Delhi District Court
M/S. Delhi Tourism And Transportation vs Municipal Corporation Of Delhi on 21 January, 2020
IN THE COURT OF MR. DHARMESH SHARMA
DISTRICT & SESSIONS JUDGE : WEST DISTRICT
TIS HAZARI COURTS : DELHI
RCA No. 61189/2016
CNR No. DLWT01-005330-2016
M/s. Delhi Tourism and Transportation
Development Corporation Limited
18-A, DDA Shopping-cum-Office Complex
Defence Colony, New Delhi. . . . . . . Appellant
Versus
Municipal Corporation of Delhi
Through its Commissioner
North Delhi Municipal Corporation
4th Floor, Civic Centre
Minto Road, New Delhi. . . . . . . Respondent
Date of Institution : 10.08.2016
Date of hearing arguments : 06.01.2020
Date of judgment : 21.01.2020
Appearances:
Sh. R. K. Dhawan, Advocate for the appellant.
Sh. Dharamvir Gupta, Advocate for the respondent.
JUDGMENT
1. This judgment shall decide an appeal preferred by the Appellant Corporation under Section 347D of the Delhi Municipal Corporation Act, 1957 (66 of 1957) (hereinafter referred to as 'the DMC Act'), whereby the judgment dated 08.07.2016 passed by Mr. Sanjeev RCA-61189/2016 M/s. Delhi Tourism & Transportation Development Corporation v. MCD Page 1 of 11 Kumar, Ld. Presiding Officer, Appellate Tribunal, Municipal Corporation of Delhi, Tis Hazari Courts, Delhi (hereinafter referred to as 'the ATMCD'), whereby the appeal under Section 347B of the DMC Act challenging the sealing of the property known as Utsav Grand at NH- 10, Rohtak Road, Tikri Kalan, Delhi by the respondent MCD now North Delhi Municipal Corporation on 26.08.2011 on account of misuse was dismissed.
FACTUAL BACKGROUND
2. The case of the Appellant Corporation is that it is a Government undertaking and vide letter dated 27.12.1996, the Government of Delhi allotted it a piece of land measuring 14 Bigha 7 Biswas falling in Tikri Kalan, De;lhi for setting up Netaji Subhash Memorial Tourism Complex for a period of 99 years; and accordingly, it set up the said Memorial Tourism Complex on the portion of the land including a restaurant, further taking responsibility of looking after the horticulture and open green area known as "Azad Hind Gram Tourist Complex". It is stated that the Appellant Corporation vide license agreement dated 01.10.2004 granted lease for running of restaurant to M/s. Kapoor tent and Caterers for a period of five years at Azad Hind Gram Tourist Complex; but at the expiry of the said licence agreement, the said licensee did not vacate the restaurant and thereafter, the Appellant Corporation initiated proceedings for recovery of damages and eviction of the licensee from the subject site.
RCA-61189/2016 M/s. Delhi Tourism & Transportation Development Corporation v. MCD Page 2 of 113. The grievance of the Appellant Corporation is that the Respondent Corporation sealed the premises on 26.08.2011 without issuing any notice/communication to it. Although vide letter dated 26.06.2013, the Appellant Corporation apprised the Respondent Corporation that it had never allowed the erstwhile licensee to deviate from the structure and also bringing to fore that the license given to run the restaurant had already expired, and thereby it sought de-sealing of the premises situated at Azad Hind Gram Tourist Complex on furnishing an affidavit that thenceforth it would abide by all the directions to use the premises and would never deviate or misuse the same in any manner, but in vain.
4. The de-sealing of the property was sought on the grounds that the Appellant Corporation never raised any unauthorised or illegal construction on any part of the property and never carried out any alteration, damages or addition in the structural nature of the Tourist Complex contrary to MPD-2021; and that the area of restaurant was not more than 8/10 Hair 1% of the District Park and the same had no physical segregation from the rest of the park area; and that no proper hearing prior to sealing of the property in question was accorded.
5. The Ld. ATMCD on filing of the appeal under Section 347B of the DMC Act, issued notice to the Respondent Corporation as well as to the Monitoring Committee appointed by the Hon'ble Supreme Court in the case M. C. Mehta vs. Union of India. A status report was filed by the Monitoring Committee bearing No. 462 dated 08.03.2016 RCA-61189/2016 M/s. Delhi Tourism & Transportation Development Corporation v. MCD Page 3 of 11 which narrated that the Utsav Grand restaurant was sealed on 26.08.2011 as the place was being used for holding social / marriage functions, etc. without getting valid permission from the MCD and was being misused in gross violation of provisions of MPD-2021 amd Delhi Building Byelaws. The status report referred to the report by the ADM- cum-Director (P), Delhi Administration vide letter dated 27.12.1996 which stipulated that the land could not be put to commercial use but the Appellant Corporation without obtaining any sanction for the building plans and licenced the portion to M/s. Kapoor Tent and Caterers for running the restaurant, three kiosk, conferences-cum- banquet hall for organizing conferences, parties and marriage functions, and further pointing out that the green area was used for putting up temporary wedding pandals by the licensee with responsibility to lookafter the horticulture and maintenance of open green area measuring 3022.88 sq. meters. It was also pointed out that on field/site survey on 28.04.2014, despite sealing of the property on 25.08.2011, M/s. Kapoor Tent and Caterers tempered with the seal affixed by the Respondent Corporation and illegally organized social / marriage functions, that amounted to perjury and contempt of the Court.
6. It was also found during the course of appeal under Section 347B of the DMC Act that the Appellant Corporation had informed the MCD that the seal had been tempered by M/s. Kapoor Tent and Caterers for organizing social / marriage functions on 27.11.2014, 30.11.2014, 08.02.2015 and 10.03.2015 and thereafter, RCA-61189/2016 M/s. Delhi Tourism & Transportation Development Corporation v. MCD Page 4 of 11 Assistant Commissioner, Narela Zone wrote a letter dated 23.04.2015 to SHO, Mundka Police Station for initiating criminal proceedings against the said offenders.
7. In the said facts and circumstances, the Appellant Corporation was called upon to pay penalty equal to ten times of annual conversion charges for entire area besides the unauthorized construction area that was misused for commercial purposes.
8. Needless to state that the Respondent Corporation towed the same line of defence as espoused by the Monitoring Committee in its report dated 08.03.2016 and it claimed penalty of Rs. 58,06,080/- from the owner/occupier as damages.
JUDGMENT OF LD. ATMCD ON APPEAL
9. Ld. ATMCD after hearing the rival submissions and after going through the relevant record found that the property in question had been misused in contravention of not only the Delhi Building Byelaws but also MPD-2021 and observed that the Appellant Corporation cannot escape from its liability to pay misuser charges merely because the licensee viz. M/s. Kapoor Tent and Caterers remained in illegal occupation after expiry of the license agreement. It found no merit in the appeal filed under Section 347B of the DMC Act and the same was dismissed directing the Appellant Corporation to pay misuse charges of Rs.58,06.080/- for de-sealing the property with an undertaking that only such activities would be carried out in the subject RCA-61189/2016 M/s. Delhi Tourism & Transportation Development Corporation v. MCD Page 5 of 11 premises as conforming to the Master Plan 2021 and in other law.
GROUNDS OF APPEAL
10. The impugned order dated 08.07.2016 passed by the Ld. AT MCD has been challenged inter alia on the following grounds:
grounds:
i) that the Appellant Corporation has not raised any illegal or unauthorized construction in any part of the property nor it has carried out addition, alterations or damages of structural nature in the same;
ii) that the premises in question falls in the category of Tourist Complex, which has been set up by the Appellant Corporation as per Master Plan 2001 and also MPD-2021 that includes and permits recreation club, open air food court and restaurant;
iii) that as per Clause 9.6 of the Master Plan 2021, area in question is a District Park and has been used as such which is not segregated from the restaurant plot;
iv) that the building is single story structure with maximum FAR of 5 and height not more than 4 metres without any residential facility that harmonizes with the surroundings;
v) that there was no violation of the Master Plan nor of the Zonal Plan at the time when premises was sealed by the order of the Monitoring Committee;RCA-61189/2016 M/s. Delhi Tourism & Transportation Development Corporation v. MCD Page 6 of 11
vi) that the license of M/s. Kapoor Tent and Caterers got expired in the year 2009, which remained in illegal and unauthorized occupation of the said license;
vii) that the possession of the premises was recovered through the orders passed by the Hon'ble High Court of Delhi and the Appellant Corporation has been awarded damages as well;
vii) that the Appellant Corporation had played no role in the unauthorized misuser of the premises during the time license was in vogue;
viii) that the construction prior to 2007 are protected vide National Capital Territory of Delhi Laws (Provision Provision Act) and the Ld. AT, MCD had failed to dealt with the said Notification; and
ix) that no financial liability can be imposed on the Appellant Corporation after sealing of the premises, which was done after illegal occupancy of the same by M/s. Kapoor Tent and Caterers.
DECISION
11. I have given my thoughtful consideration to the submissions advanced by the ld. Counsel for the parties. I have also perused the material available on record including the trial Court record.
RCA-61189/2016 M/s. Delhi Tourism & Transportation Development Corporation v. MCD Page 7 of 11JURISDICTION OF THIS COURT
12. It is necessary to reproduce Section 347D of the Act as under:-
"Appeal against orders of Appellate Tribunal.- (1) An appeal shall lie to the Administrator against an order of the Appellate Tribunal, made in an appeal under Section 343 or Section 347B, confirming, modifying or annulling an order made or notice issue under this Act.
(2) the provisions of sub-sections (2) and (3) of section 347B and section 347C and the rules made thereunder, shall, so far as may be, apply to the filing and disposal of an appeal under this section as they apply to the filing and disposal of an appeal under those sections.
(3) An order of the Administrator on an appeal under this section, and subject only to such order, an order of the Appellate Tribunal under Section 347B, and subject to such orders of the Administrator or an Appellate Tribunal, an order or notice referred to in sub-section (1) of that section, shall be final"
13. As per sub-Section (1) to Section 347D of the DMC Act, an appeal against an order passed by the 'ATMCD' lies to the Administrator, which as per Section 2(1) of the DMC Act means "The Lieutenant Governor of the National Capital Territory of Delhi". However, by virtue of decision in the case of Amrik Singh Layallpuri v. Union of India, (2011) 6 SCC 535, the appeal lies to the Court of District & Sessions Judge of the concerned District. A bare reading of the Section 343 of the DMC Act would show that it is relatable to an order of demolition and stoppage of building and also works of construction in certain cases. Similarly, Section 347-B of the DMC Act RCA-61189/2016 M/s. Delhi Tourism & Transportation Development Corporation v. MCD Page 8 of 11 refers to certain orders made or notices or proceedings initiated under Section 313, 324, 315(1), 317(2), 334, 336, 337 and 338 Etc. It is further crystal clear that sitting in appeal this Court can confirm, modify or annul any order notice made under the Act. Therefore, going by conventional jurisprudential meaning of the "appeal", this Court can re- appreciate the entire evidence on the record and may come to a different conclusion than the one reached by the 'ATMCD'.
14. Having considered the jurisdictional aspect, reverting to the instant case, I find that the appeal filed by the Appellant Corporation is devoid of any merit. First thing first, the letter of allotment of the land in question to the Appellant Corporation dated 17.12.1996 vide Clause 4(b), clearly stipulated that the land shall not be use for commercial purposes. Further, vide Clause (5) it was stipulated that it shall be the responsibility of the lessee i.e. the Appellant Corporation to obtain prior sanction from the DDA and MCD before putting up any structure even of temporary nature on the land. It was further stipulated vide Clause (7) of the letter dated 27.12.1996 that "the lessee will use the land for the purposes for it was allotted and not for any other purpose."
15. It is admitted fact that in violation of the Clause 4(b) of the allotment letter dated 27.12.1996, "Licence Agreement" dated 01.10.2004 was executed by the Appellant Corporation in favour of M/s. Kapoor Tent and Caterers, whereby Licensor created a license for running of three kiosks, conference-cum-Banquet Hall and lawn for organizing wedding pandal with responsibility of looking after the RCA-61189/2016 M/s. Delhi Tourism & Transportation Development Corporation v. MCD Page 9 of 11 horticulture and maintenance of open green area at Azad Hind Gram Tourist Complex. The Appellant Corporation cannot escape from its primary responsibility whereby it was under a mandate to ensure that the premises was put to use in conformity with the Building Bye Laws and the MPD-2021. The Appellant Corporation cannot take shelter behind the plea that violation and misuse of the premises was committed by its licensee during the period of existence of the license and thereafter. There is no denying fact that premises have been used by licensee for running a Banquet Hall without seeking any permission from the MCD that could not have gone unnoticed by the Appellate Corporation. No doubt that a dispute arose as between Appellant Corporation after the expiry of the licence dated. 01.10.2004 and the so called licensee M/s. Kapoor Tent and Caterers, and admittedly a sum of Rs. 85 lacs has since been been paid to the former i.e. Appellant Corporation by the said licensee in terms of Arbitral Award dated 20.04.2015, which Award has been upheld in OMP No. 430/15 titled as M/s. Kapoor Tent and Caterers v. DTTDC, by the Hon'ble High Court of Delhi vide Judgment dated 22.10.2017. At no stage of this long litigation, any documents have been filed that the Appellant Corporation insisting upon the licensee to use the premises in conformity with the relevant laws during the subsistence of the licence. Exfacie, the provision of National Capital Territory of Delhi Laws (Special Provision Act), 2011 have no application in the case like this.
16. In view of the aforesaid discussion, I do not find any illegality, infirmity or perversity committed by the ld. AT MCD and the RCA-61189/2016 M/s. Delhi Tourism & Transportation Development Corporation v. MCD Page 10 of 11 case of the respondent in sealing the property and insisting for misuse charges as a pre-condition of de-sealing the same cannot be faulted in law.
17. Therefore, the appeal filed by the Appellant Corporation under Section 347 D of the DMC Act is hereby dismissed and the Appellant Corporation is directed to deposit a sum of 58,06,080/- with interest @ 18% p.a. as penalty for misuser w.e.f. 20.05.2014 till payment / realization as pre condition for desealing of the property and further subject to filing an affidavit with the respondent-NDMC subject to the satisfaction of the Competent Authority undertaking the use of the subject premises only for activities sanctioned vide allotment letter dated 27.12.1996 as well as other laws on the subject. This shall be without prejudice to the respondent-NDMC taking any other action against Appellant Corporation as per law. Interim order, if any stands vacated.
18. A copy of this order be sent to the ld. 'ATMCD', THC, Delhi for information and record. The file of appeal be consigned to Record Room.
Announced in the open Court (DHARMESH SHARMA)
on 21th January, 2020 District & Sessions Judge (West)
Tis Hazari Courts: Delhi
RCA-61189/2016 M/s. Delhi Tourism & Transportation Development Corporation v. MCD Page 11 of 11