Delhi District Court
Sh. Shashi Chander Bajaj vs South Delhi Municipal Corporation ... on 8 May, 2017
IN THE COURT OF MS. ASHA MENON : DISTRICT
& SESSIONS JUDGE : SOUTH DISTRICT : SAKET
NEW DELHI
CIS - MCD APPL - 03 2016
CNR DLST01000328 2014
1. Sh. Shashi Chander Bajaj
S/o Late Sh. Sohan Lal,
R/o D151, Ground Floor,
Saket, New Delhi.
(Legal Heir of deceased Smt. Shakuntla Rani)
1A. Sh. Ashok Kumar Bajaj
S/o Late Sh. Sohan Lal,
R/o D151, Second Floor,
Saket, New Delhi.
(Legal Heir of deceased Smt. Shakuntla Rani)
2. Ms. Rita Khanna
W/o Sh. Rakesh Khanna,
R/o D151, Ground Floor,
Saket, New Delhi.
(Legal Heir of deceased Smt. Shakuntla Rani) ........Appellants
Versus
1. South Delhi Municipal Corporation (SDMC)
Through its Commissioner,
17th Floor, Civic Centre,
Minto Road, Delhi.
2. Hari Gupta & Sons HUF
Through its Karta (as represented to Appellants)
Sh. Hari Gupta
CISMCD APPL032016 Page 1 of 27
R/o D151, First Floor,
Saket, New Delhi.
3. Mrs. Santosh Gupta
W/o Sh. Hari Gupta,
R/o D151, First Floor,
Saket, New Delhi.
4. Ms. Neelam Bajaj
W/o Sh. Shashi Chander Bajaj
R/o D151, Saket,
New Delhi. .......Respondents
Instituted on: 21.07.2014 Order reserved on: 21.02.2017 Order pronounced on: 08.05.2017 ORDER This order will dispose of an appeal preferred by Sh. Shashi Chander Bajaj, Sh. Ashok Kumar Bajaj and Ms. Rita Khanna as LRs of Late Smt. Shakuntla Rani and by Ms. Rita Khanna in her own capacity, against the orders of the Ld. Appellate Tribunal, MCD dated 07.07.14.
The facts as relevant to the present appeal are that an appeal was filed by Hari Gupta and Sons (HUF) through the Karta Sh. Hari Gupta and Smt. Santosh Gupta, wife of Sh. Hari Gupta u/s 347D of the Delhi Municipal Corporation Act, 1957 (hereinafter called the DMC Act) against the sanctioning of the addition / alteration of building plan dated 26.11.10 issued by Assistant Engineer Building, South Zone, MCD and the order regularising the excess construction CISMCD APPL032016 Page 2 of 27 on the ground floor, first floor and second floor of D151, Saket, New Delhi dated 29.08.11. This appeal was filed before the Ld. Appellate Tribunal, MCD which passed the impugned order allowing the appeal holding that the respondents Smt. Shakuntla Rani (respondent no.2) and Ms. Rita Khanna (respondent no.3) before the Ld. Appellate Court had fraudulently obtained the addition / alteration plan on 26.10.11 and that misrepresentation had also led to the order dated 29.08.11. Thus, it revoked the addition / alteration plan dated 26.11.10 on the ground of material misrepresentations, concealment of real facts and fraudulent statements made by respondents no.2 and 3 (before it). It may be noted here that the respondent no.2 before the Ld. Appellate Tribunal, MCD died on 26.11.2013 and her LRs were substituted in her place. It also directed that if any benefit had been taken on the basis of this plan either in the shape of addition / alteration in the building by any of the respondents including in the portion belonging to the appellants, it was to be treated as unauthorised and illegal and liable to be demolished. It was left to the discretion of the MCD whether to initiate any criminal action including lodging of FIR in respect of the fraud committed by them. Vide the impugned order, it further imposed compensation and litigation costs of Rs.50,000/ and Rs.5,000/ upon the legal heirs of deceased respondent no.2 as well as respondent no.3 out of which Rs.40,000/ was given to the appellant before the Ld. Appellate Tribunal, MCD and the remaining Rs.15,000/ was to be released to the MCD. The compensation was justified on the ground that the CISMCD APPL032016 Page 3 of 27 appellants before the Ld. Appellate Tribunal, MCD must have suffered mental agony and financial burden due to filing of the case before the Ld. Appellate Tribunal, MCD.
Aggrieved by this order, the appellants being the LRs of deceased respondent no.2 before the Ld. Appellate Tribunal, MCD, Smt. Shakuntla Rani and the respondent no.3 before the Ld. Appellate Tribunal, MCD, Ms. Rita Khanna have submitted that the Ld. Appellate Tribunal, MCD had wrongly concluded on the basis of non existent and totally erroneous facts that the appellants had misrepresented and played a fraud on the MCD because they had stated that they were the sole and exclusive owners of the property in question i.e. D151, Saket, New Delhi on the basis of which sanction plan was got approved on 27.10.10. It is stated that since the deceased Smt. Shakuntla Rani and the appellant no.2 were the recorded owners of the property, as advised and under bonafide understanding that only the recorded owners could apply for regularization, they had done so. There was absolutely no motive for defrauding the respondent no.1. It is submitted that had they any such intention they would never have placed on record the entire chain of events qua the property in question i.e. D151, Saket, New Delhi right from the year 1973, including the fact that the first floor of the subject property was sold to respondent no.2 under an unregistered agreement to sell, in their reply to the show cause notice dated 05.05.11 issued by SDMC i.e. respondent no.1 before this Court.
It is submitted that the Ld. Appellate Tribunal, MCD CISMCD APPL032016 Page 4 of 27 ought to have decided the issue in favour of the appellants following the ratio of the judgment of the Hon'ble Delhi High Court in "MCD Vs. Usha Devi Sharma", reported in DLT (127) 2006 DLT 275 where it was held that there was no need for submission of No Objection Certificate from the other flat owners as per the provisions of Building Byelaws and there was no occasion for the appellants to have misrepresented to the MCD that they were the owners of the subject property.
The facts as revealed on the record are that in the year 1973 the property i.e. D151, Saket, New Delhi had been allotted to Sh. Sohan Lal Bajaj, husband of deceased Smt. Shakuntla Rani and father of Ms. Rita Khanna who were arrayed as respondents no.2 and 3 before the Ld. Appellate Tribunal, MCD by the DDA. In the year 1978, the property was transferred in the name of Smt. Shakuntla Rani and Ms. Rita Khanna. The two sons of Sh. Sohan Lal Bajaj namely appellant nos.1 and 2 Sh. Ashok Bajaj and the respondents had no objection to the said transfer. Thereafter, a collaboration agreement was executed between Smt. Shakuntla Rani and Ms. Rita Khanna (referred to as original allottees in the appeal before that Court and referred to as such here too for convenience) and M/s Batra Properties through its partner Sh. Suresh Batra for the redevelopment of the subject property. Thereafter, the first floor of the property was transferred to M/s Batra Properties while the ground floor, second floor and above were retained by the original allottees. Vide an unregistered agreement to sell dated 28.11.90, the subject property CISMCD APPL032016 Page 5 of 27 was agreed to be sold to the respondent no.2 i.e. Hari Gupta & Sons (HUF) by the said M/s Batra Properties alongwith 33% share i.e. proportionate rights in the ground underneath. The original allottees were confirming parties to the said unregistered agreement to sell. It is further stated that since the property in the revenue records of the MCD was in the name of the original allottees, the sanctioned plans were obtained under their name in or about 1990. The completion certificate was applied for in their name. The respondent no.2 did not raise any grievance of fraud or misrepresentation at that time that despite being the owner of the first floor of the subject property by virtue of the agreement to sell dated 28.11.90, the original allottees were showing themselves to be the owners of the entire property. The completion certificate was received on 16.01.91 and was accepted by all parties including respondent no.2 and he had no grievance whatsoever for the last 20 years.
It is further submitted that about 1992 another Memorandum of Understanding was executed between Smt. Shakuntla Rani and Ms. Rita Khanna and the appellants 1 and 1A in this appeal. Sh. Shashi Chander Bajaj, Sh. Ashok Kumar Bajaj and respondent no.4 in this appeal being Smt. Neelam Bajaj dividing the remaining floors i.e. ground floor, second floor and terrace of second floor of the subject property. In the year 2010, the ground floor of the property was sold to Sh. Shashi Chander Bajaj alongwith 22% rights in the land underneath. The second floor of the property was sold to Sh. Ashok Kumar Bajaj. The terrace alongwith 22% rights in the land CISMCD APPL032016 Page 6 of 27 underneath was sold to respondent no.5 Ms. Neelam Bajaj, wife of Sh. Shashi Chander Bajaj (now respondent no.4 as per amended memo of parties dated 21.08.14 allowed vide order dated 03.09.14) recording therein that she was the owner of the terrace above the second floor and above and she has the right to construct thereupon and no one could claim the terrace rights of the third floor after construction.
It is further stated in the appeal that initially the first floor was admeasuring about 1300 sq. feet. However, eventually after covering excess areas as available, the area available to the first floor increased to about 1800 sq. feet. As the owners/residents of the property were desirous of paying the regularization charges applicable in that behalf to the MCD, therefore, the owners approached the original allottees namely Smt. Shakuntla Rani and Ms. Rita Khanna and all agreed to proceed to pay the regularization charges as each party had their respective ownership documents. It is submitted that the present respondent no.2 did not have any registered documents executed in its favour and could not have applied for the payment of regularization charges and at that point the respondent no.2 gave a verbal consent for the same.
Since the original allottees were the recorded owners, for that reason alone, the application for regularization was made in their name, despite having sold all the floors to different persons. It is further stated that it was at the behest of respondent no.2 that the owners of the other floors did not apply in their respective names for payment of regularization charges as respondent no.2 alone would get CISMCD APPL032016 Page 7 of 27 left out. The original allottees asked all the owners to give their NOC and all the owners complied, as even the respondent no.2 gave a verbal consent to go ahead in applying for regularization. He also agreed to pay his share in respect of the regularization.
It is submitted that thus with the consent of all owners, the original allottees in good faith applied under the simplified scheme before the MCD and spent over Rs.5,00,000/ and shared the sanctioned plan which got approved by the SDMC on 26.10.10 with everyone including respondent no.2 agreeing to pay the amount. However, thereafter, the respondent no.2 after accepting his case papers started making illegal demands and issuing threats to the appellants. He also failed to pay his share.
On 27.11.10, the respondent no.5 Ms. Neelam Bajaj (now respondent no.4 as per amended memo of parties dated 21.08.14 allowed vide order dated 03.09.14) commenced construction on the terrace floor of the subject property and respondent no.2 only with malafide and greedy motive to extract illegal monies from respondents no.3 & 4 filed a totally frivolous and self concocted suit bearing CS (OS) No.871 of 2011 before the Hon'ble High Court of Delhi where the Hon'ble High Court was pleased to direct the Executive Engineer (South ZoneII) to inspect the third floor of the subject property and report as to whether the construction being carried out in the subject property was likely to endanger the safety of the occupants on the first floor or is likely to cause damage to the first floor of the suit property. The Hon'ble High Court further observed that if the Executive CISMCD APPL032016 Page 8 of 27 Engineer found that the construction was likely to endanger the safety of the first floor occupants, it was only then that no further construction was to be carried out by the defendants till further orders. It is stated that the Executive Engineer inspected the third floor of the subject property and submitted the status report dated 20.06.11 recording that the construction raised in the property in question seemed to be in consonance with the provisions of the building Byelaws and assessment had been carried out to ascertain soundness and stability. Subsequently, on 01.08.13, the Hon'ble High Court of Delhi stayed further construction in the third floor/terrace till the disposal of the suit.
The appellants alleged that at the behest of the respondent no.2 on the basis of false and frivolous complaints, the MCD issued a show cause notice dated 05.05.11 to the original allottees asking why the sanction plan dated 27.11.10 should not be revoked on the grounds of misrepresentation. The original allottees submitted their reply on 09.05.11 regarding these above mentioned facts. Thereafter, vide order dated 29.08.11, after going through all the facts and documents placed on the record, the competent authority of the SDMC, held that there was no force in the contention of respondent no.2 that the sanction plan dated 27.11.10 was obtained by misrepresentation and concealment of facts. However, the respondent no.2 filed an appeal before the Ld. Appellate Tribunal, MCD which vide the impugned order revoked the sanction plan dated 27.10.10.
It is further submitted in the present appeal that the CISMCD APPL032016 Page 9 of 27 impugned order dated 07.07.14 had not considered the appellant's application with request for regularization and compounding and the Ld. Appellate Tribunal, MCD had passed the illegal and arbitrary orders on erroneous grounds. It is further submitted in the grounds of appeal that the Ld. Appellate Tribunal, MCD had failed to appreciate that there was in fact no misrepresentation as the original allottees Smt. Shakuntla Rani and Ms. Rita Khanna were in fact the recorded owners of the property. It is further stated that the Ld. Appellate Tribunal, MCD failed to appreciate that there was no illegality on the part of the MCD in sanctioning the plan which was done in accordance with law and it was so apparent from the order of the SDMC dated 29.08.11 upholding the sanctioning of the plan despite the claim of respondent no.2 to the ownership of the first floor. It is stated that even the SDMC had clarified at the time of the application for the payment of regularization charges that NOC was not required as only the lease deed owner or sale deed owners were recognised as the owners and only they could apply.
It is further submitted that the Ld. Appellate Tribunal, MCD had treated the deceased Smt. Shakuntla Rani and the appellant no.2 as criminals who had played a fraud on the respondent no.1 which was a complete non application of mind. It is also submitted that the Ld. Appellate Tribunal, MCD had gone beyond the issue before it in issuing directions that were not called for. It is further submitted that the Ld. Appellate Tribunal, MCD had directed to demolish the construction pursuant to the sanction plan dated 27.11.10 CISMCD APPL032016 Page 10 of 27 without providing an opportunity to the appellants to avail the statutory remedy i.e. compounding and regularization of the unauthorised construction as provided in appendix 'Q' of the building Byelaws 1983. It is submitted that the Ld. Appellate Tribunal, MCD had ignored the submissions and contentions made by the appellants in their reply dated 09.05.11, submitted to the respondent no.1 in response to the show cause notice dated 05.05.11, wherein it has been specifically stated in detail that the respondent no.2 was the owner of the first floor of the property, whereas the appellants were the recorded owners and so the sanction plans were applied for by them and they had no intentions to play fraud on the MCD or conceal material facts. The appellants would never have disclosed these facts to the MCD, particularly that the respondent no.2 was the owner of the first floor, had they desired to defraud the SDMC.
It is further submitted in the grounds of appeal that the Ld. Appellate Tribunal, MCD erred in holding that any benefit taken on the basis of the plan including the addition / alteration of other floors of the building had to be treated as unauthorised and liable to be demolished without appreciating that these additions were even otherwise permissible and in any event compoundable. Thus, they were such that can be regularised as per the prevailing bylaws. It is submitted that the respondent nos.3 to 5 (respondent no.5 is now respondent no.4 as per amended memo of parties dated 21.08.14 allowed vide order dated 03.09.14) who were the actual owners of the second floor and who had been sanctioned additional construction are CISMCD APPL032016 Page 11 of 27 being adversely affected for no fault of theirs and would suffer irreparable loss and injury if the sanction plan dated 27.11.10 is cancelled and revoked when the entire construction could be regularised and compounded even if, it was assumed that there was no valid sanction plan.
It is submitted that thus the building did not infringe anybody's rights nor had encroached on public land in contravention of any building regulations and had also been constructed without any deviation on the terrace floor and thus could not have been directed to be demolished so perfunctorily. It is further submitted that the Ld. Appellate Tribunal, MCD had misdirected itself in referring to the issue of any admissions made by the appellants or respondent nos.3 to 5 (respondent no.5 is now respondent no.4 as per amended memo of parties dated 21.08.14 allowed vide order dated 03.09.14) in any judicial proceedings or to observe that probably, it was in order to avoid payment of stamp duty or due to technical reason that land still has not got converted into freehold from the concerned land owning agency, since there was no occasion for the Ld. Appellate Tribunal, MCD to have given such findings. It is further submitted that no where had the appellant no.2 described herself as the absolute and exclusive owner of the entire property. It is also submitted that the respondent no.2 was not the recorded owner and did not have the correct documents to establish title and yet he was allowed to object to the sanction of plans and misrepresent to the MCD.
It is further submitted that the Ld. Appellate Tribunal, CISMCD APPL032016 Page 12 of 27 MCD did not acknowledge that it was respondent no.2 who had been harassing the appellant. It is further submitted that the Ld. Appellate Tribunal, MCD erred in revoking the addition / alteration plan dated 27.11.10 and directing forfeiture of the amount deposited by the appellants towards regularisation. It is also submitted that since there was no misrepresentation or fraud, the Ld. Appellate Tribunal, MCD erred in leaving it to the discretion of the MCD to initiate criminal proceedings and lodging an FIR. It is also submitted that the Ld. Appellate Tribunal, MCD erred in imposing compensation and litigation cost of Rs.50,000/ and Rs.5,000/ upon the legal heirs i.e. appellant no.1 & 1A and appellant no.2. Thus, it is prayed that the impugned judgment dated 07.07.14 be set aside and the appeal accepted.
Reply has been filed by the respondent no.2 Hari Gupta & Sons (HUF) to this appeal. It is submitted by them that the appeal was a gross abuse of the process of law and was liable to be dismissed as new grounds in respect of the sanction has been pleaded in the appeal than what had been pleaded before the Ld. Appellate Tribunal, MCD and thus an altogether new case was now being set up. It is submitted that the appeal was liable to be dismissed for not stating as to who is the owner of the first floor of the subject matter. It is also stated that the appeal was liable to be dismissed as it was not explained as to how and for what reasons the order passed by the Ld. Appellate Tribunal, MCD was wrong. On merits, it is submitted that the question as to whether Smt. Shakuntla Rani and Ms. Rita Khanna CISMCD APPL032016 Page 13 of 27 had played a fraud and had misrepresented before the Municipal Authority has to be tested on the documents produced before the said authority at the time of seeking sanction. It is asserted that they had sold the first floor to the respondent no.2 in whose name the first floor was mutated in the records of the MCD. It is submitted that though Sh. Shashi Chander Bajaj, Sh. Ashok Kumar Bajaj and Ms. Neelam Bajaj had admitted before the Hon'ble High Court of Delhi that the first floor i.e. D151, Saket, New Delhi was under the ownership of Hari Gupta & Sons (HUF), they continued to make vague and frivolous submissions before this Court and also before the MCD.
It is further stated that the different floors were under the ownership of different persons and that Hari Gupta & Sons (HUF) owners of the first floor, Sh. Shashi Chander Bajaj owners of ground floor and Sh. Ashok Chander Bajaj owners of second floor of the property bearing no.D151, Saket, New Delhi have applied for conversion of their respective portion before the Delhi Development Authority. It is submitted that neither Smt. Shakuntla Rani nor Ms. Rita Khanna were the owners of any portion of the property as they had divested themselves of all the rights in the property in question. It is submitted that there was a collaboration agreement with M/s Batra Properties for further development of the property bearing no.D151, Saket, New Delhi to extend construction of remaining portion of ground floor and to raise fresh construction on the first floor and portion of the second floor as per the sanction plan in the year 1989 and that the builder thereafter had raised the construction on the CISMCD APPL032016 Page 14 of 27 remaining portion of ground floor and had constructed the entire first floor above ground floor and the portion of the second floor. The sanction plan were approved by the MCD in respect of the property of the year 1990.
It is further submitted that since the sanction plan in the year 1990 had been passed in favour of Smt. Shakuntla Rani and Ms. Rita Khanna the necessary corollary was that the completion certificate too would have to be granted in favour of Smt. Shakuntla Rani and Ms. Rita Khanna. It is admitted that there was no grievance on the part of respondent no.2 at that point of time. It is also submitted that there was no occasion for any grievance for the grant of completion certificate obtained on 16.01.91. With regard to the Memorandum of Understanding, it is submitted that neither such Memorandum of Understanding had ever been placed before the Ld. Appellate Tribunal, MCD or even before the Hon'ble High Court of Delhi in CS (OS) No.871/11 despite specific directions of the Hon'ble High Court of Delhi. It is denied that the ground floor had been sold on 17.09.10 with 22% land rights and it is also denied that the terrace floor was sold to respondent no.5 Ms. Neelam Bajaj (now respondent no.4 as per amended memo of parties dated 21.08.14 allowed vide order dated 03.09.14) alongwith 22% land rights underneath. It is claimed that it was undivided, impartible, indivisible proportionate share of land that had been transferred and that it was only in the rectification deed which was executed by Smt. Shakuntla Rani, Ms. Rita Khanna and Ms. Neelam Bajaj wherein the agreement to sell CISMCD APPL032016 Page 15 of 27 dated 17.09.11 was amended and it was mentioned that the terrace had been sold to Ms. Neelam Bajaj with 22% undivided share of the land.
The respondent no.2 has denied that the first floor was sold with about 1300 sq. feet area or that excess coverage has resulted in increasing the area from 1300 sq. feet to 1800 sq. feet. The respondent no.2 claims that the flat was the same size as it was purchased in the year 1990. It is also denied that the owners of all portions of the suit property were desirous to pay regularization charges or that the owners had approached the original allottees for this purpose. It is further submitted that at the time the first floor was sold to respondent no.2, agreements to sell were not being registered and the properties were being sold/transferred on the basis of unregistered agreement to sell alongwith registered power of attorney and other sale documents. It is further disputed as absolutely false and misleading that the respondent no.2 had approached the erstwhile owners of D151, Saket or respondent no.2 had given verbal consent for regularization of the suit property. It is denied that the appellants were the recorded owners of the suit property in the records of the MCD or that they alone could have applied for the regularization of the suit property being the original allottees despite having sold flats to different persons.
According to the respondent no.2, it was with a view to defeat the rights of the first floor owner who had purchased the said property with 33% land rights so that no additional storey is constructed on the flat land that Smt. Shakuntla Rani and Ms. Rita CISMCD APPL032016 Page 16 of 27 Khanna chose to approach the MCD as sole and absolute owners of the suit property. It is alleged that this was done apparently which is now clear with the sole intention to immediately raise the construction on receiving the sanction so as to defeat the legal rights of the respondent no.2 for which reasons, the respondent no.2 had filed a civil suit before the Hon'ble High Court of Delhi.
It is further submitted that the respondent no.2 did not give any consent whatsoever to the so called original allottees/appellants nor did they assure that their share would be paid once the sanction maps were issued by the statutory authority in this behalf. The respondent no.2 has alleged that it was on the basis of fraud and misrepresentation committed by Smt. Shakuntla Rani and Ms. Rita Khanna that they were successful in obtaining the regularization of the construction and sanction for construction above the second floor. It is submitted that the appellants were taking a stand for the first time before this Court that they had been advised that only the recorded owners could approach the MCD for regularization and sanction and that this very contention established that they had fraudulently misrepresented about the ownership of the property with intention to obtain the benefit of regularization of the excess construction on the ground floor and second floor as well as sanction for the construction on the terrace floor above the second floor and obtained benefits which they could not have obtained as they were no longer the owners of the property bearing no.D151, Saket, New Delhi having divested themselves of all rights of the ownership.
CISMCD APPL032016 Page 17 of 27It is submitted that since the sanction had been applied under the simple procedure, simple procedure itself provided that in case of any misrepresentation notice at any payment in future, the plan would be immediately cancelled and since they themselves had given an undertaking before the MCD that there was no misrepresentation while seeking sanctioning of the plans, the plans should be cancelled and FIR registered against them. Hence, it is submitted that since Smt. Shakuntla Rani and Ms. Rita Khanna had committed illegal acts they had to face consequences.
It is further submitted that the impugned order was proper and the Ld. Appellate Tribunal, MCD had not recorded any findings nor had given directions beyond the issue. It is submitted that the impugned order was well reasoned and called for no interference. It is further submitted that the Ld. Appellate Tribunal, MCD did not exceed his jurisdiction and that if the sanction plan is set aside by the appellate authority the construction raised pursuant to the sanction had also to be removed. It is submitted that the compensation and litigation cost had been rightly imposed on the legal heirs of Smt. Shakuntla Rani as well. It is submitted that Sh. Shashi Chander Bajaj, Sh. Ashok Kumar Bajaj and Ms. Neelam Bajaj have acted in collusion with Smt. Shakuntla Rani and Ms. Rita Khanna to defeat the rights of the respondent no.2 and therefore, they cannot now claim that they have been adversely affected for no fault of theirs. It is asserted that there was excess construction on each floor and that the construction sought to be raised on the terrace floor above the second floor was CISMCD APPL032016 Page 18 of 27 also contrary to the sanction plan. It is further submitted that the appellants had been able to obtain the sanction plan for raising the construction above the terrace floor which construction is absolutely unsafe on a building which is structurally not safe for any further construction keeping in view the type of construction and the various stages of construction for the appellants. It is also submitted that the Ld. Appellate Tribunal, MCD was absolutely right in holding that the appellants could not have applied for regularization of the entire said property without obtaining the NOC of Hari Gupta & Sons (HUF) who was the owner of the first floor. It is denied that Hari Gupta & Sons (HUF) has left no stone unturned to harass and bombard the appellants with frivolous litigation as alleged. Thus, the respondent no.2 has prayed that the appeal be dismissed as the Ld. Appellate Tribunal, MCD had correctly determined the matter on the materials that were before it.
Written submissions have also been filed by the appellants and respondent nos.2 and 3. I have perused these written submissions and the cited case laws and I have also heard the oral arguments of counsel for the appellant Sh. Naveen Kumar Raheja and counsel for the respondent no.1 Sh. Pratap Singh Ahluwalia and respondent nos.2 & 3 Sh. Karamveer Singh.
Admittedly, Smt. Shakuntla Rani and Ms. Rita Khanna were the original allottees/ owners of the property. The respondent no.2 had purchased the first floor of this property through collaboration agreement with M/s Batra Properties in the year 1989.
CISMCD APPL032016 Page 19 of 27The respondent no.2 admits that despite the sale, the sanction plans were applied for by Smt. Shakuntla Rani and Ms. Rita Khanna. The respondent no.2 also admits that the completion certificate was also obtained by them but justifies it on the ground that the agreement itself provided for obtaining of the completion certificate by the original allottees. Thus, it is clear that where it suits the respondent nos.2 and 3, they had made use of the appellants to complete formalities with the Government authorities without any compunction with regard to any "misrepresentation".
When the sanction was to be obtained for the further construction and regularization was also sought, once again the applications were moved by the appellants as the original allottees/owners as before. When the sanction was challenged, the sanctioning authority had heard the respondent no.2 on the question of ownership and it had rejected those contentions. If the authority did not feel, there was any misrepresentation, what grouse can anybody have to such satisfaction? The claims of the respondent nos.2 and 3 before the MCD were rejected by the Superintending Engineer including over ownership of the property for the purpose of plan "as without any force". It had looked into the various ownership documents and referred to the sale through M/s Batra Properties of the first floor to Hari Gupta & Sons (HUF). The order reveals that both sides were heard twice and were asked to submit documents which they wished to file and both parties relied upon their respective documents. It is thereafter that the Superintending EngineerII, South CISMCD APPL032016 Page 20 of 27 Zone, MCD had concluded that he did not find any force in the contention of the complainant and Hari Gupta & Sons (HUF) regarding claims of the ownership of the property for the purpose of the plan.
Much arguments had been advanced on these ownership documents. Admittedly, there were no registered documents in favour of Hari Gupta & Sons (HUF) on 29.08.11 and the law does not recognise transfer of rights of ownership through unregistered agreement to sell etc. It is significant to note that neither the appellants/original allottees nor the remaining respondents have ever challenged the rights of the respondent nos.2 and 3 to the first floor of the subject property bearing no.D151, Saket, New Delhi. In these circumstances, it was imperative for the respondent nos.2 and 3 to have established before the Ld. Appellate Tribunal, MCD as to what was the misrepresentation and fraud that prompted the MCD authorities to sanction the plans for further construction. Apparently, there is nothing to show such misrepresentation or fraud. It is noticed from the records of the MCD that when the issue came up before the concerned authority u/s 338 of the DMC Act, an enquiry was made as to whether there was misrepresentation in respect of obtaining the sanction plans for further construction on the terrace floor above the second floor and the third floor and the concerned authorities concluded when there was no misrepresentation. The MCD authority rejected the complaint of the respondent nos.2 and 3 and their opposition to the sanction of plans for further construction in the CISMCD APPL032016 Page 21 of 27 property after taking into account all these allegations.
It may be noticed that the present appeal has been filed against the orders sanctioning the building plan dated 26.11.10 as well as the orders dated 29.08.11 whereby the Superintending Engineer (South ZoneII) rejected the complaint of the appellant before the Ld. Appellate Tribunal, MCD. One order was u/s 336 of the DMC Act, whereas the other order was u/s 338 of the DMC Act where the sanction accorded under misrepresentation is dealt with. Under section 347(B) of the DMC Act, the order u/s 336 of the said Act against the sanction or refusal to sanction the erection of a building or the execution of any work is appealable by any person aggrieved. However, only an order cancelling the sanction u/s 338 of the DMC Act is appealable u/s 347(B) (h) of the DMC Act. In the present case since the sanction plan has not been cancelled, there is no locus for the respondent nos.2 and 3 to file an appeal against that order. As a corollary, it is clear that the Ld. Appellate Tribunal, MCD ought to have considered the question whether the sanction for the addition/alteration granted u/s 336 of the DMC Act was justified or not and the question of misrepresentation was really not an issue before it. In fact the Ld. Appellate Tribunal, MCD has noticed in its order that there could be no appeal against the order dated 29.08.11, but went on to observe that had the Superintending Engineer applied his mind correctly, the Ld. Appellate Tribunal, MCD need not have gone into these issues. This is indeed strange logic.
Be that as it may, with regard to the issue of CISMCD APPL032016 Page 22 of 27 misrepresentation, the records of the MCD reveal that after the sanction order was made on 26.11.10, the respondent nos.2 and 3 filed a complaint claiming the ownership of the first floor and alleging misrepresentation on the part of Smt. Shakuntla Rani and Ms. Rita Khanna as being the owners of the entire property bearing no.D151, Saket, New Delhi. Though the stand has been taken in the reply filed by the respondent nos.2 and 3 in the present appeal before this Court, that new grounds had been raised regarding the applications moved by the original owners on the plea that only the owners could so apply, it is noticed that even before the SDMC in the reply, similar averments have been made by the original allottees. Thus, it is not a new case that has been now set up. In fact, the present appellants also disclosed that since the documents were not complete in favour of the present respondent no.2, the original allottees had moved before the MCD for the sanction plan of the entire building including the first floor and had even obtained the completion certificate when the property was first reconstructed.
The respondent nos.2 and 3 do not seem to have been aggrieved by the so called misrepresentation which took place when they needed a sanction plan to get even the first floor constructed. So, it would seem that it is the convenience of the respondent nos.2 and 3 which would determine whether alleged misrepresentation must be agitated or not. As has been observed by the Hon'ble High Court of Delhi in the case of "MCD Vs Usha Devi Sharma, LPA No.2008 to 2005:
CISMCD APPL032016 Page 23 of 27"The fate of an individual owner cannot be dependent on the pen of a person who happens to be the owner of a different portion of the building".
On the one hand, the respondent nos.2 and 3 claimed to be the exclusive owner of only the first floor. Then what interest do they have on the second floor and terrace floor which belonged to the respondent no.4 Ms. Neelam Bajaj and appellant no.1 Sh. Shashi Chander Bajaj? If they claimed to be the owners of the first floor and took the assistance of the original owners/allottees to obtain the sanction plan for construction of their floor, how can they take a contrary view now? It is precisely what he did in 1990 when the sanction plan was obtained for the construction of the first floor, that the owners of the second & terrace floors seek to do now. If the original owners also noted the unauthorised or excess construction on the first floor and applied for regularisation as permissible under the building Byelaws, having obtained the completion certificate in their names and had further paid the regularization amount, what fraud had been committed is unclear. The fraud that can occur when several flats are under the ownership of multiple owners is where one of the owners surreptitiously obtains sanction plans to construct on his floor usurping FAR that would take away from other coowners their right to additional FAR as may be available to them under the building byelaws. Such a case has not been pointed out.
The question of stability and safety on account of the additional construction is already pending before the Hon'ble High CISMCD APPL032016 Page 24 of 27 Court of Delhi and everybody in D151, Saket as well as the MCD would be bound by what is decided by the Hon'ble High Court of Delhi. For the present, it can be safely concluded that the ingredients of fraud and misrepresentation are totally absent from the act of the appellants/original allottees in obtaining the sanction plan vide orders dated 24.11.10.
The Ld. Appellate Tribunal, MCD was quite aware of the fact that no appeal in respect of the order of the Competent Authority u/s 338 of the M.C.D Act was maintainable. It was also aware of the observations made in Uma Shankar's case (supra). However, it chose to brush aside the observations by stating that the facts were different here. With regard to the decision of the Competent Authority, the Ld. Appellate Tribunal observed that he "did not approve" the manner in which the Superintending Engineer had dealt with the complaints/representations of the respondents no. 2 & 3 and his findings "with closed mind just to save his own departmental officials" and further observed that had the MCD looked into the grievance of the appellant "genuinely" and "with open mind" then certainly, there would not have arisen "any need to approach this Tribunal". The grouse of the Tribunal seems to be that the Superintending Engineer while rejecting the contentions of the respondents no. 2 & 3 tried to justify it by referring to internal notings including advise by legal department, site inspection report, structural safety reports etc. which according to the Ld. Appellate Tribunal, MCD ought not to have been considered. What the Ld. Appellate CISMCD APPL032016 Page 25 of 27 Tribunal overlooked was that the Superintending Engineer while dealing with an application for sanction of building plans was not performing a judicial function and was performing an administrative function. These observations of the Ld. Appellate Tribunal are therefore, misplaced.
The Ld. Appellate Tribunal, MCD further erred in exercising its power u/s 347C(4) of DMC Act for imposing cost of the litigation as it was not warranted. As noticed, there was no misrepresentation in respect of the ownership of the second floor and the ownership of the entire building was first set up by the appellants when even the respondent nos.2 and 3 required their sanctioned plan to get the first floor constructed. The appeal before the Ld. Appellate Tribunal, MCD was preferred by the respondent nos.2 and 3. In these circumstances, it was unjustified to burden the present appellants with costs. It is also curious that the Ld. Appellate Tribunal, MCD felt it was alright to burden the LRs of the deceased original allottee as if the LRs of the deceased original allottee could be clothed with such liability and be punished for the alleged acts of the deceased original allottee. Without hearing the architect, the Ld. Appellate Tribunal, MCD has chosen to direct the SDMC to depanel him from the approved architect list of MCD after issuing show cause notice. This is against all canons of law and principles of natural justice. Moreover, the Ld. Appellate Tribunal, MCD went beyond its jurisdiction in straightway directing that the portions that have been regularised should also be demolished. There was no indication that CISMCD APPL032016 Page 26 of 27 the regularization was against the rules or were relating to non compoundable excesses. Thus, it is clear that the Ld. Appellate Tribunal, MCD has completely misdirected itself in dealing with the matter and cancelling the sanction plan of 26.11.10. It has also gone far beyond what was called for by directing demolition, lodging of FIR & initiation of criminal prosecution against the original allottees, delisting of the architect and imposition of costs including on the LRs of Smt. Shakuntla Devi. None of these directions can be sustained.
In these circumstances, the present appeal is allowed. The impugned order dated 07.07.14 of the Ld. Appellate Tribunal, MCD is set aside in toto. The orders of the SDMC dated 26.11.10 and 29.08.11 are upheld.
The trial court record be returned alongwith the copy of this order.
The file be consigned to the Record Room.
Announced in open Court (ASHA MENON )
today on 08.05.2017 District & Sessions Judge (South)
Saket/New Delhi.
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