Delhi High Court
Ahuja Property Developers (P) Ltd. vs Municipal Corporation Of Delhi on 17 May, 1990
Equivalent citations: 42(1990)DLT474
Author: B.N. Kirpal
Bench: B.N. Kirpal
JUDGMENT B.N. Kripal, J.
(1) Rule D.B. (2) The petitioner, who has admittedly violated the Building Bye Laws and has constructed a building and completed the same not in accordance with the sanctioned building plans is complaining about the illegality alleged to have been committed by the respondent corporation who is seeking to seal portion of the premises which have been constructed.
(3) Briefly stated the facts are that the petitioner purchased a building E-7, Kailash Colony, New Delhi. This is a residential Colony. The petitioners filed plans for reconstructing on that plot of land. The plans were approved by Corporation and thereafter building was constructed.
(4) According to the Corporation Bye Laws after a building is completed the Builder is required to submit completion drawings. The completion drawing are required to indicate the building which actually existed after construction. This is for the reason that there might be some deviation in constructing the building from the sanctioned plans which may have been approved. Prior to construction commenced after the completion drawings are furnished the building is required to be inspected and an occupation or a completion certificate issued.
(5) In the present case completion drawings were furnished which inter alia showed a full basement hall for domestic storage, residential flats on the ground floor and the first & a barsati floor. The petitioner obtained a completion certificate dated 28.7.1989 which indicated the particulars of construction.
(6) The petitioner thereafter received a notice dated 19.1.89 in which it was inter alia stated that the petitioner had constructed partition wall in basement and had made additional coverage at basement floor and ground floor with additions/alterations of partition walls on ground floor as shown in the sketch attached to the said notice.
(7) The petitioner, by this show cause notice, was required to explain as to why the illegal portion which had been constructed should not be remover. The petitioner then filed the writ petition for restraining the respondents from sealing or causing any interference in the enjoyment of the said property. It was alleged that all the irregularities had been compounded by charging compounding fees and neverthless the respondents had come to the premises with a view to seal the same.
(8) After notice to show cause was issued we also directed appointment of a local commissioner to visit the premises in question and give report as to the state of the building. Thereafter no fee was paid to the local commissioner with the result that the commission was not executed. The writ petition was amended and it was admitted in the amended writ petition that the building as constructed was not in accordance with the completion drawing. Nevertheless the challenge in this writ petition is to the provisions of section 345-A of the Municipal Corporation Act which inter alia permits the Corporation to seal the premises under certain circumstances.
(9) The respondents have filed an affidavit in response to the show cause notice in which it is inter alia stated that the building is constructed in a residential colony and can be used only for residential purpose. A residential building plan had been sanctioned and according to the respondent after the petitioner had obtained occupancy certificate large scale addition and alterations have taken place. The petitioner is alleged to have removed the walls of all the rooms shown in the completion report and has erected new partition walls to make shops, on all the floor and in fact there is additional, construction on the Barsati Floor as well. The respondent have also placed on record the report of the local commissioner pertaining to the building in question filed in C.W. 346/1990. As per the report of Shri Manoj Wad, Advocate dated 20.4.1990. The basement of this Building consists of 15 flats, all of them single room flats with no kitchen or toilet attached to them all the flats have transparent glass doors, big enough to form almost entirely the fourth wall of the flat. Only two of the flats are occupied while one of them was in actual use. The report further states that the ground floor consists of 15 single one room flats with big glass doors. Fourteen of these flats are unoccupied while in the fifteen some electrical goods are stored. It is further stated that the first floor consists of seven single rooms flats with similar big glass doors but four flats on the left of the staircase were described as having little store rooms attached to them. Two of the flats were stated to be occupied. The second and the top floor also consist of 8 flats similar to those on the floors below, except that each of the single rooms flats have a toilet attached to them. According to the report all these 8 flats were un-occupied. The local commissioner, Shri Wad, further stated in his report that none of the flats in the building could be used for residential purposes and that the glass door aid V having as in show rooms and show window. There is also lack of kitchen or kitchen facilities in the flats except the two offices. According to the local commissioner, the building could be used only for commercial purposes.
(10) It is contended by Shri Datar before us that the provisions of 345A are ultravires. He submits that the said provision give arbitrary power to the Municipal Authorities to seal any building. It is alleged that Articles 14 and 21 of the Constitution are violated.
(11) Section 345A reads as under "345APower to seal Unauthorised Construction" 1. It shall be lawful for the commissioner at any time before or after making an order of demolition under section 343 of the stoppage of the erection of any building or execution of any work under section 343, or under section 344, to make an order directing the sealing of such erection or work of the premises in which such erection of work is being carried on or has been completed in the manner prescribed by rules, for the purpose of carrying out the provision of this Act or for preventing any dispute as to the nature and extent of such erection of work. 2. Where any erection of work of any premises in which any erection or work is being carried on has or have been sealed, the commissioner may for the purpose of demolition of such erection or work in accordance with the provisions of this Act, order such seal to be removed. 3. No person shall remove such seal except : a. Under an order made by the Commissioner under Sub Section (2), or b. Under an order of an appellate Tribunal or the Administrator made in an appeal under this Act.
(12) Section 343 provides for orders being passed for demolition of stoppage of building and works inter alia on the ground that they have been completed without or contrary to the sanctioned plan. Section 344 provided for an order being passed stopping the construction of a building or works in certain circumstances. Section 345A, makes a reference to section 343 and section 344 in inter alia provides that action under 345A can be taken for sealing any building before or after making an order of demolition under section 343 or passing an order under section 344. It is clear, therefore, that the action under section 345A can be taken only if the authorities are satisfied that the condition as mentioned under section 343 & 344 exist. It is true that under section 345A, there is no provision for any show cause notice being given before any action is taken by the authorities under that provision. In as much as the sealing of a property may of act civil right we would read into section 345A, the principles of normal Justice which would required a show cause notice being issued, for however small duration it may be before any action u/s 345A is taken, the respondent should issue a show cause notice and given an opportunity to the builder to explain as to why the property should not be sealed. Though the said notice may be of a short duration. Be that as it may we cannot appreciate the contention of the learned counsel for the petitioner that section 345A contains arbitrary powers. As we have already observed the said provision is attracted when an order under section 343 or 344 can be made. The order which is to be passed under section 345A, is by way of an interim arrangement so that further mischief or damage cannot be done. It is to prevent the use of the building which has been constructed in violation of the law.
(13) It has also been submitted in the writ petition that the building bye laws restricting the use of the building in a particular manner is bad in law. According to the Learned counsel no building by laws can provide as to who the petition walls can be erected or not and it should be left to the owner to sub- divide a room in any manner he likes, as long as it more than the minimises prescribed by laws. We are unable to agree after this contention. The submission of the building plans has some reason there are various bye laws pertaining to the sanitation and light which are relevant and when a plan is submitted, the applicant is required to indicate where the partition walls are going to be built. The approval is granted to the plan as submitted thereafter. If any change is required it is open to the applicant to apply to the corporation for alteration. But he cannot make structural, alteration without the approval of the Corporation. We see nothing wrong in providing such bye laws. The same are in public interest and conducive to the planned development of a city.
(14) Before concluding, we would like to observe that the respondent Corporation should take a final decision with regard to the section 343 after taking into consideration the petitioners request for Compounding within a reasonable time and after hearing the petitioner. As we have already mentioned that the petitioner had admittedly constructed a building not only at variance with the sanctioned plan but also at variance with the completion certificate and the completion drawings.
(15) The petitioner has admittedly violated the law and he cannot now be permitted to cry wolf. We see absolutely no merit in the petition. The same is dismissed.