Delhi District Court
Sheikh Fakhruddin Kalia And Ors vs Mcd on 16 December, 2025
IN THE COURT OF SH. AMIT KUMAR:
ADDL. DISTRICT & SESSIONS JUDGE-CUM-PRESIDING OFFICER,
APPELLATE TRIBUNAL, M.C.D., DELHI.
APPEAL NO. 387/ATMCD/2021
1. Sheikh Fakhruddin Kalia
Son of Sheikh Raisul Yaqin Kalia
2. Azka Sheikh Kalia
Daughter of Sheikh Raisul Yaqin Kalia
3. Mrs. Farida Kalia
Wife of Sheikh Raisul Yaqin Kalia
All residents of:
6, 3rd Floor, Alipur Road
Sham Nath Marg
Raj Niwas Marg, Civil Lines
Delhi-110054
........... Appellants
Versus
Municipal Corporation of Delhi
Through its Commissioner
Civic Centre, Minto Road
New Delhi
......... Respondent
Date of Filing of Appeal : 02.11.2021
Date of Judgment : 16.12.2025
APPEAL NO. 11/ATMCD/2022
1. Sheikh Fakhruddin Kalia
Son of Sheikh Raisul Yaqin Kalia
2. Azka Sheikh Kalia
Daughter of Sheikh Raisul Yaqin Kalia
3. Mrs. Farida Kalia
Wife of Sheikh Raisul Yaqin Kalia
A. No. 387/21 & 11/22 Sheikh Fakhruddin Kalia & Ors. Vs MCD Page No. 1 of 6
All residents of :
6, 3rd Floor, Alipur Road
Sham Nath Marg
Raj Niwas Marg, Civil Lines
Delhi-110054
........... Appellants
Versus
Municipal Corporation of Delhi
Through its Commissioner
Civic Centre, Minto Road
New Delhi
......... Respondent
Date of Filing of Appeal : 10.01.2022
Date of Judgment : 16.12.2025
JUDGMENT
1. These are two appeals challenging the demolition order dated 25.09.2020 in appeal no. 11/22 and sealing order dated 08.04.2021 in appeal no. 387/21 passed in respect of basement, ground, first, second and third floor of property bearing no. 6, Sham Nath Marg, Delhi-110054. The appellants are the owners of the third floor of this property and have challenged these two orders primarily on the ground that show cause notice was not served upon the appellants and further no fresh construction was raised in the property which was purchased by the appellants in 2018 and yet action was taken against the property. The notice was served on one Mukesh Gupta stated to be the owner/ builder of the property and was never served upon the appellants. The house tax record submitted by the appellants was not considered by the Quasi Judicial Authority which reflects that the property is old and occupied and is protected under National Capital Territory of Delhi Laws (Special Provision) Second Amendment Act, 2011 and therefore, the impugned orders are liable to be set aside.
2. Ld. counsel for the appellants has placed reliance on the following judgments:
A. No. 387/21 & 11/22 Sheikh Fakhruddin Kalia & Ors. Vs MCD Page No. 2 of 6 (1) Mahinder Singh & Ors. Vs. Municipal Corporation of Delhi- 1987 SCC Online Del 441.
(2) Ram Kishan Adopted Son Kirodi Vs. Ram Dai and Others - S.B, Civil Writ Petition No. 3789/2021 dated 22.07.2025 of Hon'ble Jaipur High Court.
(3) Manmohan Singh Vs. Municipal Corporation of Delhi - 1997 SCC Online Del 752.
(4) Govind Global Venturees Pvt. Ltd. Vs. The Commissioner of Customs - W.P. (C) 12619/2025 dated 24.11.2025 by Hon'ble Delhi High Court.
(5) M/s Tara Palace Hotel Vs. Municipal Corporation of Delhi -
Appeal No. 98/ATMCD/2025 dated 16.07.2025 of Appellate Tribunal, MCD.
(6) M/s Tara Palace Hotel Vs. Municipal Corporation of Delhi -
Appeal No. 99/ATMCD/2025 dated 16.07.2025 of Appellate Tribunal, MCD.
3. Ld. counsel for the respondent on the other hand argued that the notices were duly served as required under DMC Act. Husband of the appellant even appeared before the Quasi Judicial Authority and the reply was also submitted on behalf of the appellants which was duly considered. Unauthorized construction was being raised in the property since 2017 when it was initially booked and thereafter, the appellants purchased the property in 2018 despite knowing that unauthorized construction has been raised. Further unauthorized construction was raised even after initial booking up to third floor and therefore, being a case of fresh construction and violation of status quo, the protection under National Capital Territory of Delhi Laws (Special Provision) Second Amendment Act, 2011 is not available.
4. I have perused the record. As per the case of the appellants, they purchased the third floor of the property through 06 Sale Deeds dated 31.10.2018, 26.11.2018, 29.10.2018, 27.11.2018. The record to these Sale Deeds were also summoned by this Tribunal from the Office of Sub Registrar concerned which shows that the property was already booked for unauthorized construction on all the floors. It means that unauthorized construction in the A. No. 387/21 & 11/22 Sheikh Fakhruddin Kalia & Ors. Vs MCD Page No. 3 of 6 property stood already booked when the appellants purchased the third floor of the property. As per the office record of the MCD, the property was initially booked for unauthorized construction on 15.02.2017 for unauthorized construction of entire basement and ground floor and thereafter, the demolition order dated 15.03.2017 was passed recording unauthorized construction of basement and ground floor and further unauthorized construction at first floor. This show cause notice and demolition order was issued to Mr. Kailash Gupta / Arvind / Owner / Builder.
5. The appellants purchased the property from Mr. Kailash Gupta who sold in his personal capacity as well as in his capacity as Karta of HUF Kailash Chand Gupta. Despite this booking, unauthorized construction in the property continued and it was again booked through show cause notice dated 7.9.2020 for unauthorized construction at second and third floor. This booking was in continuation of the previous booking dated 15.02.2017 of basement, ground and first floor. The show cause notice dt.7.9.2020 and the impugned demolition order dated 25.09.2020 was issued in the name of Kailash Gupta / Arvind / Farida Kalia / Owner / Builder. Farida Kalia is appellant no. 3 before me.
6. It was argued for the appellant that the show cause notice dated 07.09.2020 and the demolition order dated 25.09.2020 were never served upon them. The notice was served on some Mukesh Gupta who had no concerned with the property. As per office record, the show cause notice dated 07.09.2020 was sent through speed post to the appellant Farida Kalia and Kailash Gupta and since no reply was received, the demolition order dated 25.09.2020 was passed and sent through speed post to Mr. Kailash. However, these envelopes came back with the report "not met despite visits". The demolition order thereafter was pasted at site on 14.10.2020 and photographs thereof were also taken. The same is sufficient service as required under section 444 of the DMC Act. The judgments relied upon by Ld. Counsel for the appellants are not applicable to the facts of the case. In the present case, the show cause notice and the demolition order were sent through speed post and returned back with the report "not met despite visits" and thereafter, the same were served by pasting. Section 444 of DMC Act provides three ways of serving notice i.e. 1) by giving or tendering 2) if not found, by affixation and A. No. 387/21 & 11/22 Sheikh Fakhruddin Kalia & Ors. Vs MCD Page No. 4 of 6
3) by registered post. It cannot be said that notice has to be pasted only on refusal or if there is no independent witness to pasting, the service is defective. The service by way of pasting when the speed post envelope returned back with the report that "not met despite visits" is proper service. For this, reliance can be placed on the judgment of Hon'ble Delhi High Court passed in Paramjeet Kaur Vs. MCD 1994 (56) DLT 720, Narender Prasad Dubey Vs. Union of India 1999 (81 ) DLT 378, Hari Datt Vashisht Vs. MCD 1978 (2) ILR (Delhi) 28, Usha Devi Sharma Vs. MCD 2020 (271) DLT 76. In these facts, the show cause notice and the demolition order were duly served upon the appellants.
7. Coming to the sealing record, the sealing show cause notice dated 02.11.2020 was duly replied by Kailash Gupta on 03.11.2020 and by the appellant Farida Kalia on 04.11.2020. Thereafter, the sealing order dated 08.04.2021 was passed. This order duly records that reply was received from Farida Kalia and Kailash Gupta and after considering their replies, the property was directed to be sealed. Therefore, the question of service is no longer in dispute in the sealing file.
8. Coming to the aspect as to whether the property is old and occupied prior to 08.02.2007, to get protection under National Capital Territory of Delhi Laws (Special Provision) Second Amendment Act, 2011, it is relevant to note that property was initially booked for unauthorized construction of the basement, ground and first floor in 2017 and thereafter, on the second and third floor in 2020. This clearly proves that fresh unauthorized construction was raised in the property after 08.02.2007 and thus the status quo qua construction as required to be maintained to get protection under National Capital Territory of Delhi Laws (Special Provision) Second Amendment Act, 2011 was violated by the appellants. Record shows that as per the appellants, they purchased the third floor of the property from Kailash Chand Gupta, Nitin Gupta and Kailash Chand Gupta HUF in 2018. An FIR No. 233/17 at PS- Civil Lines was registered against Kailash Chand Gupta, Nitin Gupta and Ors. under Section 332/334/343/344/347/461 of the DMC Act. These Sections relate to offenses and penalties of raising construction without sanction. All these accused who were predecessor of interest of the appellants, pleaded guilty for these offenses on 03.10.2018 for offense committed in 2017. It proves that the A. No. 387/21 & 11/22 Sheikh Fakhruddin Kalia & Ors. Vs MCD Page No. 5 of 6 status quo was violated by raising unauthorized construction after 08.02.2007 and therefore, the construction being fresh after 08.02.2007 and without any sanction, is not entitled to protection under National Capital Territory of Delhi Laws (Special Provision) Second Amendment Act, 2011.
9. The appellants have not filed any documents to show the extent of construction existing on 08.02.2007 and are not entitled to any protection. The appellants filed a suit bearing Suit No. 130/2020 against Kailash Chand Gupta and Ors. and themselves mentioned in para 3 of this suit that Kailash Chand Gupta and Ors. are builders by profession and reconstruct properties without sanction plan in Civil Lines, Kamla Nagar etc. and have been convicted in FIR 233/17. This also proves that fresh construction was raised in the property. In that suit in para 6 & 7, it was stated by the appellants that Kailash Chand Gupta and Ors. had constructed basement to third floor in this property after purchasing the same in 2016 which means that fresh construction even as per the appellants was raised after 2016 i.e. much later to 08.02.2007 and in these facts, no protection under National Capital Territory of Delhi Laws (Special Provision) Second Amendment Act, 2011 is available to the appellants.
10. In view of these above discussions, both the appeals are devoid of merits and are dismissed.
11. The demolition and sealing orders are upheld.
12. Record of the respondent, if any, be returned along with copy of this order and appeal file be consigned to record room.
Announced in the open Court today i.e. on 16.12.2025 (AMIT KUMAR) Addl. District & Sessions Judge PO: Appellate Tribunal, MCD, Delhi A. No. 387/21 & 11/22 Sheikh Fakhruddin Kalia & Ors. Vs MCD Page No. 6 of 6