Delhi High Court - Orders
Mahindra Kumar Rohatgi And Ors vs South Delhi Municipal Corporation And ... on 10 November, 2020
Author: Najmi Waziri
Bench: Najmi Waziri
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 13145/2019 & CM APPL. 53541/2019
MAHINDRA KUMAR ROHATGI AND ORS. ..... Petitioners
Through: Mr. Arun Kumar Varma, Sr. Adv.
with Mr. Ajay Bhargava, Mr. Aseem
Chaturvedi and Ms. Raddhika
Khanna, Advocates.
versus
SOUTH DELHI MUNICIPAL CORPORATION AND ORS.
..... Respondents
Through: Mr. Kapil Dutta, Advocate for
SDMC.
Ms. Suparna Srivastava, CGSC for
UOI with Mr. Tushar Mathur,
Advocate for R-2 and R-3.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
ORDER
% 10.11.2020 The hearing was conducted through video conferencing. CM APPL. 28673/2020 (fresh by R-2 for modification of order dated 16.10.2020)
1. This application seeks clarification of the order dated 16.10.2020 as it is of the view that the applicant/National Monument Authority ('NMA'), has there is no power to pass an order after it has given its view (under the provisions of the of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 ('AMASR Act') and that it does not have any power to grant ex-post facto approval/permission Signature Not Verified Digitally signed By:KAMLESH KUMAR Signing Date:11.11.2020 17:40:01 or to regularize constructions already made.The relevant portion of the order dated 16.10.2020 reads as under:
"....
7. The petitioners' application for grant of NOC was rejected by respondent no. 2 without hearing them, simply because the petitioners had started the construction of the building. Surely, this cannot be a reason for rejection of the application, if in substance the petitioners have a right to construct the property upto a certain height. It is also not the case that the petitioner did not have a sanctioned building plan. The Municipal Corporation is deemed to have considered all aspects when it sanctioned the building plan and also of the need to take permission from other authorities in such regulated areas. The petitioners cannot be found wanting in their action. However, for the issue of regulation of the height of the building R-2 would need to take a decision.
....."
2. The order clearly notes that the petitioners' application was dismissed without their being heard, which is a clear denial of natural justice. Therefore, such a dismissal would be non est in law. That being the position, the Court had directed the NMA to reconsider the issue apropos the height of the building in question. It appears that the NMA wishes to insist upon its own order which ex facie is wrong in law. It has not complied with the order within the time span given to it.
3. The learned counsel for the petitioners/non-applicant, who appears on service of advance copy, refers to the applicant's own documents, i.e. Annexure R-2/2, which is advice given by the Ministry of Law and Justice, Government of India, apropos building construction having Signature Not Verified Digitally signed By:KAMLESH KUMAR Signing Date:11.11.2020 17:40:01 been started by a party prior to making an application for NOC from the NMA. The said document reads, inter alia, as under:
"....
So far as providing of NOC is concerned in such cases, fresh application, if any may be processed as per the provisions of the AMASR Act read with the provisions of the Ancient Monuments And Archaeological Sites and Remains (Framing of Heritage Bye-Laws and Other Functions of the Competent Authority) Rules,2011 and decision thereon may be taken as per Rules.
..... "
4. That being the position, the applicant knew fully that even where construction may have already started or even completed, a subsequent application seeking a NOC would have to be considered on its merits. The objective of the AMASR Act is that the height of the buildings in the regulated area would have to be maintained in terms of permissible limits.
5. Since the timeline given by the Court has expired, the applicant/NMA shall hear the petitioners on 25.11.2020 in terms of the previous order, and the decision of the NMA shall be communicated to the petitioners on or before 14.12.2020.
6. The application stands disposed-off in terms of the above. W.P.(C) 13145/2019 & CM APPL. 53541/2019
7. List on 14.12.2020 i.e. the date already fixed.
8. The order be uploaded on the website forthwith.
NAJMI WAZIRI, J NOVEMBER10, 2020/AB Signature Not Verified Digitally signed By:KAMLESH KUMAR Signing Date:11.11.2020 17:40:01