Delhi District Court
Trans Asian Industries Expositions ... vs Sdmc And Ors on 3 February, 2025
IN THE COURT OF MS. MADHU JAIN
PRINCIPAL DISTRICT & SESSIONS JUDGE
SOUTH DISTRICT, SAKET COURTS : NEW DELHI
MCD APPL-7/2022
CNR-DLST01-007233-2022
TRANS ASIAN INDUSTRIES
EXPOSITIONS PVT. LTD.
THROUGH ITS DIRECTOR MOHD. HANIF MIR
HAVING ITS OFFICE AT :
M-1, FIRST FLOOR, HAUZ KHAS,
NEW DELHI
.....APPELLANT
VERSUS
1. SOUTH DELHI MUNICIPAL CORPORATION
THROUGH ITS COMMISSIONER
1ST FLOOR, CIVIL CENTER
MINTO ROAD, NEW DELHI.
2. SOUTH DELHI MUNICIPAL CORPORATION
THROUGH ASSISTANT ENGINEER (BLDG.)
SOUTH ZONE, GREEN PARK, NEW DELHI.
3. G.S. BERAR & CO. PVT. LTD.
THROUGH ITS DIRECTORS
HAVING ITS OFFICE AT :
M-1, HAUZ KHAS, NEW DELHI
4. SONI DAVE
W/O ADITYA DAVE
R/O M-1, HAUZ KHAS,
NEW DELHI
Digitally signed
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Date:
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Trans Asian Industries Expositions Pvt. Ltd. Vs. SDMC & Ors. Page 1 of 20
5. ADITYA DAVE
S/O LATE P.S. DAVE
R/O M-1, HAUZ KHAS,
NEW DELHI
.....RESPONDENT
Date of Institution : 25.08.2022
Date of Arguments : 11.12.2024
Date of Judgment : 03.02.2025
APPEAL UNDER SECTION 347-D OF THE DELHI
MUNICIPAL CORPORATION ACT, 1957 AGAINST
THE IMPUGNED ORDER DATED 22.07.2022
PASSED BY LEARNED APPELLATE TRIBUNAL
MCD IN APPEAL NO.420/ATMCD/2021.
JUDGMENT
1. Vide this appeal filed under Section 347D of the Delhi Municipal Corporation Act, 1957 ("DMC Act" in short), appellant Trans Asian Industries Expositions Pvt. Ltd. has challenged the order of learned Appellate Tribunal Municipal Corporation of Delhi ("ATMCD" in short) dated 22.07.2022 ("impugned order" in short). Vide impugned order, the appeal filed by the appellant against the demolition order dated 12.10.2021 passed by AE (B), South Zone, SDMC in respect of property No.M-1, Hauz Khas, New Delhi (hereinafter referred to as the "suit property"), has been dismissed by learned ATMCD.
2. The brief history of the case is that the appellant is owner of a dwelling unit B situated on the first floor of M-1, Hauz Khas, New Digitally signed madhu by madhu jain Date:
jain 2025.02.04 16:21:29 MCD APPL-7/2022 +0530 Trans Asian Industries Expositions Pvt. Ltd. Vs. SDMC & Ors. Page 2 of 20 Delhi admeasuring about 1248 Sq. ft. having easement rights and access to all the common areas of plot of land, staircase, water tank, terrace, lawn etc. in connection with the said property by virtue of Sale Deed dated 10.02.2025 and 29.09.1992. The suit property is comprised of nine individual apartments and one basement. There are four apartments on the Ground Floor, four apartments on first floor and one apartment on the Barsati floor which are owned by different persons. One flat on Barsati Floor is owned and occupied by respondents no.3 and 4 herein.
3. The appellant filed a suit bearing CS DJ No.113/2017 titled as Trans Asian Industries Expositions Pvt. Ltd. Vs. Aditya Dave and Ors. wherein the relief of removal of all unauthorized and illegal construction from the terrace / roof of the building of the suit property is sought on the ground that same being a common area be kept open for the use of all of the occupants of the suit property and to open the common entry door of the terrace which has been illegally blocked for other occupants. Besides this relief, the prayer to remove illegal fence from the common front lawn constructed by respondents no.3 and 4 on the ground floor of the suit property is also made. The suit is pending adjudication before the court of learned ADJ, South, Saket wherein vide order dated 14.08.2020, learned ADJ allowed the application under Order 1 Rule 10 CPC filed by the appellant to implead SDMC as a party to the suit and directed them to file written statement. In this suit, vide their written statement respondents no.4 and 5 herein have stated that sanctioned madhu Digitally signed by madhu jain Date: 2025.02.04 jain 16:21:34 +0530 MCD APPL-7/2022 Trans Asian Industries Expositions Pvt. Ltd. Vs. SDMC & Ors. Page 3 of 20 building plan bearing file No.243/B/HQ/82 dated 21.04.1982 was obtained by erstwhile owner of the suit property for construction of Basement, Ground Floor, First Floor and Barsati Floor and SDMC booked the Barsati floor vide file No.49/UC/B-1/SZ/2021 dated 15.03.2021 for unauthorized construction due to excess coverage / deviation, however no action till date has been taken by SDMC.
4. The appellant stated that SDMC concealed various facts from the court in said Civil Suit and deliberately in connivance with respondents no.3 to 5 did not place on record the completion certificate, building plan and sealing and de-sealing orders with respect to suit property and wrongly averred that the fence in front lawn of the suit property is not objectionable. Respondents no.3 to 5 illegally constructed room in front of exit door to the terrace of suit property and made other constructions on the common areas and same is carried out without obtaining the permission from Municipal Authority. Since respondents no.3 to 5 failed to remove illegal constructions, the appellant moved an application under Section 151 CPC on 15.03.2021 in civil proceedings seeking directions against SDMC for demolishing the illegal constructions being carried out by respondents no.3 to 5 in the suit property. However, SDMC failed to file any reply to the same and respondents no.3 to 5 took advantage of the same and made illegal constructions / modifications / deviations in the suit property thereby hampering the structure of the building which is already fragile. Consequently, the appellant filed an application under Section 151 CPC dated 29.09.2021 alongwith Digitally signed madhu by madhu jain Date:
jain 2025.02.04 16:21:40 MCD APPL-7/2022 +0530 Trans Asian Industries Expositions Pvt. Ltd. Vs. SDMC & Ors. Page 4 of 20 photographs taken on 27.09.2021 seeking directions from court to restrain the respondents no.3 to 5 from making illegal constructions and to direct respondents no.1 and 2 to demolish the illegal constructions being carried out by respondents no.3 to 5 on Ground Floor of suit property and to file status report. The appellant further sought directions to SDMC to file sanctioned building plan, completion certificate and sealing and de-sealing orders in respect of suit property. This application was duly replied to by SDMC on 15.10.2021. On the same day, the appellant came to know about the order dated 12.10.2021 passed by respondent no.2 wherein despite noting the deviations / unauthorized constructions, respondent no.1/ SDMC did not take any action and respondents no.3 to 5 continued with their illegal acts and completed unauthorized construction, modifications and deviations in the suit property and despite the fact that the suit property was sealed in the year 1985 and 1995 by SDMC and even demolition order was also passed and thereafter, no permission to de-seal the suit property was ever obtained by respondents no.3 to 5, which is being duly confirmed vide order dated 12.10.2021 passed by respondent no.2.
5. The appellant has also stated that order dated 12.10.2021 also records that the entire construction in the suit property is beyond sanctioned plan and is liable for action and for the reasons recorded therein, status quo be maintained. However, respondents no.3 to 5 did not maintain status quo which is evident from the photographs filed by appellant with SDMC but SDMC did not take any action as Digitally signed madhu by madhu jain Date:
jain 2025.02.04 16:21:45 MCD APPL-7/2022 +0530 Trans Asian Industries Expositions Pvt. Ltd. Vs. SDMC & Ors. Page 5 of 20 per law. Further, respondents no.3 to 5 raised new unauthorized deviations and construction which were clearly ignored by SDMC. The appellant in continuation of his earlier complaint filed another complaint on 04.10.2021 with respondent no.1 / SDMC and Deputy Commissioner SDMC for illegal construction being carried out at suit property however, no action was taken by respondents no.1 and 2 against respondents no.3 to 5 which has caused great threat to the safety of other co-owners of flats in the building. Aggrieved by the order dated 12.10.2021, the appellant filed an appeal before learned ATMCD seeking directions to respondents no.1 and 2 to demolish the new unauthorized deviations and constructions being carried out by respondents no.3 to 5 on basement, ground floor, first floor , second floor and barsati floor and common area of suit property despite the order of maintaining status quo and to seal the ground floor and basement floor of suit property as no de-sealing orders or permission is granted by respondent no.1/SDMC despite the respondents no.3 to 5 unilaterally and illegally got de-sealed the said premises by themselves and are running business and earning profits.
Upon filing of the appeal, learned ATMCD called for status report from respondents no.1 and 2 and issued notice to respondents no.3 to
5. After considering the submissions made on behalf of the appellant as well as respondents and after hearing both the sides and going through the material placed on record, learned ATMCD vide order dated 22.07.2022 dismissed the appeal filed by the appellant observing that no such power is vested with the tribunal under Sections 343 of DMC Act to give any directions to MCD to carry out Digitally signed madhu by madhu jain Date:
jain 2025.02.04 MCD APPL-7/2022 16:21:50 +0530 Trans Asian Industries Expositions Pvt. Ltd. Vs. SDMC & Ors. Page 6 of 20 demolition or sealing of the property. Aggrieved of the order dated 22.07.2022 passed by learned ATMCD, the appellant has preferred the present appeal.
6. The impugned order has been assailed by the appellant on the grounds that :
a) learned ATMCD has erred in dismissing the appeal filed before it on the ground of maintainability and passed the impugned order by wrongly opined that the appellant did not challenge the protection granted by the Quasi Judicial Authority in the said appeal and only sought directions to be given to respondent no.1 / SDMC for demolishing the new unauthorized constructions carried out by respondents no.3 to 5 in violation of status quo ;
b) learned ATMCD has failed to appreciate the fact that SDMC despite passing demolition order dated 12.10.2021 under Section 343 DMC Act gave wrongful benefit to respondents no.3 to 5 of National Capital Territory of Delhi Laws (Special Provisions) Second Amendment Act and kept in abeyance the demolition order till 31.12.2023 and appellant vide his appeal challenged the same ;
c) learned ATMCD has also failed to consider that despite the order of respondent no.1, respondents no.3 to 5 failed to maintain status quo in the suit property ;
d) learned ATMCD has also failed to appreciate that the order dated 12.10.2021 passed by respondent no.2 clearly mentioned that the unauthorized construction booked by the department vide File No.49/UC/B-1/SZ/2021 dated 15.03.2021 is liable to the demolition Digitally signed madhu byDate:madhu jain MCD APPL-7/2022 jain 2025.02.04 16:21:55 +0530 Trans Asian Industries Expositions Pvt. Ltd. Vs. SDMC & Ors. Page 7 of 20 action under the DMC Act ;
e) learned ATMCD has also failed to consider that SDMC itself has observed that there is no document on record of SDMC to indicate authorized status of construction existing at site beyond sanctioned building plan, which has also not been regularized by the applicant/owners/occupiers as per SDMC record which clearly shows that order dated 12.10.2021 challenged by the appellant before learned ATMCD is maintainable as SDMC was not taking appropriate action against the suit property even after passing the demolition orders under Section 343 (1) DMC Act and has wrongfully given abeyance ;
f) learned ATMCD has failed to note that there was neither any objection being raised by SDMC on the point of maintainability nor any reply was filed in this regard and learned ATMCD wrongly recorded the submissions of proxy counsel of SDMC which was not even raised ;
g) learned ATMCD has erred in passing the impugned order by ignoring the vital aspect that it is not the case of SDMC that no demolition order is passed against the owners / occupiers in respect of suit property ;
h) learned ATMCD has failed to consider that SDMC vide its status report filed on 09.03.2022 and as directed vide order dated 24.01.2022 has not even filed any document showing notice for inspection being issued to the owners / occupiers and further, no inspection report of the basement and ground floor of the suit property allegedly inspected by the area field staff is filed ;
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i) learned ATMCD has failed to take into consideration the written submissions filed on 14.07.2022 by the appellant on the issue of maintainability which is detail explain the reasons as to why the said appeal is maintainable and wrong benefit of special act is given in the demolition order dated 12.10.2021 by SDMC to respondents no.3 to 5 ;
j) learned ATMCD has failed to appreciate that previously also, the suit property was booked by SDMC in the year 1985 and 1995 owing to deviations / infringement and excess coverage against sanctioned building plans and demolition orders already passed by SDMC still stands which find mentions in order dated 12.10.2021 ;
k) learned ATMCD has failed to take into account that the record filed by SDMC on 17.12.2021 clearly shows that even the show cause notices were issued for initiating actions under Section 343 and 344 of DMC Act to the owners / occupiers of suit property and pursuant to opportunity of hearing being given to them, the order dated 12.10.2021 was passed by SDMC as to existence of unauthorised construction and the same is liable for demolition under DMC Act only the punitive demolition action per se is kept in abeyance upto 31.12.2023 under The National Capital Territory of Delhi Laws (Special Provisions) Act / Ordinance.
l) learned ATMCD while passing the impugned order wrongly relied upon the judgment of Hon'ble High Court tilted as Senjil Gupta & Ors. Vs. NDMC, Manu/DE/0239/2019 and Shri Shanmugananda Welfare Association Vs. SDMC, MCD Appeal No.11/2017 decided on 26.09.2020, which are not related to the issue Digitally signed by madhu madhu jain Date:
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of the case in hand ;
m) learned ATMCD cannot ignore the fact that appellant being
aggrieved person in terms of Section 343 (2) of DMC Act cannot be left remediless despite admitted wrongful / unauthorized constructions carried out by respondents no.3 to 5 at the suit property.
7. The appeal is duly contested by the respondents.
8. Learned counsel for the appellant has vehemently argued that it is not the case of SDMC that no demolition order is passed against the owners / occupiers in respect of suit property. The only exception is being given to the owners / occupiers upto 31.12.2023 by SDMC which is erroneous as the same could have been given subject to they maintain status quo but here in this case, respondents no.3 to 5 did not maintain any status quo and SDMC deliberately and for ulterior motives ignored the unauthorized construction / structural changes and / or alterations or repairs being carried out by the owners / occupiers in the ground floor and the basement of suit property. It has been argued that a complaint dated 04.10.2021 was also filed by the appellant with SDMC alongwith photographs to show that no status quo has been maintained by the owners but SDMC vide its status report filed on 09.03.2022 failed to file any document showing notice for inspection being issued to the owners and erroneously came to observation that the alleged repair / renovation work is permissible under bye-laws no.2.01(d) for which no permission is Digitally signed madhu by madhu jain Date:
jain 2025.02.04 16:22:10 MCD APPL-7/2022 +0530 Trans Asian Industries Expositions Pvt. Ltd. Vs. SDMC & Ors. Page 10 of 20 required. Learned counsel has argued that no sanction is applied by owners / occupiers under Section 334 DMC Act and no sanction is being granted by Commissioner in terms of Section 336 DMC Act for carrying such additions, repairs in the said property and hence, they are prohibited to execute any work as per Section 334 DMC Act except with the previous sanction of the Commissioners as provided under Section 332 of DMC Act. Therefore, the impugned order passed by learned ATMCD be set aside and appeal be allowed. In support of his submissions, learned counsel has placed reliance upon the judgment of Hon'be High Court in Meena Sharma Vs. Seema & Ors., MANU/DE/4098/2019 and ANZ Grindlays Bank Pie & Ors. Vs. The Commissioner, MCD & Ors., MANU/DE/0789/1995.
9. Per contra, learned counsel for MCD has argued that the present appeal is legally not maintainable and learned ATMCD has passed a well reasoned and speaking order based upon the relevant law and facts on record and thus, there is no reason to interfere in the same. It has been stated that learned ATMCD has rightly observed that the appellant has not challenged the protection granted by the Quasi Judicial Authority vide order dated 12.10.2021 and has only sought directions to the respondent / MCD for demolishing the new unauthorized deviations / construction carried out by respondents no.3 to 5 in violation of the status quo order. Learned counsel emphasized that learned ATMCD vide impugned order has correctly observed that the appellant could file an appeal under section 343(2) of DMC Act, if he is aggrieved by any order passed under Section Digitally signed madhu by madhu jain Date:
jain 2025.02.04 16:22:15 +0530 MCD APPL-7/2022 Trans Asian Industries Expositions Pvt. Ltd. Vs. SDMC & Ors. Page 11 of 20 343(1) of DMC Act and in the present case, the appellant has not assailed the impugned order dated 12.10.2021 passed under Section 343(1) of DMC Act, whereby protection has been granted to the suit property under the National Capital Territory of Delhi Laws (Special Provisions) Second Act. It has been argued that the appellant has failed to make out any ground whatsoever or the question of law, as to how the aforesaid observations and finding of learned ATMCD are contrary to the law or that there are any legal flaws, defects or infirmity in the same. It has also been argued that MCD is only a law enforcing agency and so far as the protection under the said Act is concerned, the same does not come within the purview and authority of MCD and instead by Government, hence, the allegations so made by the appellant against the MCD are baseless, frivolous and malafide. In such circumstances, the appeal is liable to be dismissed.
10. Learned counsel for respondents no.3 to 5 has argued that the jurisdiction of learned ATMCD is very limited and meant for public from protection of arbitrary and discriminatory action of demolition and sealing by the MCD. It has been stated that law has provided remedy of appeal before Appellate Tribunal MCD to aggrieved person against action taken or proposed to be taken with regard to the sealing or demolition. Learned counsel argued that a conjoint reading of section 343 and section 347B of DMC Act would indicate that an appeal can only lie against an order of demolition and stoppage of buildings and works and the grounds mentioned in Section 347B of DMC Act. It has been stated that learned ATMCD Digitally signed madhu by madhu jain Date:
jain 2025.02.04 MCD APPL-7/2022 16:22:20 +0530 Trans Asian Industries Expositions Pvt. Ltd. Vs. SDMC & Ors. Page 12 of 20 has rightly dismissed the appeal filed by the appellant being not maintainable giving detail reasons but the appellant instead of addressing arguments on the shot question of law / maintainability is unnecessarily dragging the appeal by making lengthy and totally extraneous & irrelevant arguments. Learned counsel has argued that appellant is indulged in practice of forum shopping as a Civil Suit being CS No.113/2017 on the similar issue is already pending adjudication in the court of learned ADJ, Saket in which SDMC is also one of the party and suit has been filed by appellant in respect of terrace and front lawn by allegedly claiming them to be common area however, subsequently under the garb of said suit, the appellant being plaintiff therein sought demolition of old existing barsati floor on the terrace which is even assessed for house tax ever since 224 sq. mtrs. Not even an inch of additional area is added thereafter at any point of time. It has been argued that SDMC duly issued notice to respondents no.3 to 5 but after carrying out inspection of suit property, they found no construction going on yet booked old existing construction of the second / barsati floor as per previous notices issued in 1985 & 1995 and subsequently, after considering the representation of the respondents and perusing SDMC's own records, SDMC found the construction on second / barsati floor to be old and existing since 2004 (prior to 2007) and there is no variation in the status. MCD also found no construction going on on ground floor and hence issued report and filed the same in the court of learned ADJ. Accordingly, SDMC confirmed the status of second floor being old constructed prior to 2007 and held that "Keeping in madhu Digitally signed by madhu jain Date: 2025.02.04 jain 16:22:24 +0530 MCD APPL-7/2022 Trans Asian Industries Expositions Pvt. Ltd. Vs. SDMC & Ors. Page 13 of 20 view the documentary evidence available on record, the punitive demolition action is kept in abeyance upto 31.12.2023 under The National Capital Territory of Delhi Laws (Special Provisions) Act / Ordinance." It has been stated that since the appellant was not satisfied with the report filed by SDMC, he filed an appeal under Section 343(3) of DMC Act before learned ATMCD only in order to harass the respondents due to personal vendetta and vengeance. Learned counsel for respondents no.3 to 5 vehemently argued that learned ATMCD has rightly dismissed the appeal on the point of maintainability as there is no demolition or sealing order which could or could have been appealed and even no notice or order of demolition or sealing has been issued to the appellant, which are mandatory conditions for filing an appeal before learned ATMCD. It has been stated that even the present appeal before this court is also not maintainable as Section 347D clearly stipulated that an appeal shall lie to the Administrator only 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 issued under this Act, which is not the case. Since, learned ATMCD has simply dismissed the appeal on the ground of maintainability and has neither confirmed or modified nor annulled any order of MCD / Commissioner, therefore, the present appeal is also not maintainable before this court and thus, the same is liable to be dismissed. In support of his submissions learned counsel for respondents has placed reliance upon the following judgments :
a) Shiv Kumar Chadha Vs. MCD, 1993 (3) SCC
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b) Jayshree Oza Vs. Rakesh Mohan, 1998 (4) AD (Delhi) 770
c) ANZ Grindlays Bank PLC Vs. Commissioner, MCD, 1995
(2) AD (Delhi) 153
d) Senjil Gupta Vs. NDMC, 2019 (2) AD (Delhi) 153
e) Davindra Mahey Vs. Commissioner, SDMC, 2021
Lawpack (Del) 84384
f) Hardyal Singh Mehta Vs. MCD, 1990 AIR (Del.) 170
11. I have heard learned counsel the appellant as well as learned counsels for the respondents and have perused the record of learned ATMCD and record of present appeal. I have also gone through the documents placed on record by the parties and judgments relied upon by both the sides.
12. Before proceeding further, it would be appropriate to mention section 347 (D) of DMC Act, which reads as under :
"347-D. 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 347-B, confirming, modifying or annulling an order made or notice issued under this Act.
(2) The provisions of sub-sections (2) and (3) of Section 347-B and Section 347-C 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 347-B, and subject to such orders of the Digitally signed madhu byDate:madhu jain MCD APPL-7/2022 jain 2025.02.04 16:22:36 +0530 Trans Asian Industries Expositions Pvt. Ltd. Vs. SDMC & Ors. Page 15 of 20 Administrator or an Appellate Tribunal, an order or notice referred to in sub-section (1) of that section, shall be final.
13. Thus, under Section 347D, an appeal against an order of Appellate Tribunal shall lie only if the Appellate Tribunal has confirmed, modified or annulled an order made under Section 343 or 347B of the DMC Act.
14. Before going into the merits of the case, I consider that it is necessary to examine whether the present appeal is maintainable in the present form.
15. In the present case, the grievance of the appellant is that learned ATMCD wrongly dismissed his appeal on the grounds of maintainability, claiming that he has not challenged the protection granted to the respondents and only sought demolition orders. The appellant has contended that SDMC intentionally delayed enforcing a valid demolition order dated 12.10.2021 and improperly applied special provisions to protect the unauthorized constructions by the respondents no.3 to 5 and despite knowing and acknowledging that the constructions were unauthorized, SDMC did not take appropriate action and learned ATMCD while passing the impugned order dated 22.07.2022 failed to consider these essential facts, including past demolition orders, failure to enforce the status quo and the lack of proper documentation from SDMC.
16. Section 343 of DMC Act makes a provision of passing an madhu Digitally signed by madhu jain Date: 2025.02.04 MCD APPL-7/2022 jain 16:22:42 +0530 Trans Asian Industries Expositions Pvt. Ltd. Vs. SDMC & Ors. Page 16 of 20 order of demolition and stoppage of buildings and works in certain cases and appeal. Section 343(2) of DMC Act provides that against order of demolition and stoppage of buildings and works passed by Commissioner, the parties may prefer an appeal to the Appellate Tribunal and Appellate Tribunal has been conferred powers under section 343(3) of DMC Act to stay the enforcement of any such order.
17. Perusal of the impugned order shows that learned ATMCD while dismissing the appeal has specifically discussed the provision under Section 343(1) under which an appeal can be filed challenging the demolition order and observed that appellant has not challenged the order dated 12.10.2021 whereby protection has been granted to the suit property under the National Capital Territory of Delhi Laws (Special Provisions) Second Act. Perusal of the record also shows that the appellant by way of appeal before learned ATMCD has sought directions from the court to respondents no.1 and 2 to carry out demolition of unauthorized constructions / deviations / alterations carried out by respondents no.3 to 5 herein, in violation of status quo order dated 12.10.2021 which cannot be given under Section 343 of DMC Act.
18. In view of the above provisions of law, any grievance regarding the order dated 12.10.2021, which granted protection to the suit property under the National Capital Territory of Delhi Laws (Special Provisions) Second Act, has to be addressed within the framework established by the MCD and not by the learned ATMCD.
Digitally signedmadhu byDate:madhu jain MCD APPL-7/2022 jain 2025.02.04 16:22:47 +0530 Trans Asian Industries Expositions Pvt. Ltd. Vs. SDMC & Ors. Page 17 of 20 The appellant's failure to challenge this specific order, which was passed under Section 343(1) of the DMC Act, indicates that the proper remedy for contesting the protection granted by the order lies within the jurisdiction of the MCD, rather than before the tribunal. The observations of learned ATMCD that the appellant could have filed an appeal under Section 343(2) of the DMC Act if aggrieved by the 12.10.2021 order are in consistent with the established legal procedure. Therefore, the learned ATMCD correctly refrained from intervening in this matter, as the protection granted by the order is a matter for the MCD to enforce, not for the tribunal to review.
19. Further, this court is also of the opinion that learned ATMCD has rightly passed the order dismissing the appellant's appeal, as it falls within the scope of its limited jurisdiction, which is specifically designed to protect the public from arbitrary or discriminatory actions by the MCD regarding demolition and sealing. The provisions of the DMC Act, particularly Sections 343 and 347B, outline the limited grounds on which an appeal can be made, specifically regarding demolition orders or stoppage of construction. Since the appellant's case does not involve a direct challenge to an order of demolition or sealing, the appeal was rightly deemed not maintainable by learned ATMCD.
20. Even otherwise, it has also come on record that a similar matter is pending adjudication in the form of the civil suit (CS No. 113/2017) before learned ADJ, Saket, which also supports the fact that the appeal before the learned ATMCD is not maintainable. The madhu Digitally signed by madhu jain MCD APPL-7/2022 Date: 2025.02.04 jain 16:22:52 +0530 Trans Asian Industries Expositions Pvt. Ltd. Vs. SDMC & Ors. Page 18 of 20 appellant has already sought relief regarding the similar issues in the civil suit, which includes the claims regarding the terrace, front lawn, and the construction of the barsati floor. In this regard, the arguments advanced by respondents no.3 to 5 bear force that the appellant is indulged in practice of forum shopping as he has attempted to address the same issues in both the civil suit and the appeal before learned ATMCD.
21. In view of the above findings, neither the learned ATMCD nor this Court can exercise the power of intervention, if even after passing of the orders by MCD, the respondents continued with their unauthorized construction and did not abide by the orders of the MCD. Therefore, it is for the MCD to take appropriate action. Even learned ATMCD has also correctly observed that if any unauthorized construction has been carried out by respondents no.3 to 5 and that they have violated the status quo order, it is for the MCD to take action in accordance with the law. Only after such action is taken, then an aggrieved party can prefer an appeal against that order. Thus, the learned ATMCD has rightly held that it cannot pass any directions to respondents no.1 and 2 to take action for the demolition of unauthorized constructions or to seal portions of respondents no.3 to 5. Since the appellant is aggrieved by the order of the learned ATMCD, this appellate court also cannot issue any such directions.
22. In view of the above discussions, this court finds no ground to interfere with the conclusion, decision and observations made by Digitally signed madhu by madhu jain Date:
jain 2025.02.04 16:22:57 +0530 MCD APPL-7/2022 Trans Asian Industries Expositions Pvt. Ltd. Vs. SDMC & Ors. Page 19 of 20 learned ATMCD vide impugned order dated 22.07.2022. Accordingly, the appeal is dismissed.
23. A copy of judgment alongwith trial court record be sent back to learned ATMCD.
24. Appeal file be consigned to Record room.
Digitally signed by madhu madhu Date:
jain jain 2025.02.04 16:23:10 +0530 Announced in open Court today i.e. 03.02.2025 (MADHU JAIN) Principal District & Sessions Judge South District, Saket, New Delhi.
MCD APPL-7/2022 Trans Asian Industries Expositions Pvt. Ltd. Vs. SDMC & Ors. Page 20 of 20 Digitally signed and uploaded on 04.02.2025