Delhi District Court
Sh Sashi Shekhareshwar Prasad Narayan ... vs The New Delhi Municipal Council on 27 February, 2012
1
IN THE COURT OF SHRI H.S. SHARMA: DISTRICT JUDGE
NEW DELHI
Unique ID No. 02403C0085202011
MCD Appeal No. 01/11
1. Sh Sashi Shekhareshwar Prasad Narayan Singh,
S/o Late Chandreshwar Prasad Narayan Singh,
R/o 2 Hailey Road,
New Delhi
2. Smt. Nalini Singh,
W/o Sh Sashi Shekhareshwar Prasad Narayan Singh,
R/o 2 Hailey Road,
New Delhi ....Appellants
Versus
The New Delhi Municipal Council,
(UACC Department)
Pragati Bhawan,
Second Floor,
Jai Singh Road,
New Delhi ..... Respondent
District Judge/PHC/ND
27/2/2012
SSPN Singh Vs. NDMC
Page No. 1 of 11
2
Date of institution of the appeal : 10022009
Date on which it was received in this court : 03112011
Date of hearing arguments : 08022012
Date of announcement of order : 27022012
Present: Ms. Avnish Ahlawat and Ms. Latika Choudhary, Advocates for the appellants.
Sh Rajender Arya, Advocate for the respondent.
ORDER:
1 This appeal is directed against the order dated 12/1/2009 passed by the Ld. Appellate Tribunal, MCD, Delhi vide which the appeal preferred by the appellant under section 247 (2) NDMC Act of 1994 ( in short ' the act') had been dismissed. 2 The facts as noticed by the Ld. Appellate Tribunal in its judgment (in para 2 ) are as under: "Briefly stated the case of the appellant as disclosed in the grounds of appeal is that the appellants have been in occupation of the premises in question for the last more than three decades. Appellant no. 2 is conducting research, information complilation and background work relating to journalism which work is neither causing any public / private nuisance in any way whatsoever. Infact, District Judge/PHC/ND 27/2/2012 SSPN Singh Vs. NDMC Page No. 2 of 11 3 the office of appellant no.2 from where other activity relating to her work is carried on is in Kanchenjunga Building, Barakhamba Road, New Delhi. As per recent notification issued by the Government relating to user of premises, professional activity is permitted on any floor even in a residential premises. Hon'ble Supreme Court has also permitted professionals to carry on their professional activity in residential premises. The Porta Cabins are not permanent construction at all and are not liable to be demolished under applicable byelaws. The impugned order has been challenged interalia on the ground that the NDMC has failed to distinguish between commercial activity and professional activity. Moreover, porta cabins are not a permanent structure and as per applicable building byelaws only illegal perment construction /structure are prohibited. Professional activity is permitted on any floor even in residential premises. Proper notice was not issued tot he appellant before passing of the order nor District Judge/PHC/ND 27/2/2012 SSPN Singh Vs. NDMC Page No. 3 of 11 4 the appellants were afforded a hearing but order has been passed on the basis of complaints filed malafide by certain persons against the appellants. The order has been passed in violation of principles of natural justice and is otherwise bad in law. As such, it was prayed that the demolition order dated 1/8/2008 passed by NDMC in so far as it relates to the porta cabin mentioned in item no.4 of the impugned order be set aside."
3 Since the Director, UACC Department, NDMC, had found that unauthorized construction carried out in the premises bearing no.2, Hailey Road, New Delhi (hereinafter the premises in question) were without prior approval and were contrary to the rules envisaged u/s 241 of the Act, therefore, demolition notice dated 1/8/2008 had been issued to the appellants and three more persons namely Sh A.P.N.Singh, Smt. Rajshree Singh and Smt. Jai Shree Singh. It is a fact that Sh. A.P.N.Singh, Smt. Rajshree Singh and Smt. Jai Shree Singh did not challenge the demolition order. It was District Judge/PHC/ND 27/2/2012 SSPN Singh Vs. NDMC Page No. 4 of 11 5 challenged by the appellants. They had also confined their appeal before the Ld. Appellant Tribunal to the construction relating to porta cabins which were described as under: " Constructed porta cabin m.a. 19'0" x 13' - 0", 13' 0" x 6' 6" and 19' 6" x 24'0" with the help of wooden boards and fibre sheets at ground floor falling in the set back area and being used for commercial purposes at 2 Hailey Road, New Delhi."
4 In the memo of arguments ld. Counsel for the appellants has reiterated all those arguments which had been put forth on behalf of the appellants before the Ld. Appellate Tribunal. Fortunately, the Ld. Appellate Tribunal had dealt with and discussed each and every argument and that too in detail. 5 It is well settled that if the findings arrived at by the lower court are to be endorsed by the superior court, then in that case there is no need to reiterate the reasons given by the trial court. Reliance can be placed on Girija Nandini Vs. B.N.Chaudhary AIR 1967 SC 1124.
6 All the same I would like to deal with the arguments District Judge/PHC/ND 27/2/2012 SSPN Singh Vs. NDMC Page No. 5 of 11 6 advanced on behalf of the appellants, though in brief. 7 First of all I would like to mention that a judgment can't be applied in a mechanical manner. First of all it has to be found out as to whether the facts of the case cited by the party are identical to the facts of the case to which the judgement is intended to be applied. If it is not so, then the judgement can't be applied. It was for this reason that the Hon'ble High Court in Laxman Dass Bhatia Hingwala vs. Asstt. Commissioner 2011 (1) AD (D) 537, observed as under: " A judgment has to be read in the context and discerning of factual background is necessary to understand the statement of principle laid down therein. It is obligatory to ascertain the true principle laid down in the decision and it is inappropriate to expand the principle to include what has not been stated therein. (para 25).
It was further held that "the decision is only an authority for what it actually decides and it is the duty to ascertain the real concrete or the ratio decidendi which has the binding effect. While dealing with the principle of precedent District Judge/PHC/ND 27/2/2012 SSPN Singh Vs. NDMC Page No. 6 of 11 7 it is to be borne in mind that a judgment is neither to be read as Euclid's theorem nor is to be read out of context (para 26)." 8 In K.D.Dewan vs. H.S. Parihar 2001 IX AD (SC) 307 it was held as under: ''in order to understand a judgment, it is necessary to look into factual context of such judgment. "
9 In Parsa Raja Vs. State 2003 IX AD (SC) 31 it was held as under: "a close similarity between one case and another is not enough to warrant like treatment because a significant deal may alter the entire aspect. In deciding such cases one should avoid temptation to decide cases (as said by Cordozo) by matching the color of one case with the color of another".
10 The question before me is as to whether the porta cabins can be covered under the definition of "building". 11 "Building" has been defined u/s 2(4) of the Act. Section 237 of the Act provides that no person shall erect any building or execute any work specified in section 239 except with the previous District Judge/PHC/ND 27/2/2012 SSPN Singh Vs. NDMC Page No. 7 of 11 8 sanction of the chair person.
12 If the definition of "building" and the contents of section 237 as provided under the Act are kept in mind it would be clear that the word building as defined under the Act is not to be interpreted narrowly. Once it is concluded that the term 'building' is not to be interpreted narrowly, it would mean that a structure having some sort of permanency which can be used for residential or non residential purpose is coverable under the definition. It is not necessary that it should be of a permanent structure. 13 Admittedly, in the present case the appellant had infact sought permission for constructing some shelter as temporary measures (Para 3 of memo of arguments). Permission had been granted for a period of six months vide letter dated 26/8/1996. The request of extending the period though made was never granted. Request of regularization of the structure made by the appellants had also been dealt with by the concerned authority. It was opined that the construction of porta cabins can't be compounded as the same falls in the mandatory set back of 6 mts. These facts clearly District Judge/PHC/ND 27/2/2012 SSPN Singh Vs. NDMC Page No. 8 of 11 9 show that the concerned authority was not inclined to regularize or approve the construction of the porta cabins. The construction of porta cabins in the circumstances of the case were not found to be permissible without prior sanction of the chair person. It was also not found to be compoundable.
14 The concerned authority had given opportunity of being heard. The principles of natural justice, were thus followed. The appellants had tried to take the relief on the basis of the letter dated 26/8/1996 vide which installation of temporary porta cabins had been permitted by the chair person, NDMC. However, it is a fact that the concerned authority had repeatedly asked the appellant to remove the porta cabins.
15 The argument that the appellants are not using the porta cabins for commercial purpose and are not nuisance is misconceived. Section 237 of the Act lay down that previous sanction to erect any building is necessary. It is for this reason that request had been made even by the appellants. The user of the "building" is not decisive. The Ld. Appellate Tribunal had referred District Judge/PHC/ND 27/2/2012 SSPN Singh Vs. NDMC Page No. 9 of 11 10 the judgment M.C.Mehta Vs. UOI cited by ld. Counsel for the appellants. In para 17 of the impugned judgement, it was discussed and distinguished.
16 In the memo of arguments it has been reiterated that no permission under any byelaw is required for construction of a porta cabin and even if the appellants, under ignorance did seek the permission, it would not mean that permission was required for all times to come. What has been excluded under the Act from the definition of 'building' is a portable shelter. The Ld. Appellate Tribunal has in the impugned order, dealt with this aspect in detail in para 14 of the impugned order.
17 I repeat that the construction of porta cabin (which is coverable under the definition of 'building') is not permissible under the rules without prior sanction. The construction of such a cabin is also not compoundable as it exists on the rear set back and the ground coverable of it exceeds 800 sq. ft. Thus, the remedy of this problem of the appellants does not lie, in the litigation. The appellants are at liberty to approach the concerned authority to seek District Judge/PHC/ND 27/2/2012 SSPN Singh Vs. NDMC Page No. 10 of 11 11 the relief by obtaining sanction, as per law or to show it to the authority that their structure was not more than a portable shelter. 18 I am in full agreement with the observations made by the Ld. Appellate Tribunal. I do not find any impropriety or any illegality in the impugned order calling for any interference by this court. 19 In view of the above discussion, the appeal fails and is dismissed.
20 The appellants are given one month time to remove the porta cabins without waiting for its demolition by the concerned authority.
21 In the circumstances of the case, parties are left to bear their own cost.
22 Trial Court Record be sent back with copy of the order. 23 Appeal file be consigned to record room. Announced in open court on dated 27/2/2012 (H.S.SHARMA) DISTRICT JUDGE/NEW DELHI 27/2/2012 District Judge/PHC/ND 27/2/2012 SSPN Singh Vs. NDMC Page No. 11 of 11 12 All pages signed:
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