Delhi District Court
Pradeep Sah vs North Delhi Municipal Corporation on 20 December, 2021
IN THE COURT OF MR. DHARMESH SHARMA
PRINCIPAL DISTRICT & SESSIONS JUDGE : WEST DISTRICT
TIS HAZARI COURTS : DELHI
RCA No. 39/2018
CNR No. DLWT01-003178-2018
Pradeep Sah
S/o Sh. Sita Ram Sah
R/o H.No. 3086, Gali No.7,
Ranjit Nagar, Delhi . . . . . . Appellant
Versus
North Delhi Municipal Corporation
Civic Center, Minto Road,
New Delhi . . . . . . Respondent
Date of Impugned Order : 15.02.2018
Date of Institution of appeal : 06.04.2018
Date of hearing arguments : 01.12.2021
Date of judgment : 20.12.2021
Appearances:
Ms. Radhika Arora, Advocate for the appellant.
Sh. Dharamvir Gupta, Advocate for the respondent/North-DMC.
Sh. Praveen Southey, Advocate for the Intervenor Sada Ram.
JUDGMENT
1. This judgment shall decide an appeal preferred by the appellant Sh. Pradeep Sah against the respondent i.e. North Delhi Municipal Corporation (hereinafter referred to as 'North-DMC') under Section 347-D of the Delhi Municipal Corporation Act, 1957 (66 of 1957) as amended up to date (hereinafter referred to as 'the DMC Act') whereby he has assailed the impugned order/judgment dated RCA No. 39/2018 Pradeep Sah vs. Noth-DMC Page 1 of 14 15.02.2018, passed by the Court of Shri Sanjeev Kumar, the then Ld. Presiding Officer, Appellate Tribunal, MCD, THC, Delhi (hereinafter referred to as 'the ATMCD') in appeal bearing No. 570/ATMCD/2012 titled as 'Pradeep Sah v. North Delhi Municipal Corporation', whereby the appeal under Section 343(2) of the DMC Act challenging the demolition order vide notice No. D/AE(B)/KBZ/2012 dated 19.09.2012 passed by the AE (B) in respect of property bearing No. 3087, Gali No.7, Ranjeet Nagar, New Delhi, was dismissed.
BRIEF FACTS
2. Briefly stated, it is the case of the appellant that he is owner and in possession of built-up plot measuring 32 Sq. Yards No. 3086, Gali No.7, Ranjeet Nagar, New Delhi, where he has been residing with his wife Smt. Nutan Gupta and three minor children; and that he purchased the said property along-with Manoj Kumar vide sale deed dated 30.11.2007; and that since the building was in an almost dilapidated shape for being more than 40 years, therefore, he renovated the same after buying it in the year 2009. It is further the case of the appellant that his plot is in two parts and in between two parts, there is a passage / gali, which is five feet wide. It appears that applicant/intervener Sada Ram is a neighbour and an arch rival of the appellant, who is owner and in possession of part of plot No. 3084 Gali No.7, Ranjeet Nagar, New Delhi. The appellant states that applicant/intervenor Sada Ram was raising construction of one portion of the plot while the other portion of the plot is lying vacant; and that Sada Ram attempted to illegally occupy a portion of the horizontal bar RCA No. 39/2018 Pradeep Sah vs. Noth-DMC Page 2 of 14 of the entire building although the same is meant for common used so much so that Sada Ram also opened a door in other portion of the plot No. 3084 after extending on the part of the unoccupied remaining portion of the gali which was facing remaining vacant plot of the appellant.
3. It is the case of the appellant is that the applicant/ intervenor Sada Ram has been using the common gali for entering to his property, which was restricted/protested by the appellant; and that Sada Ram also wanted to encroach the gali/passage between their properties and since the appellant had raised the construction only on 29 Sq. Yards of land out of 32 Sq. Yards, Sada Ram wanted to encroach upon the gali and 3 Sq. Yards of vacant land in front of the property of the appellant. It was stated that in order to usurp on the common gali/passage, Sada Ram filed a suit No. 347/2009 for permanent and mandatory injunction against him in August-2009, alleging that the appellant was raising illegal construction in the lane/gali left by father of Sada Ram. However, the said suit was dismissed in default for appearance of the plaintiff Sada Ram vide order dated 18.09.2009 but it is alleged that Sada Ram greased the palms of the MCD officials and persuaded them to demolish the house of the appellant.
4. It is further stated that in July-2011, Sada Ram called a mason & a team of labourers to his house and brought building material of various nature and started re-structuring and re-constructing as well RCA No. 39/2018 Pradeep Sah vs. Noth-DMC Page 3 of 14 as extending his built-up portion on the part of the plot No. 3084 after encroaching upon the portion of the common passage/gali and opening door of approximately into 3 Sq. Yards of his plot and aggrieved a representation was made to the SDM, Patel Nagar, Rampura, Delhi by him and other affected parties and a direction was passed restraining Sada Ram from carrying out any illegal and unauthorized construction but as he did not stop from proceeding with his unauthorized construction, the appellant filed a Civil Suit No. 157/2011 titled as 'Pradeep Sah v. Sada Ram & Ors.' and the Ld. Civil Court restrained Sada Ram from carrying out any unauthorized construction. It is further the case of the appellant that Sada Ram pressurized him to withdraw the suit and when he did not relent, Sada Ram filed a Suit No. 169/2011 based on false and frivolous grounds similar to the cause of action that espoused by him in his earlier suit No.347/2009 dismissed in default on 18.09.2009; and that FIR was also got registered against the appellant and his wife on false and concocted allegations viz., FIR No. 210/11 under Section 3 of the Schedule Casts and Schedule Tribes (Prevention of Atrocities) Act, 1989.
5. In the aforesaid background, it was case of the appellant that on 01.06.2012 he came to know about a Show Cause Notice bearing No. B/UC/ FP2/12/B5 dated 11.05.2012 was issued by the respondent North-DMC calling upon the appellant to demolish the construction on his premises No. 3087, Gali No.7, Ranjeet Nagar, Delhi. It is the case of the appellant that he submitted a detailed reply to the MCD pointing out that his property is built up construction on plot RCA No. 39/2018 Pradeep Sah vs. Noth-DMC Page 4 of 14 No. 3086 and that he had no concern with 3087 and inter alia submitting that property is an old construction and in existence for more than forty years and that the grievance of the appellant was that despite his detailed representation, the impugned demolition order dated 19.09.2012 was passed in a mechanical and in unlawful manner, which was assailed before the Ld. ATMCD.
IMPUGNED ORDER BY THE LD. ATMCD
6. The Ld. ATMCD vide the impugned order/judgment dated 15.02.2018 found from the record made available by the North-DMC that initially FIR No. B/UC/KBZ/09/2014 dated 10.09.2009 was lodged by the North-DMC for unauthorized construction on ground floor and first floor with projection on the municipal land in property No. 3087, gali No. 7, Ranjeet Nagar and on the same day a Show Cause Notice was issued in the name of the appellant and a demolition order was passed on 17.09.2009. Further, another FIR No. B/UC/KBZ/2012/135 dated 01.05.2012 for unauthorized construction on 2nd and 3rd floor with projection on municipal land was booked and on the same day Show Cause Notice was issued to the appellant Pradeep Sah and a demolition order dated 11.05.2012 was passed. Further, ld ATMCD did not find any merit in the submission by the appellant that the impugned order of demolition had been passed qua property No. 3087 whereas his property was bearing No. 3086. It was observed that although the sale deed dated 30.11.2007 relied upon by the appellant indicated that the property was bearing No. XVII/3086 measuring 32 Sq. yards in Khasra No. 318/27 in the area of Village Shadipur in the abadi of RCA No. 39/2018 Pradeep Sah vs. Noth-DMC Page 5 of 14 Ranjeet Nagar, gali No.7, however, the appellant in CS No. 157/2011 filed against Sada Ram indicated that his property was bearing No. 3086/3087, which fact was reiterated by him in his affidavit; and that the appellant in the written statement filed by him in suit CS No. 169/2011 by Sada Ram against him also indicated that his property was bearing No. 3086/3087 besides the fact that in the reply dated 04.06.2012 in response to demolition order dated 11.05.2012 he had asserted that he had purchased the property No. 3087 and residing in the same. Accordingly, it was held that plea of the appellant that the impugned demolition order dated 19.09.2012 was not qua his property but some other property, was rejected.
7. Further, finding that the property in question had been constructed without any sanction plan under Section 336 of the DMC Act and the appellant failed to show that construction on the property had been carried out prior to 08.02.2007, hence it was held that the appellant can not derive any benefit under the National Capital Territory of Delhi Laws (Special Provision) Act, 2011(for short 'NCTDL Act') and eventually the appeal was dismissed with costs of Rs. 20,000/-.
GROUNDS OF APPEAL:
8. The appellant in the present appeal under Section 347D of the DMC Act has assailed the impugned order/judgment dated 15.02.2018 inter alia on the grounds that Ld. ATMCD failed to appreciate that construction in the property had taken place prior to 08.02.2007 and by virtue of the NCTDL Act, no action could be initiated for demolition of the property by North-DMC; and that the Ld. ATMCD RCA No. 39/2018 Pradeep Sah vs. Noth-DMC Page 6 of 14 failed to appreciate that no notice had been issued by the respondent/North-DMC under Section 343 of the DMC Act with regard to property No. 3086, Gali No.7, Ranjeet Nagar, New Delhi; and that the officials of the North-DMC failed to verify the property of the appellant on physical inspection and the Ld. ATMCD failed to appreciate that he is owner of the property No. 3086 while 3087 is a different property situated far away from his property No. 3086; and that the Ld. ATMCD failed to appreciate that that even the applicant/intervenor Sada Ram himself admitted that the appellant was owner and occupant of premises No. 3086 and that the notice No. B/UC/KBZ/09/2014 dated 10.09.2009 was never served upon the appellant and any action thereupon was bad in law; and that the Ld. ATMCD failed to appreciate that appellant has been depositing house tax in respect of property No. 3086 and the applicant/intervenor has been in collusion with the officials of the North-DMC and orchestrating this entire campaign for causing him mental harassment and financial disadvantage.
9. It is pertinent to mention here that main contesting parties have the appellant and the North-DMC and an application under Order I Rule 10 CPC was moved on behalf of the applicant/intervener Sada Ram, which was dismissed by the Ld. ATMCD vide order dated 23.08.2017, placing reliance on the decision in the case of Hardayal Singh Mehta v. MCD, AIR 1990 Delhi 170. However, the applicant/ intervener was allowed to file written submissions and address arguments at the final stage of the appeal. This Court/Tribunal has followed the same dispensation.
RCA No. 39/2018 Pradeep Sah vs. Noth-DMC Page 7 of 14DECISION
10. I have given my thoughtful consideration to the rival submissions advanced by the learned Counsel for the main parties as also the applicant/intervenor Sada Ram at Bar. I have perused the record in the present appeal file as well as the original record of the Ld. ATMCD.
11. 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"
12. 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 now 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 RCA No. 39/2018 Pradeep Sah vs. Noth-DMC Page 8 of 14 order of demolition and stoppage of building and also works of construction in certain cases. Similarly, Section 347-B of the DMC Act 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 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'.
13. Since this is a case of examining the legality of the construction at the site, it would is necessary to reproduce Section 336 of the Act, which reads as under:-
"336.Sanction or refusal of building or work.--(1) The Commissioner shall sanction the erection of a building or the execution of a work unless such building or work would contravene any of the provisions of sub-section (2) of this section or the provisions of section 340.
(2) The grounds on which the sanction of a building or work may be refused shall be the following, namely:--(a) that the building or work or the use of the site for the building or work or any of the particulars comprised in the site plan, ground plan, elevation, section or specification would contravene the provisions of any bye-law made in this behalfor of any other law or rule, bye-law or order made under such other law; (b) that the notice for sanction does not contain the particulars or is not prepared in the manner required under the bye-laws made in this behalf; (c) that any information or documents required by the Commissioner under this Act or any bye-laws made thereunder has or have not been duly furnished; (d) that in cases falling under section 312, lay-out plans have not been sanctioned in accordance with section 313; (e) that the building or work would be an encroachment on Government land or land vested in the Corporation; (f) that the site of the building or work does not about on a street or projected street and that there is no access to such building or work from any such street by a passage or path-way appertaining to such site.RCA No. 39/2018 Pradeep Sah vs. Noth-DMC Page 9 of 14
(3) The Commissioner shall communicate the sanction to the person who has given the notice; and where he refuses sanction on any of the grounds specified in sub-section (2) or under section 340 he shall recorda brief statement of his reasons for such refusal and communicate the refusal along with the reasons therefor to the person who has given the notice.
(4) The sanction or refusal as aforesaid shall be communicated in such manner as may be specified in the bye-laws made in this behalf."
14. In view of the said proposition of law, explaining the scope of jurisdiction of this Court, reverting to the instant case, at the outset the present appeal is devoid of any merits. Though, the appellant relied on the registered sale deed dated 30.11.2007 in his favour, which describes property as Municipal No. XVII/3086 constructed on the piece of land measuring 32 Sq. Yards falling in Khasra 318/27 situated in the area of village Shadipur in abadi of Ranjeet Nagar, the Ld. ATMCD has rightly observed that the appellant in his reply dated 04.06.2012 in response to the Show Cause Notice No. B/UC/FP2/12/B5 dated 11.05.2011 issued by the MCD in respect of property No. 3087 in the same gali and location, had merely claimed that the notice was wrongly affixed on his property No. 3086. A perusal of his reply would show that there is cutting whereby the numeral '7' which was typed has been superimposed by '6' so as to read it as 3086. Any how, in the main body of the letter dated 04.06.2012 detailed reply is given wherein and it was denied that property No. 3087 is under construction for 2nd and 3rd floor and rather he called upon the MCD to furnish the photographs and documentary evidence that some construction was going on his property.
RCA No. 39/2018 Pradeep Sah vs. Noth-DMC Page 10 of 1415. Further, he reiterated that property No. 3087 had been purchased by him on 30.11.2007 from one Deepak Kumar and others which was built-up on a piece of land measuring 32 Sq. Yards with vacant portion of land of approximately 3-4 Sq. Yards; and that property No. 3087 has been in existence since 1968. It should be indicated here that no such sale deed has been filed by the appellant on the record and rather recital of the sale deed dated 30.11.2007 which has been placed by the appellant in respect of XVII/3086 show that the sellers were seven persons, namely, was Smt. Ashrafi Devi w/o Late Shri Kanwar Lal Kaushik, Smt. Kamla Devi w/o Sh. Suresh Chander Parashar, Smt. Nirmala Sharma w/o Satish Chander Parashar, Smt. Urmila Sharma w/o Sh. Satish Bhardwaj, Smt. Satya Sharma w/o Sh. Rajinder Sharma, Smt Renu Gautam w/o Sh. Babu Ram Gautam and Deepak Kumar S/o Late Shri Kanwar Lal Kaushik. The appellant claimed in reply dated 04.06.2012 that he got the building no. 3087 renovated in the year 2009 since it was lying in dilapidated condition for more than 40 years.
16. I am afraid the Ld. ATMCD has rightly found that the recital in the sale deed dated 30.11.2007 reveals that the property in question was having only ground floor construction with terrace roof rights whereas the fact that the premises was booked for unauthorized construction on the ground floor and the first floor on 10.09.2009 and later for unauthorized construction on 2nd and 3rd floor on 01.05.2012 has not been refuted or dispelled by the appellant. It is admitted position that no construction was done in the premises pursuant to RCA No. 39/2018 Pradeep Sah vs. Noth-DMC Page 11 of 14 sanction plan as required by Section 336 of the DMC Act either. The Ld. ATMCD has, therefore, rightly found that the appellant has miserably failed to show that construction of 2nd and 3rd floor existed prior to 08.02.2007 so as to derive advantage of the embargo from any legal action prohibited by virtue of the NCTDL Act
17. To my mind, the appellant has miserably failed to show that the impugned demolition order dated 11.05.2012 was pertaining to property No. XVII/3086 and such property was different from property No. 3087, which is further fortified from the fact that during the course of proceedings before the Ld. ATMCD vide its directions dated 23.08.2017 the North-DMC was called upon to place on record the site plan/lay out plan of property No. 3085 to 3088, gali No.7, Ranjeet Nagar, Delhi and the same was submitted on 03.10.2017 and the site plan filed by the North-DMC identified the property in question in shaded manner to which no challenge was made by the appellant. It is also borne out from the record of the Ld. ATMCD that action for demolition had already been taken in respect of property in question on 08.02.2017 with police aid. Be that as it may, the confusion that is sought to be created by the appellant with regard to identity of the property in question withers away owing to his own reply to CS No. 157/2011 filed by Sada Ram against him, wherein the appellant had pleaded inter alia that his property is bearing No. 3086/3087. Similar was the case of the appellant in the written submissions filed by him in suit No. 169/2011 by Sada Ram and even MCD in the written statement filed in suit No. 169/2011 re-confirmed the position that the property of the appellant was bearing municipal No. 3087 and not 3086.
RCA No. 39/2018 Pradeep Sah vs. Noth-DMC Page 12 of 1418. Unfortunate as it appears, even a belated application by the appellant for regularization of the construction at the premises in question came to be rejected by the North-DMC vide order dated 12.04.2017 and the Writ Petition No. 3109/17 filed by the appellant was disposed off by the Hon'ble Judge of the High Court of Delhi vide order dated 03.07.2017 in view of the rejection of the regularization application moved by the appellant. The plea of the appellant that he was an illiterate person and his Counsel wrongly mentioned the property to be bearing No. 3086/3087 cuts no ice as a Counsel duly represented him during the relevant time. In the final analysis, whatever be the motive of the arch rival in pursuing his own vendetta against the appellant, the said fact alone cannot obliterate or cloud the larger issue that the appellant has miserably failed to show that the respondent North-DMC has passed the demolition order in respect of a property different from the one over which he has no legal claim. All said and done, what is patently coming out from the documents viz., the photographs that were placed during the proceedings before the Ld. ATMCD is that the appellant was raising a new construction over the property No. 3087 up to third floor without obtaining any sanction plan.
19. In view of the aforesaid discussion, I find that the present appeal is bereft of any merits. This Court is unable to find out any illegality, perversity or incorrect approach adopted by the the Ld. ATMCD in dismissing the appeal under Section 343(2) of the DMC Act with costs of Rs. 20,000/-. Hence, the present appeal under Section RCA No. 39/2018 Pradeep Sah vs. Noth-DMC Page 13 of 14 347D of the DMC Act is dismissed and the North-DMC shall at liberty to take further action in terms of impugned demolition order No. D/AE(B)/KBZ/2012 dated 19.09.2012. In the facts and circumstances of the case no further costs are imposed upon the appellant. The only remedy available to the appellant is to apply for a sanction plan in terms of Section 336 of the DMC Act.
20. The original record of the Ld. ATMCD be sent back along- with copy of this Judgment. The instant appeal file be consigned to the Record Room. Digitally signed by DHARMESH DHARMESH SHARMA SHARMA Date: 2021.12.21 18:23:20 +0530 Announced in the open Court (DHARMESH SHARMA) on 20th December, 2021 Principal District & Sessions Judge/ Rent Control Tribunal (West) Tis Hazari Courts: Delhi RCA No. 39/2018 Pradeep Sah vs. Noth-DMC Page 14 of 14