Delhi District Court
Sh. Mahavir Singh Tokas vs New Delhi Municipal Corporation on 17 April, 2014
IN THE COURT OF SHRI I.S.MEHTA
DISTRICT & JUDGE SESSIONS JUDGE
NEW DELHI
MCD Appeal No.05/2013
Sh. Mahavir Singh Tokas,
S/o Late Capt Sobha Ram Tokas,
R/o 205E, Village Munirka,
Delhi110067
Appellant
Versus
New Delhi Municipal Corporation,
Through its Commissioner
Officer of Dy. Commissioner
South Zone, Green Park,
New Delhi
Respondent
Date of Institution : 26.10.2013
Date of Argument : 03.04.2014
Date of Decision : 17.04.2014
Appearance : Shri B. S. Mathur Ld. counsel for
the appellant.
Ms. Promila Kapoor Ld. Counsel
MDC Appeal No. 04/2013 Page No. 1 of 6
for respondent
O R D E R
This is an appeal filed by the appellant for setting aside the order dated 22.10.2013 (in short, referred to as the impugned order) passed by Ld. Appellate Tribunal dismissing the application of the appellant for grant of interim injunction.
2 Brief facts of the present case are that a show cause notice dated 5.2.2013 was issued to the appellant by the respondent regarding raising of unauthorised construction in property No. 205E Munirka Village, Delhi which was replied by the respondent. Thereafter as per the directions of Hon'ble High Court, proceedings were conducted and demolition order dated 27.9.2013 was passed by the concerned Dy. Commissioner.
3 The appellant preferred an appeal before the Appellate MDC Appeal No. 04/2013 Page No. 2 of 6 Tribunal MCD against the demolition order dated 27.9.2013. Along with the appeal, the appellant has also filed an application for grant of interim stay. The Ld. Appellate Tribunal, MCD after hearing the arguments dismissed the application for grant of stay vide order dated 22.10.2013.
4 Aggrieved from the said order, the appellant has preferred the present appeal on the ground that the Ld. Appellate Tribunal has exceeded its jurisdiction by traveling beyond its scope. It is further submitted that the Show Cause Notice dated 27.9.2013 is only against the property No. 205E whereas the impugned order has been communicated to the appellant at property No. 205E/1 also. The ld. Tribunal has wrongly shifted the onus on the appellant to prove which portion has been in existence prior to 2007 and which portion was raised after 8.2.2007. The Ld. Tribunal has grossly erred in considering the material which was never the basis of issuance of show cause notice and demolition order. The Ld. MDC Appeal No. 04/2013 Page No. 3 of 6 Tribunal passed the impugned order without considering the fact that the demolition order dated 27.9.2013 is illegal, arbitrary, unjust and against the facts and law applicable and is not sustainable in the eyes of law. The Ld. Tribunal failed to appreciate that if at all the quasi judicial authority was of the view that unauthorized construction existed, it was supposed to give mandatory notice U/s 343 of the Act and then the demolition order could have been passed. The property in question, is situated in Village Abadi and there is no layout plan of the area nor there is any requirement of sanction of building plan. The impugned order is based on conjectures and surmises and devoid of merit. The action of the respondent in passing the demolition order against the property of the appellant is highly discriminatory. The appellant has not raised any new construction at any point of time in the existing structure after 2006, except the necessary renovation for which no prior permission is required from the respondent. The impugned order is bad in law as the construction of the appellant in existence, is in MDC Appeal No. 04/2013 Page No. 4 of 6 conformity with the provisions of building bye laws and mandate of the Master Plan of Delhi 2021. The Ld. Tribunal failed to appreciate that the demolition order has been issued without application of mind and is arbitrary and discriminatory and has prays for setting aside the impugned order dated 22.10.2013. 5 I have heard Sh. B. S. Mathur ld. Counsel for the appellant and Ms. Promila Kapoor ld. Counsel for the respondents. 6 The ld. Counsel for the appellant has submitted that the appellant has not raised any new construction at any point of time in the existing structure after 2006 except the necessary renovations for which no prior permission is required from the respondent. The ld. Counsel of the appellant has further submitted that the appellant has filed the appeal before the Ld. Appellant Tribunal, MCD which is admitted by Ld. Appellant Tribunal, MCD and is pending disposal and further submitted that there is every apprehension of execution MDC Appeal No. 04/2013 Page No. 5 of 6 of demolition order dated 27.9.2013 in case injunction is not granted and the very purpose of filing of the appeal will be frustrated and prays that injunction order qua the respondent be issued. 7 On the other hand ld. Counsel for the respondent Ms. Promila Kapoor has vehmently opposed the contention of ld. Counsel for the appellant and submitted that there is no merit in the appeal and there is no illegality in the order dated 22.10.2013 and prays th at the appeal of the appellant be dismissed. 8 From the perusal of the record it shows that the show cause notice finds mentions about the existence of the old structure in the property in question and reply to the show cause notice also alleges that the alleged construction is made prior to the year 1995. The present appeal is admitted by the Ld. Appellant Tribunal, MCD vide order dated 7.10.2013 and the same is now fixed for 16.7.2014. 9 Since the show cause notice itself indicates that on the MDC Appeal No. 04/2013 Page No. 6 of 6 property ie No. 205E Munirka Village, New Delhi there exists an old structure. The property in question is situated in the Abadi Deh of Village Munirka. It is for the respondent to explain at what time and on what portion the alleged unauthorised construction came into existence and whether the respondent has taken required steps as per law. Therefore, there is a prima facie case in favour of the appellant and the appellant has already filed the appeal which is pending disposal.
In these circumstances parties are directed to maintain status quo in respect of the property in question till the disposal of the appeal. Reliance is placed on the case of M/s Sahib Dayal Chaman Lal V/s Municipal Corporation of Delhi ( 1977 ) 13 DLT 17. The impugned order dated 22.10.2013 passed by Ld. Appellate Tribunal, MCD is set aside.
Parties are directed to appear before the Ld. Appellate Tribunal, MCD on 16.7.2014.
Trial Court Record be sent back with copy of this order. MDC Appeal No. 04/2013 Page No. 7 of 6 Appeal file be consigned to record room.
Announced in the open court on this 17th day of April, 2014.
( I. S. MEHTA ) District & Sessions Judge New Delhi MDC Appeal No. 04/2013 Page No. 8 of 6