Delhi District Court
Mohd. Ali vs Municipal Corporation Of Delhi on 8 March, 2016
IN THE COURT OF SH. YOGESH KHANNA
DISTRICT & SESSIONS JUDGE (NORTHWEST)
ROOM NO. 401, ROHINI COURTS, DELHI
MCD APPEAL NO. 01/11
1. Mohd. Ali
2. Munawar Ali
3. Javed Ali
4. Imran Ali
All sons of Dr. S.M. Asgar Ali
r/o 9824A, Ahata Thakur Dass
Sarai Rohilla, New
Delhi ........Appellant
5. Smt. Rehana Parveen
w/o Sh. Hashmuddin
r/o A10/79, DDA Flats
Inderlok, Delhi.
Vs.
Municipal Corporation of Delhi
Dr. Shyama Parshad Mukherjee Civic Centre
Minto Road, New Delhi
Through its Commissioner ..........Respondent
MCD Appeal No. 01/11 Page 1 of 11
Date of institution : 03.11.2014
Date of clarifications : 27.02.2016
Date of Judgment : 08.03.2016
JUDGMENT
1) This Judgment shall govern the disposal of an appeal filed by the appellants u/s 347 of the DMC Act against the Judgment dated 17.10.2011 passed by Sh. Ashwani Sarpal, learned Additional District & Sessions Judge cum Presiding Officer, Appellate Tribunal, MCD, whereby an appeal against the demolition order dated 28.09.2010 passed by the Asstt. Engineer (Building) was dismissed.
2) Before coming to the grounds of the present appeal, it would be appropriate to state in brief the facts of the case.
It is alleged by the appellants herein that late Zubaida Begum w/o Sh. Asgar Ali and mother of the appellants herein, was an owner and landlady of a property bearing Municipal No. B79, G.T. Karnal MCD Appeal No. 01/11 Page 2 of 11 Road, Indl. Area, Delhi110033, allotted to her by the DDA on 02.04.1973; that she died on 08.02.2009 at Delhi, leaving behind the appellants herein and her husband Dr. S.M. Asgar Ali; that after the allotment of the said plot, Zubaida Begum had raised some constructions thereon in pursuance of the sanctioned plan; that Dr. S.M. Asgar Ali i.e. the father of the appellants herein filed a suit for partition and rendition of account against the appellants herein before the Hon'ble High Court by impleading DDA, MCD and Commissioner of Industries as parties in the said suit and that under the pressure of the said suit, the respondent/MCD herein had served a show cause notice bearing no. 109/C71/B/UC/CLZ/210 dated 17.05.2010 to the appellants and the appellants herein accordingly filed a reply to the same on 29.05.2010.
It is further alleged that the respondent herein, without giving any opportunity of being heard and without appreciating the reply/papers submitted by the appellants herein, passed a demolition order dated MCD Appeal No. 01/11 Page 3 of 11 24.05.2010, which was received by the appellants herein on 09.06.2010, in respect of the said plot.
The appellants herein preferred an appeal bearing no. 236/AT.MCD/2010 against the said demolition order before the learned Appellate Tribunal MCD, which appeal was heard and decided on 24.06.2010 and the learned Appellate Tribunal MCD was pleased to set aside the said demolition order and remanded the case to the quasi judicial authority for a fresh decision. It was further ordered that AE(B), Civil Line Zone shall consider the submissions made in the reply dated 19.05.2010 and shall pass a fresh and speaking demolition order dealing with each and every contentions made in the said reply.
It is further alleged by the appellants herein that they accordingly appeared and filed their affidavit, besides the reply dated 19.05.2010 and the quasi judicial authority though took the said affidavit on record, but did not give any opportunity of hearing to them; that on 05.10.2010 the appellants received an MCD Appeal No. 01/11 Page 4 of 11 order dated 28.09.2010 whereby Sh. A.K. Mittal, Asstt. Engineer (Building) directed to demolish the unauthorized construction, within 6 days of the receipt of the order, as mentioned in the show cause notice; that the appellants preferred an appeal against the said order before the learned Appellate Tribunal MCD, but it dismissed the said appeal vide impugned order dated 17.10.2011 along with costs of Rs. 50,000/ and Rs. 5000/. Hence, the present appeal.
3) I have heard learned Counsels for both the parties and have also gone through the entire record carefully.
Here I would like to refer to the developments that took place while the matter was pending before the learned Appellate Tribunal. On 01.12.2012, a local commissioner was appointed to inspect the impugned premises to verify the extent of construction existing on various floors of the property and to report as to how many halls/rooms or other accommodation exist in the basement to second floor. The local commissioner MCD Appeal No. 01/11 Page 5 of 11 accordingly visited the spot, got it photographed/ videographed and later submitted his report dated 13.12.2010 with rough sketch of the existing construction, few photographs and a CD which not only reveal some new additions, alterations and constructions having being raised in the property, but it led to a conclusion that the construction made/changes in the structure nowhere fall within any category of repair under Building Bye Laws, by any stretch of imaginations.
It was further mentioned in the report of the local commissioner that some construction activity was still going on in the property at the time of his visit; some recent constructions have been raised and still at some places, building material was found lying. It was further revealed from the report of the local commissioner that a photographer was arranged by the appellants who took photographs at the site on the directions of the local commissioner but some crucial photographs or their negatives were not provided by the MCD Appeal No. 01/11 Page 6 of 11 appellants to the local commissioner till the date of filing of his report despite directions and even the CD so prepared by the appellants was edited and shortened, as observed by the learned Appellate Tribunal.
The appellants herein filed objections against the report of the local commissioner mentioning therein that he had exceeded his jurisdiction and gave certain opinions qua the nature of constructions etc. and thus his report was beyond the directions of the Court and hence, cannot be looked into and is liable to be rejected. However, this plea of the appellants did not find any force with the learned Appellate Tribunal as the report as well as the photographs itself depict the ongoing construction activity in the impugned premises and hence, the objections filed by the appellants against the report of the local commissioner were rejected.
The learned Appellate Tribunal further examined the issue of proper hearing to the appellants by the quasi judicial authority and rather observed that on 07.07.2011, 14.07.2011 and on 26.07.2011, the matter was taken up by the AE(B) but the appellants did MCD Appeal No. 01/11 Page 7 of 11 not chose to file any document and did not opt to say anything more and got closed the proceedings. More so the signatures of an authorized representative of the appellants on each proceedings rather clearly point out that full opportunity was given to the appellants for personal hearing as also to enable them to file requisite documents, but except filing of three affidavits, the appellants had no material to support their defence in respect of alleged unauthorized construction.
The stand of the appellants right through was that whatever construction exist in the impugned premises, is an old construction made in the year 1976 and it is as per the sanctioned site plan. However, this plea of the appellants herein was totally against the report of the local commissioner and more over when the appellants were directed to file the sanctioned plan, they rather submitted some other plan. The JE(B) was accordingly directed to compare the sanctioned plan with the existing plan and the JE(B) after comparing the sanctioned plan with the existing plan and after MCD Appeal No. 01/11 Page 8 of 11 superimposing the both, had enmarked the portions which are beyond the sanctioned plan. The JE(B) filed a superimposed plan dated 12.11.2010 against which no objection was ever filed by the appellants herein and such plan clearly show the extent of unauthorized construction/deviations so made in the building, from the original sanctioned plan. It rather show that the sanctioned building plan was violated to a great extent.
The learned Appellant Tribunal on examining the report, the photographs, video CD and existing plan given by the appellants as also by comparing it with the sanctioned plan, held that there were new constructions made in the impugned premises which were unauthorized. The learned Appellate Tribunal was of the opinion that since the appellants did not apply for regularization of unauthorized construction and since the unauthorized construction was so serious that the original sanctioned plan has become redundant and nonexistence, so demolition was upheld and the appeal was dismissed with cost of Rs. 55,000/.
MCD Appeal No. 01/11 Page 9 of 11In the appeal too, the learned Counsel for the appellants has argued that there is no unauthorized construction in the impugned premises and that the building is as per the sanctioned plan. The learned Counsel for the appellants herein further argued that the objections to the report of the local commissioner were never decided and quasi judicial authority did not even consider that the construction beyond the sanctioned plan, was illegal or was noncompoundable and hence, during the course of the arguments, it was conceded by the learned Counsel for the appellants that after the impugned order, the appellants have filed an application seeking regularization of deviations, if any and that the impugned order may not be directed to be enforced till such regularization application is decided and that the appeal may be disposed of in terms of this submission.
Having considered the record of the learned Appellate Tribunal and the submissions made, I am in conformity with the decision of the learned Appellate Tribunal MCD which has taken so much pain in MCD Appeal No. 01/11 Page 10 of 11 determining the real extent of unauthorized construction in the property and has passed a reasoned order clarifying as to what was beyond the sanctioned plan, only needs to be demolished.
Hence, in conformity with the learned Appellate Tribunal I, though, dismiss the present appeal, but as the regularization application, as alleged, is still pending before the MCD, so impugned order be not enforced till such regularization application, if any, filed before the quasi judicial authority by the appellants, is decided.
With these observations, the present appeal stands disposed of. The record of the learned Appellate Tribunal MCD be returned along with copy of this Judgment. Appeal file be consigned to the Record Room.
Announced in the (Yogesh Khanna)
open Court today on Distt. & Sessions Judge
08.03.2016 NorthWest
District Court Rohini, Delhi
MCD Appeal No. 01/11 Page 11 of 11