Delhi District Court
Shri Nitin Kumar Garg vs South Delhi Municipal Corporation on 27 January, 2018
IN THE COURT OF SHRI GIRISH KATHPALIA,
DISTRICT & SESSIONS JUDGE
SOUTH EAST : SAKET COURT, NEW DELHI.
MCD APPEAL NO. 08/2017
SHRI NITIN KUMAR GARG
S/O LATE SHRI ANJANI VIR GARG
R/O B152, THIRD FLOOR
EAST OF KAILASH, NEW DELHI
...APPELLANT
VERSUS
SOUTH DELHI MUNICIPAL CORPORATION
THROUGH ITS COMMISSIONER
CIVIC CENTRE, NEAR ITO
NEW DELHI
...RESPONDENT
Date of filing : 15.07.2017 First date before this court : 17.07.2017 Arguments concluded on : 25.01.2018 Date of Decision : 27.01.2018 APPEARANCE : Shri Ayush Gupta, counsel for appellant Ms. Lata Lochav, learned counsel for SDMC J U D G M E N T
1. By way of this appeal, brought under the provisions of Section 347D of the Delhi Municipal Corporation Act, the appellant has assailed order dated 13.07.2017 of the learned Additional District & Sessions Judge cum Presiding Officer, Appellate MCD Appeal No. 08/2017 Nitin Kumar Garg VS SDMC Page 1 of 11 pages Tribunal, MCD (hereinafter referred to as " the learned ATMCD") whereby the appellant's application under Section 5 Limitation Act was dismissed. In the present appeal, after preliminary hearing on 24.07.2017, operation of the demolition order dated 13.12.2016 was stayed till next date and notice was issued to the respondent SDMC. On the next date, 11.09.2017, after hearing both sides as well as counsel for an intervenor, by way of detailed reasoned order, appellant's request for extension of stay of demolition was declined and the respondent was directed to file reply. Order dated 11.09.2017 of this court was challenged by the appellant by way of WP(c) 8938/17 in which vide order dated 07.11.2017, the Hon'ble Delhi High Court directed this court to expedite the hearing of the stay application and the appeal, preferably on the adjourned date or within a month thereof. Copy of the order dated 07.11.2017 of the Hon'ble Delhi High Court was received by this court on 01.12.2017; and the date already fixed in this court was 25.01.2018. On 25.01.2018, I heard final arguments on the present appeal.
2. Briefly stated, the dispute pertains to an unauthorized construction in the shape of third floor (hereinafter referred to as "the said property") on property bearing no. B152, East of Kailash, New Delhi. The appellant, who was residing in one room set in the said property since the year 2007, purchased half portion of the said property by way of registered sale deed on 05.10.2015 and MCD Appeal No. 08/2017 Nitin Kumar Garg VS SDMC Page 2 of 11 pages thereafter, allegedly with consent of other owners of the premises he raised construction in the open portion of the said property but after completion of construction, owners of the ground floor lodged a complaint against the appellant. Under the provisions of Section 343 of DMC Act, a demolition order dated 13.12.2016 was passed pertaining to the said property. Against the said demolition order dated 13.12.2016, the present appellant filed an appeal before the learned ATMCD on 29.06.2017 alongwith an application under Section 5 Limitation Act, which application was dismissed by the learned ATMCD by way of impugned order dated 13.07.2017.
3. Appeal against the said demolition order dated 13.12.2016 was to be filed by the present appellant before the learned ATMCD within six days but as mentioned above, the appeal was filed after a delay of more than six months on 29.06.2017. The said delay of more than six months in filing appeal before the learned ATMCD was explained by the appellant on the ground that he received a copy of the demolition order only on 05.05.2017, that too when he applied for the same under the RTI Act. The other ground set up by the appellant, explaining delay of six months in filing of appeal before the learned ATMCD was that regularization application dated 22.03.2017 of the appellant was pending before the respondent SDMC. By way of impugned order, the learned ATMCD after discussing various judicial precedents MCD Appeal No. 08/2017 Nitin Kumar Garg VS SDMC Page 3 of 11 pages dismissed the application under Section 5 Limitation Act of the appellant. Hence the present appeal.
4. On behalf of appellant, learned counsel took me through records and contended that the impugned order is not sustainable in the eyes of law. It was contended by learned counsel for appellant that according to copies of RTI record filed by the appellant, a copy of demolition order was dispatched to the appellant only on 02.05.2017 by way of speed post no. 740, mentioned on the top right hand corner of page 32 of the paper book, which shows that the demolition order was received not before 05.05.017. It was further contended by the learned counsel for appellant that since regularization application of appellant was pending, he had a reasonable cause not to file appeal before the learned ATMCD within six days of the demolition order. Learned counsel for appellant placed reliance on the judgment of the Hon'ble Supreme Court of India in the case of Vedabai alias Vaijayanatabai Baburao Patil vs Shantaram Baburao Patil, AIR 2001 SC 2582.
5. Per contra, learned counsel for respondent SDMC argued that the appellant has setup false case that till 05.05.017 he did not receive a copy of the demolition order. Learned counsel for respondent SDMC placed on record copies of documents in MCD Appeal No. 08/2017 Nitin Kumar Garg VS SDMC Page 4 of 11 pages support of her contention that the appellant was duly served with a show cause notice as well as the demolition order immediately.
6. At this stage, it would be apposite to traverse through the legal position.
7. As per law settled by a catena of judicial pronouncements, under Section 5 of the Limitation Act, delay in filing an appeal or an application other than the one under Order 21 CPC may be condoned by the court in its discretion where the applicant satisfies the court that he had sufficient cause for not preferring the appeal or application within time prescribed by law. The expression "sufficient cause" refers to the cause which is beyond the control of the applicant. Discretion under this provision, like any other discretion has to be exercised judiciously by the court. It is also trite that the court has to be liberal while dealing with such applications, but at the same time being "liberal" does not mean "to allow" such application in every case. The expression "sufficient cause" varies from case to case and has to be examined on the basis of peculiar factual matrix of each case. Where sufficient cause is shown, delay of months can be condoned, but where sufficient cause is lacking, delay of even a single day cannot be condoned. Broadly speaking, the test applicable in order to ascertain whether the cause setup explaining the delay is a MCD Appeal No. 08/2017 Nitin Kumar Garg VS SDMC Page 5 of 11 pages sufficient cause or not is, as to whether the cause that led to delay was beyond the control of the applicant and if so, it is a sufficient cause, which calls for delay condonation.
8. As held by the Hon'ble Supreme Court of India in the celebrated judgment of Ram Lal vs Rewa Coal Fields Ltd., AIR 1962 SC 361, while construing Section 5 of the Limitation Act, it is relevant to bear in mind that the expiration of limitation period for filing appeal gives rise to a right in favour of the decree holder to treat the decree as binding between the parties and this legal right which has accrued to the decree holder by lapse of time should not be light heartedly disturbed. The Hon'ble Supreme Court of India further held that proof of sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the court but even after sufficient cause has been shown, a party is not entitled to condonation of delay as a matter of right.
9. In the case of Shubhra Chit Fund vs Sudhir Kumar, 112 (2004) DLT 609, the Hon'ble Delhi High Court held that too much latitude and leniency will make the provisions of the Limitation Act otiose which approach must be eschewed by the Courts.
MCD Appeal No. 08/2017 Nitin Kumar Garg VS SDMC Page 6 of 11 pages
10. In the case of Finolux Auto Pvt. Ltd. vs Finolex Cables Ltd., 136 (2007) DLT 585 DB, a Division Bench of the Hon'ble Delhi High Court observed thus:
"In this regard, we may refer to a decision of the Supreme Court in P.K. Ramachandran vs State of Kerala, IV (1997) CLT 95 (SC) = AIR 1998 SC 2276. In the said decision the Supreme Court has held that unless and until a reasonable or satisfactory explanation is given, the inordinate delay should not be condoned. In para 6 of the judgment, the Supreme Court has laid down in the following manner :
"Law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribed and courts have no power to extend the period of limitation on equitable grounds. The discretion exercised by the High Court was, thus, neither proper nor judicious. The order condoning the delay cannot be sustained".
11. In the case of Vedabai (supra) also, relied upon by learned counsel for appellant, the Hon'ble Supreme Court of India held that no hard and fast rule can be laid down and the court has to exercise the discretion on facts of each case keeping in mind that in construing the expression "sufficient cause" the principle of advancing substantial justice is of prime importance.
12. At the very outset, it would be necessary to take note of the relevant dates. The demolition order was passed on 13.12.2016;
MCD Appeal No. 08/2017 Nitin Kumar Garg VS SDMC Page 7 of 11 pages the limitation period for filing an appeal before the learned ATMCD expired on 19.12.2016; according to the appellant, copy of the demolition order was received by him on 05.05.2017 in response to his RTI application while according to the respondent, copy of the demolition order was served on the appellant on 14.12.2016; the appellant filed appeal before the learned ATMCD on 29.06.2017.
13. It is with the above understanding of law that version of the appellant needs to be scrutinized as to whether the appellant was prevented by a cause beyond his control in filing the appeal before the learned ATMCD within time prescribed by law.
14. As regards contention of the appellant that he did not receive the demolition order dated 13.12.2016 till 05.05.2017, the contention is absolutely false. Respondent SDMC has placed on record, with list dated 25.01.2018 copies of documents which clearly reflect that initially the show cause notice dated 01.12.2016 was issued to the appellant but he was not found available at the site, so fresh efforts were done and on 05.12.2016, the appellant found present at the site refused to accept the notice, so on 06.12.2016, the notice was pasted at the site; that a copy of demolition order dated 13.12.2016 was issued to the appellant but he was not found available at the site on 14.12.2016, so the copy of the demolition order was pasted at the site on 15.12.2016; that the exercise of MCD Appeal No. 08/2017 Nitin Kumar Garg VS SDMC Page 8 of 11 pages pasting of the show cause notice as well as demolition order were carried out in presence of two witnesses under their signatures.
15. The reference number and date of speed post, referred to by learned counsel for appellant at page 32 of the paper book is not the particulars of dispatch of the demolition order, as tried to be projected by learned counsel for appellant.
16. False plea of delayed service of demolition order in itself is a sufficient ground to reject the present appeal.
17. Moreover, even going by the appellant's case that he received a copy of demolition order on 05.05.017, the appeal before the learned ATMCD should have been filed by 11.05.2017. There is no reasonable explanation as to why the appeal was not filed before the learned ATMCD till 29.06.2017.
18. Contention of the appellant that on account of pending regularization request, the appellant did not file appeal in time before the learned ATMCD also is meritless. For, admittedly the regularization request was filed on 22.03.2017 while the demolition order had already been served on the appellant on 15.12.2016. During the period from 15.12.2016 to 22.03.2017, there was no such pendency of regularization request. Besides, also admittedly by the MCD Appeal No. 08/2017 Nitin Kumar Garg VS SDMC Page 9 of 11 pages time the appeal before the learned ATMCD was filed, the regularization request was still pending, so it remains unexplained as to why the appeal before the learned ATMCD was filed on 29.06.2017 if pendency of regularization request was considered so important by the appellant.
19. Further, in the case of People All India Anti Corruption & Crime Prevention Society (Regd.) vs SDMC, WP(C) 3147/2017, decided on 16.05.2017 by the Division Bench of the Hon'ble Chief Justice of the Delhi High Court, it was held that compounding can only be of a genuine mistake and the provisions for compounding do not create any right on a person to deliberately construct in violation of the sanctioned building plan and the law, and then claim entitlement to compounding. Therefore, even the alleged pendency of regularization request cannot be sanctified as sufficient cause for present purposes.
20. From photographs placed on record by the appellant, it is also clear that till 31.05.2017 and even thereafter till 28.06.2017, construction work in the suit property was continuing though the appellant had, through his counsel submitted before the Hon'ble Delhi High Court on 31.05.2017 in WP(C) 4787/17 that he would not carry out further construction in the suit property. That lends credence to the argument of SDMC that the appellant deliberately MCD Appeal No. 08/2017 Nitin Kumar Garg VS SDMC Page 10 of 11 pages delayed filing of the appeal before the learned ATMCD so that he could continue the illegal construction and thereafter claim regularization.
21. To summarize, the appellant set up his case on absolute falsehood that he did not receive copy of the demolition order dated 13.12.2016 till 05.05.2017; the appellant failed to explain as to why the appeal before the learned ATMCD was not filed immediately even after 05.05.2017; and the appellant continued with the construction despite his statement dated 31.05.2017, before the Hon'ble Delhi High Court, not to do so. The appellant failed to raise even a whisper that he was prevented by any cause beyond his control from filing appeal before the learned ATMCD during the inordinate period of more than six months.
22. Therefore, I am unable to find any infirmity in the impugned order dated 13.07.2017 of the learned ATMCD and the same is upheld. Appeal is accordingly dismissed. A copy of this judgment be sent to the learned ATMCD and file be consigned to records.
Announced in the open court on this 27th day of January, 2018 (GIRISH KATHPALIA) District & Sessions Judge South East, Saket Courts New Delhi 27.01.2018 (a) MCD Appeal No. 08/2017 Nitin Kumar Garg VS SDMC Page 11 of 11 pages