Delhi District Court
Suman Bala Saini vs South Delhi Municipal Corporation on 4 August, 2014
IN THE COURT OF SHRI R.K. GAUBA: DISTRICT &
SESSIONS JUDGE (SOUTH) : SAKET NEW DELHI
MCD Appeal No. 01/2014
ID No.: 02406C0045132014
1. Suman Bala Saini
W/o Shri Balkishan Saini
2. Bal Kishan Saini
S/o Late Shri Narpat Singh
Both (1) & (2) R/o:
499, Hardev Puri, Gautam Nagar,
New Delhi110049. ... Appellants
Versus
1. South Delhi Municipal Corporation
through its Commissioner,
17th Floor, Civic Centre,
Minto Road, New Delhi 110049.
2. Assistant Engineer (Building)
South Zone, SDMC,
Office of Ex. Engineer (Bulding)I,
Green Park, New Delhi. ... Respondents
Instituted on: 22.02.2014
Judgment reserved on: 04.08.2014
Judgment pronounced on: 04.08.2014
R.C.A. No. 01/14 Suman Bala Saini & Anr. Vs. SDMC & Anr. Page 1 of 7
J U D G M E N T
1. This appeal u/s. 347D of Delhi Municipal Corporation Act, 1957 (hereinafter referred to as "the DMC Act") has been preferred to assail the judgment dated 11.02.2014 passed by Sh. Ashwani Sarpal, Presiding Officer, Appellate Tribunal, Municipal Corporation of Delhi (ATMCD), on the file of appeal no. 338/13 whereby while allowing the appellants to withdraw the appeal presented by them under section 347 (B) of MCD Act, ordered that demolition order bearing no. 24/UC/BI dated 09.03.2010 stood confirmed and directed the Municipal Corporation of Delhi (MCD) to take demolition action in the property described as No. 499, Hardev Puri, Gautam Nagar, New Delhi within one month and submit action taken report to the tribunal.
2. On notice, the respondents have appeared through counsel. In spite of sufficient opportunity, no reply has been filed.
3. I have heard Shri Ranjan Kumar, advocate for the appellants and Shri Rajiv Bhardwaj, advocate for the respondents. I have gone through the record of ATMCD which has been called for the purposes of this appeal.
R.C.A. No. 01/14 Suman Bala Saini & Anr. Vs. SDMC & Anr. Page 2 of 7
4. On perusal of the record of the tribunal, it is noted that the appeal before the ATMCD had been filed essentially to assail the vacation notice/order no. D/159/Bldg.I/SZ/2013 dated 28.05.2013 passed by Asstt. Engineer (Bldg.), South Zone, Office of the Ex. Engineer (Bldg.)I, South Zone, Green Park, New Delhi110016 in respect of the aforementioned property. The copy of the vacation notice which was submitted on record would indicate that it had been issued on allegations that unauthorised construction in the shape of ground, first, second and third floor had been carried out in the property in respect of which the occupants had not given a notice for completion of the erected building nor the Commissioner, South Delhi Municipal Corporation (SDMC) had granted permission for occupation and, thus, the occupancy was in contravention of section 346 of DMC Act, 1957. It appears further that the respondents while resisting the appeal, inter alia, referred to unauthorised construction having been noticed in March, 2010 leading to a demolition order being passed vide No. 24/UC/BI dated 09.303.2010.
5. On 06.02.2014, the appellants moved application before the ATMCD seeking permission to withdraw the said appeal against R.C.A. No. 01/14 Suman Bala Saini & Anr. Vs. SDMC & Anr. Page 3 of 7 the vacation notice referring, inter alia, to the civil suit no. 222/13 then stated to be pending in the court of Shri Munish Markan, Additional Senior Civil Judge, South, Saket on the same facts and circumstances.
6. The application for withdrawal was taken up by the ATMCD on 11.02.2014 and the following order was passed: "A.No. 338/13 11.02.2014 Present : Appellants with Sh. Mithun Kumar Sinha, proxy counsel for appellant.
Sh. Shashikant Sharma, Adv. for MCD.
Appellants have withdrawn the present appeal unconditionally by giving separate statement. They have also moved an application in this regard on 06.02.2014. Counsel for respondent is pressing for the litigation cost.
In view of the statement given by the appellants and countersigned by the proxy counsel for appellants, the present appeal is dismissed as withdrawn. Appellants are also directed to pay litigation cost of Rs. 5,000/ within seven days with the Registrar of this Tribunal to be deposited in the account of the respondent. In case cost is not deposited within seven days then MCD shall be at liberty to recover it through execution proceeding.
The impugned demolition order bearing No. 24/UC/BI dated 09.03.2010 in respect R.C.A. No. 01/14 Suman Bala Saini & Anr. Vs. SDMC & Anr. Page 4 of 7 of property No. 499, Hardev Puri, Gautam Nagar, New Delhi belonging to the appellants is confirmed. MCD is directed to take demolition action in the property within one month and submit the action taken report to this Tribunal. Record of the respondent be sent back alongwith copy of the order and appeal file be consigned to record room.
Sd/ (ASHWANI SARPAL) Appellate Tribunal:MCD 11.02.20014
7. The appellants are aggrieved with the final paragraph of the aforementioned order on the grounds the question of confirmation of the demolition order dated 09.03.2010 was not in issue before the tribunal and, therefore, the ATMCD could not have made such observations nor could it direct the demolition action to be taken in the manner ordered.
8. The counsel for the respondents verbally submitted that demolition action has been carried out twice in the property in question in the wake of the demolition order.
9. On being asked as to whether the demolition order was ever challenged, the counsel for the appellants submitted no show cause notice had ever been issued and, therefore, the R.C.A. No. 01/14 Suman Bala Saini & Anr. Vs. SDMC & Anr. Page 5 of 7 opportunity or occasion for challenging the demolition order had never arisen. But when questioned further, the counsel for the appellants fairly conceded that knowledge about the demolition order (having been passed qua the property in question) had been acquired on the basis of submissions made by the respondents before the ATMCD, during the course of hearing on the appeal from which the present appeal arises. On being asked to clarify as to why such demolition order about which knowledge had been acquired was not challenged, the counsel would not give a clear reply.
10.Be that as it may, the fact remains that in the appeal in the course of which impugned order was passed, the only question raised was about the validity of the vacation notice dated 28.05.2013. The question of validity of the demolition order dated 09.03.2010 had not been raised not was it an issue requiring determination. Further, in the facts and circumstances, it was not for the ATMCD to become the executing court in respect of demolition order dated 09.03.2010 so as to issue a direction for it to be carried out and for action taken report to be submitted, particularly without inquiring if any action had already been undertaken in its wake (as is the impression now R.C.A. No. 01/14 Suman Bala Saini & Anr. Vs. SDMC & Anr. Page 6 of 7 sought to be created).
11.For the foregoing reasons, the final directions in the concluding paragraph of the order dated 11.02.2014, as extracted above, are liable to be set aside. Ordered accordingly. For removal of doubts, if any, instead, it is clarified that the respondents would be at liberty to take all necessary action in execution of the demolition order dated 09.03.2010 in accordance with law, subject to remedies, if open and available to the appellants thereagainst.
12.The appeal stands disposed of with these observations/directions. The parties are left to bear their own costs.
13.A copy of the judgment be given dasti to both sides.
14.The ATMCD record along with copy of this judgment be sent back.
15. File of the appeal be consigned to record room. Announced in open Court today on this 04th day of August, 2014 (R.K. GAUBA) District & Sessions Judge (South) Saket/New Delhi R.C.A. No. 01/14 Suman Bala Saini & Anr. Vs. SDMC & Anr. Page 7 of 7