Central Information Commission
Shri.Vijay Khandelwal vs Mcd, Gnct Delhi on 10 February, 2012
CENTRAL INFORMATION COMMISSION
Club Building (Near Post Office)
Old JNU Campus, New Delhi - 110067
Tel: +91-11-26161796
Decision No. CIC/SG/A/2011/003551/17305
Appeal No. CIC/SG/A/2011/003551
Relevant Facts emerging from the Appeal
Appellant : Mr. Vijay Khandelwal
R/o: 3610-12, Chawri Bazar,
Delhi - 110006.
Respondent : PIO & DLO
Law Department, MCD 17th floor, Dr. SPM Civic Centre, Minto Road, New Delhi - 110002.
RTI application filed on : 21/06/2011 PIO replied : 30/06/2011 First appeal filed on : 11/08/2011 First Appellate Authority order : 07/09/2011 Second Appeal received on : 09/12/2011 Information Sought:
1. Is it a fact that the sealing of Buildings was resorted to by MCD in pursuance of orders passed by the Hon'ble Supreme Court, Monitoring Committee or Court Commissioners constituted by the Hon'ble Supreme Court vide order dated 18.01.2006.
2. Is it a fact that hitherto by any Court of law and particularly in the matter of Shri MC Mehta Versus Union of India and others in which DMC is one of the respondents, the Hon'ble Supreme Court is the interim Orders passed from time to time, no CHAPTER OF DMC Act, 1957 and provisions contained therein including the Schedules annexed thereto, relevant Bye-laws and Regulations etc. have been declared unconstitutional, ineffect6ive or redundant. Consequently the DMC (Amendment) Act, 2003 attains complete legal sanctity and the DMC is liable to discharge duties in accordance with statutory provisions contained therein.
3. Is it correct that while passing order for sealing of Buildings, by the Hon'ble Supreme Court, the Monitoring Committee or Court Commissioners, no direction was issued to DMC to execute orders at the cost of violation and/or non-compliance of statutory provisions of the DMC Act and/or applicable Bye-laws & Regulations etc.
4. Is it correct that in the order dated 16.02.2006 passed by the Hon'ble Chief Justice of the Supreme Court of India, it was held that after the handing over of the Area to the Local Authority under Section36 of the Delhi Development Act, 1957, the power of demolition and/or sealing is conferred on the Local Authority by whom power of action is to be exercised for contravention, in accordance with provision of the governing law.
5. Is it also correct that in the aforesaid order reference has also been made about an affidavit dated 16.11.2005 filed by DMC in which averment was made, inter alia, that notice o the proposed action of sealing or stopping misuses, shall be given to the concerned persons and an opportunity of hearing shall also be given.
6. Is it correct to infer that the aforesaid declaration was made in the Affidavit to meet requirement if principle of natural justice which impliedly contemplates following procedure.
Page 1 of 7i) Issuance of SHOW CAUSE NOTICE.
ii) Consideration of reply filed in best defence,
iii) An opportunity of personal hearing
iv) In the event of rejection of pleas of defence, issuance of SPEAKING ORDER.
7. Is it also a fact that any order or direction which is in repugnance to and inconsistent with the statutory provision of the governing Law and which is appellable, does not stand test of validity will the same is ratified reviewed, rectified and/or rescinded by the final Appellate Authority.
8. Is it correct that in the above context, to serve the cause of justice, the only legal remedy available under the DMC Act, to the aggrieved person, is to file an Appeal with the Appellate Tribunal constituted under section 347-A of the DMC Act, 1957. The Appeal is to be filed within 30 days under Section 347-B of the DMC Act by pursuing the procedure laid down under Section 347-C of' the DMC Act.
9. Is it correct that to enable any aggrieved person to file an Appeal, in terms of provision contained in Sub-Section (2) of Section 347-B of the DMC Act, it is necessary that the Appellant is furnished with the ORDER OR NOTICE, justifiably so as the grounds of Apeal enumerate from the contents the ORDER OR NOTICE, appealed against.
10. Is it also universal Rule of Law that in such matters which bear provision to file an Appeal within prescribed period, no order can be treated final and enforced without awaiting outcome of the Appeal, as also fully borne out from ORDER 21 RULE 11 (2)-READ WITH ORDER 21 RULE 26 OF THE CODE OF CIVIL PROCEDURE. If any action is taken otherwise, RIGHT OF APPEAL SHALL BE RENDERED. INFRUCTUOUS AND MEANINGLESS, prejudicial to interest of aggrieved person.
11. Is it correct that in the matter of Kalyan Sansthan Samiti Welfare Organization V/S Union of India & others reported in 152 (2008) DLT 767 (DB) (Delhi), the issue of power and authority of the Monitoring Committee and that of the Court Commissioners, was considered by the Hon'ble Court. In the delivered judgment it is recorded that as per statement made by the Court Commissioners
(i) Powers of DMC have not been usurped.
(ii) Only irregularities and illegalities have been pointed out to DMC.
(iii) Action taken by DMC is strictly in accordance with law and the statutory remedies are not being by passed or eroded.
12. Is it correct that in the various judicial judgments the gist of which is given in the citation of cases in the ANNEXURE "A", clear guidance has been provided in respect of various relevant aspects arising out of the provisions of the DMC Act etc. and the extracts quoted in the said Annexure "A" depict true essence of orders/observations of the Hon'ble Court.
13. In the light of foregoing observations, is it untrue to state that the DMC in utter disregard of statutory provision of the DMC Act coupled with other relevant factors, arising out of governing Law, Rules, Bye-laws etc. embarked upon process of sealing of Buildings in unilateral, illegal and, unconstitutional manner as elaborated below:
(i) As and when any direction was received from the Monitoring Committee, the action of sealing was taken with utmost expediency without compliance of mandatory legal and technical formalities referred to Para 6 Supra. Even the declaration made in the Affidavit dated 16.11.2005 referred to in Para 5 Supra, was not adhered to.
(ii) No Show Cause Notices were issued and served upon the Property Owners/ Occupiers concerned.
(iii) No reasonable opportunity was given to submit best defence and/or to adduce supporting evidence.
(iv) No opportunity of personal hearing was given.
(v) In final disposal, of the matter, no SPEAKING ORDER was passed and furnished to the person concerned. Due to aforesaid significant technical lacunates which reflected serious procedural irregularities, virtually a situation arose under which, in view of embargo to approach Court under Page 2 of 7 Section 347E of the DMC Act, statutory right to file an appeal with Appellate Tribunal was snatched away THIS RESULTED IN GRAVE MISCARRIAGE OF JUSTICE.
14. In case above assertion is sought to be controverted, an information is sought as under:
(i) Since 16.11.2005 up to 31.03.2011 how many properties were sealed?
(ii) How many Show Cause Notices were served upon Property owner concerned during the above period and how much time was allowed to submit reply.
(iii) How many persons to whom Show Cause Notices were issued, were given an opportunity of personal hearing?
(iv) In how many cases SPEAKING ORDERS were passed and furnished to the persons concerned?
(v) In how many cases falling under Section 347 of the DMC Act, Appeal was filed and with what result?
(vi) Whether during pendency of the Appeal, sealing process was suspended or action was taken otherwise?
15. Is it correct that in case violation of Section 347 is established, it constitutes cognizable offence under Section 466 A (a) of the DMC Act. However, for prosecution, Section 467 (a) of the DMC Act lays down that the Court shall proceed with the matter if complaint is filed by the designated officer of MCD.
16. Is it correct that for filing of complaint provisions of Section 471 of the DMC Act are very much relevant which lays down six months period to file. complaint before a Municipal Magistrate. Six months period is to be reckoned from the date of knowledge acquired by the complainant regarding offence committed. Similar limitation period of six months is prescribed in Section 468 (2) (a) of the Code of Criminal Procedure.
17. As for the purpose of lodging complaint under Section 471 of the DMC Act, THE DATE OF KNOWLEDGE QF COMMITMENT OF OFFENCE UNDER SECTION 347 OF DMC ACT CONSTITUTES VERY CRUCIAL AND VITAL POINT. Is it correct that knowledge of Municipal Authorities about actual use of the particular premises in any particular Area, is amply established and open to verification from own record maintained by MCD which also constitutes legally admissible evidence under section 493 of the DMC Act, as under:
(a) Municipal Assessment Book maintained under Section 124 of the DMC Act in which fill particulars of each and every land and Building including use thereof are recorded for the purpose of levy of Property Tax. On the basis of use for the purpose of residence or non-residence.
(b) Returns filed by Assessees under DMC (Property Tax Return) Bye-Laws, 1994.
(c) The Delhi Municipal Corporation (Property Taxes) Bye-Laws, 2004.
(d) As per Property Tax Guide 2004 and onward published by DMC, in which formula specified for calculation of tax on Unit Area System basis, also included OCCUPANCY AND USE FACTOR.
18. In the light of facts stated in Para No. 17 supra, information is sought as to under Section 466 A (a) read with Section 467 (a) of the DMC Act 1957, in which period, how many complaints pertaining to offence committed under Section 347 for alleged mis-user of the premises, were filed under Section, 471 of the DMC Act before Municipal Magistrate within limitation period of six months. Details thereof be furnished.
19. If it transpires that despite full knowledge about violation of Section 347, statutory provision of Section 471 of the Act was not availed of, is it unjustified to thaw conclusion that even if irregularities occurred, they will be deemed to have been regularized and no penal action of any nature can be taken at belated stage against offenders.
20. Whether ever any Public Notice under Section 419 of the DMC Act purported to prevent use of the premises for commercial purpose, in any Area under jurisdiction of DMC was issued by DMC. If so, details there of. If no Public Notice was issued reasons thereof be assigned.
21. Is it a fact that a Circular dated- 02.03.1968 was issued by the co-ordination Cell of the MCD regarding misuse of Residential Buildings vide which 10 Categories of Users were exempted from Page 3 of 7 action under Section 347 of the DMC Act; If so, list of 10 Categories of exempted categories is required to be furnished.
22. Is it correct that a Booklet under the heading "YOUR GUIDE TO FACTORY LICENSING"
dated 10.4.1996 was published by MCD in which it was clarified that Local Commercial Area are those Areas as are declared by the DDA from time to time for the purpose of Trade Licence.
23. In the light of above clarification, information is sought as to since the Year-1962 up to 31.03.2011 which Areas have been declared by DDA as Local Commercial Areas. A list thereof is required to be furnished.
24. Is it a fact that a Circular dated- 06.09.1984 was issued by Addl. D.C. (Central Licensing and Enforcement Cell), Town Hall to convey information that 10 notified Bazars shall also be treated as Local Commercial Areas. If so, detail thereof be furnished.
25. Is it a fact that vide Circular bearing no. 00 NOL1 71CLC168 dated 10.01.1969 Central Licensing Cell of MCD at Town Hall released a list of Local Commercial Areas (Location in which trades have been permitted in-Local Commercial Sub-District under Special Appeal). If so, detail of the notified Areas as above, is required to be furnished.
26. Is it known to the Municipal Authorities that Labour Department of Delhi Administration for the purpose of registration of Commercial or Industrial Establishments, under the Delhi Shop and Establishment Act, -with concurrence of Hon'ble Lieut. Governor, maintains Alphabetical list of Commercial Markets. Enquiry is sought whether in the light of above fact, coordination with Labour Department was established for the purpose of identification of Commercial and Mixed Use Areas.
27. Is it correct that-
(i) Vide MCD OrderNo. 8/EE (B)H.I/92 dated 08.12.1992.
(ii) Vide MCD Communication No. PSC/CD/26/98 dated 17.08.1998.
(iii) Vide Public Notice-cum-Press Release dated 27.11.1998 of MCD, relaxed policy of regularization of irregularities in any Building, was publicized by Commissioner, MCD. If so, how many properties were got regularized and how much revenue was earned by MCD by way of receipt of prescribed charges.
28. Is it a fact that under the above noted policy, regularization was made, irrespective of nature of use of the premises. Consequently even the offence of misuse, is liable to be deemed to have been regularized / compounded under Section 468 of the DMC Act and no person can be punished again for the same offence as per provisions of this Section.
29. Is it correct that under given circumstance protection for violation of Section 347 of the DMC Act, is granted under the statutory provisions cited below:
(a) Provision to Section 14 of the DD Act, 1957.
(b) Definition of "EXISTING BUILDING ON USE" as given vide By-Law 2.25 of the Building By-Laws, 1983.
(c) Definition of "EXITING APPROVED BUILDING" as given vide Bye-Law 3.7 of the Modified Delhi Building Bye-Laws, 2003.
(d) Offence regularized / compounded under the above mentioned relaxed policy.
30. Complete up to date list is sought to be furnished in respect of the following:
(a) Local Commercial Areas as identified by MCD.
(b) Mixed Land Use Areas as identified by MCD.
(c) Pedestrian Streets as identified by MCD.
(d) Local Commercial Areas under Special Appeal or otherwise declared by DDA since 1962 up to date.
31. Is it true that during the Suit proceedings the 4-Ion'ble Court was kept in dark about important facts and events mentioned above and in particular about the following aspects of the matter:
(i) Bar of jurisdiction of Court under Section 347 E of DMC Act.
(ii) Only judicial remedy -- Appeal to Appellate Tribunal under Section 347 B of DMC Act.
(iii) Limitation period for prosecution against violation of Section 347 of DMC Act, under Section 466A, 467 and 471 of DMC Act.Page 4 of 7
(iv) Deemed regularization /composition of offences committed under Section 347 of the DMC Act, under the relaxed policy of the Central Govt.
(v) Protection granted under the Proviso to Section 14 of D.D. Act and Building Bye-laws.
(vi) Implications arising out of notifications of MPD, 1962, MPD, 2001 and MPD, 2021 and relevant Regulations etc. given prospective effect.
(vii) Relief granted in various relevant matters by the Hon'ble Supreme Court by judgment delivered from time to time.
(viii) In general immunity from prosecution against alleged offences, enjoyed for reasons attributed to various acts of omissions and commissions perpetuated on the part of Executive Wing of MCD, including serious procedural irregularities committed in execution of order of sealing by brushing aside statutory relevant provisions of the DMC Act, etc., as apparent from the proceedings in the case of M.C. Mehta V/S Union of India & Ors perusal of which reveals that neither any reference is made about the aforesaid facts, nor they have been discussed and findings recorded by the Hon'ble Court.
32. Is it correct that for the purpose of licence for trade and Storage under Section 417 of the items for which licence is necessary, are listed in Part I & II of the Eleventh Schedule. Enquiry is sought whether any modification has been carried out in the list of Articles specified in The Eleventh Schedule. If so, Detail thereof.
33. Is it correct that the Twelfth Schedule prescribes amount of fine which may be imposed for offences committed under notified provisions of the DMC Act. In this regard clarification is sought whether the Municipal Magistrates are empowered to impose fine in excess to the scale of fine specified in the said schedule, by exercising discretionary power?
34. Is it correct that for issuance of Trade Licenses under Section 417 of the DMC Act, in or about 1964 Bye-laws were framed by MCD. If so, whether any modification has been made in the said Bye-/ laws and if so, detail thereof be furnished.
35. Is it correct that the Hon'ble Court has directed MCD not to issue Trade Licenses under Ad-Hoc Licensing Policy. Does it mean that there is no bar in issuing regular licenses in the Local Commercial Areas as identified by MCD and / or notified by DDA.
36. Is it correct that the present prescribed conditions for issuing Trade Licenses, apart from being harsh, undemocratic, irrelevant and impracticable, are completely inconsistent with the said Bye-laws. As such legal validit/ of prescribed terms & conditions poses question mark.
37. What steps are being taken by DMC to safeguard interest of Traders who are keen to procure licenses, to restore conditions in conformity with those laid down in the aforesaid Bye-laws.
38. Is it correct that in Past-I of the Eleventh Schedule which at present is confined to only 96 specified items, no additional items can be added without seeking modification in the schedule.
Reply of the Public Information Officer (PIO):
Point no. 1 to 13: The applicant while referring to various orders of Hon'ble Supreme Court and High Court regarding sealing and demolition of property having unauthorized construction and various provisions of Law is trying to seek legal opinion or statement which is beyond the scope of RTI Act, 2005 and as such cannot be replied.
14. (i) No information as sought is available with Law Department.
(ii) No information as sought is available with Law Department.
(iii) No information as sought is available with Law Department.
(iv) No information as sought is available with Law Department.
(v) No information as sought is available with Law Department.
(vi) lnformation sought is vague because no specific case particulars have been supplied. In any case, the applicant may inspect the records of the Law Department during working hours of any Page 5 of 7 working day (on prior appointment) and get the copy of relevant document by depositing Rs.2/- per page.
(vii)The information sought is not available with the Law Department. Point No.15-17: The contents of the said application are in the nature of seeking legal opinion which is beyond the scope of RTI Act, 2005. Further, no information as sought is available with the Law Department [HQ].
18. Information sought is vague because no specific case particulars have been stated about which the information is required. In any case, applicant may inspect the record and get copy of relevant document by depositing Rs. 2/- per page.
19. The contents of the said application are in the nature of seeking legal opinion which is beyond the scope of RTI Act, 2005. Further, no information as sought is available with the Law Department [HQ].
20 to 25: The information sought is not available with the Law Department.
26. Does not pertain to Law Department.
27. The information sought is not available with the Law Department.
28. The information sought is not available with the Law Department as the same is in the nature of seeking opinion.
29. The contents of the said application are in the nature of seeking legal opinion which is beyond the scope of RTI Act, 2005. Further, no information as sought is available with the Law Department [HQ).
30. The information sought is not available with the Law Department.
31. The contents of the said application are in the nature of seeking statement which is beyond the scope of RTI Act, 2005. Further, no information as sought is available with the Law Department (HQ).
32. The information sought is not available with the Law Department.
33. The contents of the said application are in the nature of seeking legal opinion which is beyond the scope of RTI Act, 2005. Further, no information as sought is available with the Law Department [HQ].
34. The information sought is not available with the Law Department.
35. The contents of the said application are in the nature of seeking legal opinion which is beyond the scope of RTI Act, 2005. Further, no information as sought is available with the Law Department [HQ].
36. The contents of the said application are in the nature of seeking legal opinion which is beyond the scope of RTI Act, 2005. Further, no information as sought is available with the Law Department [HQ].
37. Does not pertain to Law Department.
38. The contents of the said application are in the nature of seeking legal opinion which is beyond the scope of RTI Act, 2005. Further, no information as sought is available with the Law Department [HQ].
Grounds for the First Appeal:
Unsatisfactory reply was provided to the appellant by the PIO.
Order of the First Appellate Authority (FAA):
"I have gone through the RTI Application, the reply submitted by the PIO and the issues raised in Appeal. I find that in the application under RTI Act, the appellant has worded his questions in the RTI Application as "Is it a fact that , 'Is it correct that which are in the nature that elicit the opinion of the PIO and this cannot be disposed under the RTI Act. As regard appellant's contention that 'opinions' means 'information', it is my view that the 'opinions' falling under the definition of 'information' in the RTI Act are the 'opinions' already available in the record which is not same as eliciting opinion of the PIO in response to RTI query. To this extent, the PIO has disposed the RTI query correctly."Page 6 of 7
Grounds for the Second Appeal:
Unsatisfactory Information.
Relevant Facts emerging during Hearing:
Both the parties were given an opportunity for hearing. However, neither party appeared. From a perusal of the papers it appears most of the queries of the Appellant did not seek information which would be a matter of record. In a number of queries the Appellant ahs sought the opinion of the PIO or requires the PIO to determine the veracity of certain points. This is not information as defined under Section 2(f) of the RTI Act.
Decision:
The Appeal is disposed.
This decision is announced in open chamber.
Notice of this decision be given free of cost to the parties. Any information in compliance with this Order will be provided free of cost as per Section 7(6) of RTI Act.
Shailesh Gandhi Information Commissioner 10 February 2012 (In any correspondence on this decision, mention the complete decision number.) (PG) Page 7 of 7