Delhi High Court - Orders
Sh. Ram Dev Sharma & Ors vs North Delhi Municipal Corporation on 14 July, 2020
Author: Najmi Waziri
Bench: Najmi Waziri
$~3 & 4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 4149/2020
SH. RAM DEV SHARMA & ORS. .....Petitioners
Through: Mr Tanmaya Mehta, Mr Rajesh
Bhatia and Mr Hemant Kakkar,
Advocates.
versus
NORTH DELHI MUNICIPAL CORPORATION ..... Respondent
Through: Ms Jyoti Taneja, Advocate.
+ W.P.(C) 4150/2020
SH. RAM DEV SHARMA & ORS. .....Petitioners
Through: Mr Tanmaya Mehta, Mr Rajesh
Bhatia and Mr Hemant Kakkar,
Advocates.
versus
NORTH DELHI MUNICIPAL CORPORATION ..... Respondent
Through: Ms Jyoti Taneja, Advocate.
.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
ORDER
% 14.07.2020
1. The hearing was conducted through video conferencing. CM APPL. 14929/2020 (Exemption) in W.P.(C) 4149/2020 CM APPL. 14932/2020 (Exemption) in W.P.(C) 4150/2020
2. Allowed, subject to all just exceptions. The applications stand disposed off.
CM APPL. 14930/2020 (Court fee) in W.P.(C) 4149/2020 CM APPL. 14933/2020 (Court fee) in W.P.(C) 4150/2020
3. Exemption allowed, subject to the condition that the Petitioners/applicants will file the duly sworn/attested affidavit and the requisite Court fee within 72 hours from the date of resumption of the regular functioning of this Court.
4. The applications stand disposed-off.
W.P.(C) 4149/2020 & CM APPL. 14928/2020 (stay) W.P.(C) 4150/2020 & CM APPL. 14931/2020 (stay)
5. Issue notice.
6. The learned counsel for the respondent as mentioned above accepts notice.
7. It is the petitioners' contention that the property in question was purchased in the year 1995 by the petitioner. However, the structure is a few decades old, as is born out from the report of the Assistant Engineer dated 17.08.2001, which notes, inter alia, as under:
"...I have gone through the entire record placed before me and also gone through the reply/documents submitted by the appellant. After examining all the records, I found, the department has booked only U/C of digging of floor below road level and lying of left at G.P. One hall at first floor and one hall at second floor. As per the House Tax survey record of the year, 1959-60 and 1976-77, submitted by the appellant and also notice issued under section 348 of DMC Act I' by the EE(DB), it is evident that the alleged unauthorized construction, which is shown in the show cause notice, is in fact very old and appellant has only carried out minor repairs as per the clause 6.4.1. of unified BBL and as such the repairs do not amount to erection of building as defined U/s 331 if DMC Act, and as such does not require any sanction U/S 331/334 of the DMC Act. I also got the property inspected and found that only permissible repairs has been carried out. As per the House Tax record of the intermediate property, floor (Left) was 1n existence old. The floor an very ground such 1S lower as the since long' construction at first floor and second floor is also very old. I have gone through the House Tax assessment record of the property which clearly shows that the said construction, as alleged In the show cause notice bearing No.140761 dated 18.11. 96, is very very old, and exists and tally in the house tax record maintained by the concerned department. In view of above, I do not find any cogent reason to disbelieve the version of the appellant that the construction carried out in the property, is covered under minor repair as per clause 6.4.1, if the unified Building by laws. Since the constructed as alleged in the show cause notice booked vide file NO. 290/B/UC/CZ/96 dated 18.1196, is not unauthorized construction. Therefore, in view of above facts, I hereby withdraw the show cause and demolition notice lS respect of digging of floor below road level, laying as loft at G.P., one hall at first floor and one hall at second floor bearing show cause notice No.140761 dated 18.11.96 and notice U/s 343(1) vide bearing no.132101 dated 26.11.96.
Accordingly, I, while exercising the powers of the commissioner duly delegated to me U/S 343(1) r/w section 491 of the DMC Act, I, hereby, withdraw the show cause notice booked vide filed no. 290/B/UC/CZ/96 dated 18.11.96. consequent upon, withdrawal, of the show cause notice for alleged unauthorized construction as specifically mention here in above, the notice issued under section 345- A of the DMC Act, bearing no. D/ZE/B/UC/CZ/97/132 has automatically become infractuous. I also withdraw, by this order, the show cause notice issued under section 345-A of the DMC Act bearing No. D/ZE/B/UC/CZ/97 /132 dated 9.1.97. file be consigned to record room.
Issued under my hand and signature on this 17th day of August,2001..."
8. This factual report has been disregarded in the impugned order dated 20.01.2020 on the ground that it was procured illegally. The Corporation had challenged the aforesaid report before the learned trial court, but had not backed up its contentions with any administrative notice or departmental action against the said officer, alleging that he had acted in collusion with the petitioners. The petitioners claim ignorance of any action having been taken or the said officer having been put to notice by the Corporation before doubting/challenging his report. It is contended that the said stance of the Corporation being baseless, the impugned order has erred both in fat and in law. It is argued that the building has existed for several decades and only minor improvements inside the building were carried out; that the appellants have not encroached upon any public land. Reliance is placed upon The National Capital Territory of Delhi Laws (Special Provisions) Second Act, 2011, by virtue of which there is a moratorium on demolition of unauthorized construction, which existed up to 2006-07.
9. However, the learned counsel for the Corporation refutes the aforesaid contentions. She contends that there is not even a whisper anywhere in the pleadings, as to when this so-called renovation or construction was carried out by the petitioners. She submits that the construction in question is recent and not old, as claimed by the petitioners.
10.In view of the above, let the petitioners file an affidavit, within a period of three weeks, stating as to when the said construction/alternations took place, supported by photographs and building plans, if any, as well as House Tax receipts and user of the same.
11.In view of the above, the learned counsel for the Corporation submits that till the next date, no precipitate action shall be taken by the Corporation against the petitioners.
12. Reply be filed within four weeks from today. Rejoinder thereto, if any, be filed before the next date.
13. List on 19.08.2020.
14. The order be uploaded on the website forthwith. Copy of the order be also forwarded to the counsels through email.
NAJMI WAZIRI, J JULY 14, 2020/rd