Delhi District Court
Shri Vikas Gaur vs Municipal Corporation Of Delhi on 21 November, 2014
IN THE COURT OF MS. RAVINDER KAUR,
DISTRICT & SESSIONS JUDGE : SOUTH WEST
DISTRICT DWARKA COURTS : NEW DELHI.
MCDA No. 01/2011
Unique I.D. No. 02405C0305642011
Shri Vikas Gaur
S/o Late Shri P.K.Gaur
46, Basant Nagar, New Delhi ........ Appellant
Vs
Municipal Corporation of Delhi
Through its Commissioner
Town Hall, Chandni Chowk,
Delhi - 110 006 ........ Respondent
Date of Institution : 22.10.2011
Date of Argument : 31.10.2014
Date of Decision : 21.11.2014
Appearance : Shri Asim Sridhar, Ld. counsel for the appellant.
Shri Sameer Chugh, Ld. counsel for the respondent.
JUDGMENT
The present appeal has been filed against the impugned judgment dated 01.09.2011 passed by the Appellate Tribunal, MCD in the matter titled Vikas Gaur Vs Municipal Corporation of Delhi.
2. Notice of the appeal was issued to the Respondent.
3. Record of Appellate Tribunal, MCD was also summoned and perused.
4. Brief facts, necessary for the disposal of the present MCDA 01/2011 Vikas Gaur Vs. M.C.D. Page 1 appeal, are that the present appellant claims to be the co-owner of the property no. 46, Basant Gaon, New Delhi. On account of some unauthorized construction being raised on property, show cause notice dated 27.07.2010 was issued by the MCD to the appellant. Reply to the said notice was given by the appellant on 02.08.2010 wherein it is stated that no unauthorized construction was carried out on the property in question. It is mentioned therein that certain major repairs were being carried out at house no. 45 (right portion) which is adjoined with house no. 46 and that even the said repair work was as per Municipal Act.
5. Another show cause notice dated 13.08.2010 was issued by the MCD to the owner/builder/occupier of Property No. 46, Basant Gaon, New Delhi, containing the details of unauthorized construction on the said property, which was replied by the appellant vide undated reply.
6. Not being satisfied with the reply of the appellant, the sealing order no. 688/Seal/DC/SZ/Bldg./2010 dated 08.09.2010 was issued by the MCD in respect of property no. 46, Basant Gaon, New Delhi.
7. The appeal was preferred by the present appellant against the aforesaid sealing order before the Appellate Tribunal MCD. Vide judgment dated 01.09.2011, the Appellate Tribunal MCD held that the Appellant had no locus standi to file the appeal as he had no concern with the sealed property in view of his own admission made in the reply to the show cause notice and that there was no MCDA 01/2011 Vikas Gaur Vs. M.C.D. Page 2 mistake on the part of the officials of the respondent i.e. MCD in sealing the property in question.
8. I have heard arguments addressed by Shri Asim Sridhar, Ld. counsel for the appellant and Shri Sameer Chugh, Ld. counsel for the respondent.
9. The counsel for the appellant has submitted that the impugned judgment to the effect that the appellant has himself admitted that he does not have any legal right over the property in question is totally perverse and unfounded as the reply clearly shows that appellant is one of the co-owners of the property and has no where denied in the reply that he is not the owner/co-owners of the property in question. Ld. Counsel has submitted that the appellant tribunal has also committed grave error in rejecting the memorandum of settlement dated 12.01.2007 entered into between the family members. It is submitted that this family settlement did not create any right in favour of the appellant and his other family members but only finds reference to earlier settlement vide which the rights were created in favour of the persons between whom the family settlement was arrived at on 12.01.2007 and as such this document could not have been rejected by the appellate tribunal for want of registration under Section 17 of the Registration Act. To this effect, he has relied upon the judgment of the Hon'ble Apex Court in case of Hansa Industries Private Limited and Others Vs Kidarsons Industries Private Limited, in Appeal (Civil) 1682 of 1999, C.A. No. 1705 of 1999 decided by the Hon'ble Supreme Court of India on 13 October 2006.
MCDA 01/2011 Vikas Gaur Vs. M.C.D. Page 3
10. It is further submitted by the counsel for appellant that the appeal preferred by him before Appellate Tribunal MCD was not disposed of on merits by the Tribunal and was dismissed on the ground that appellant has no locus standi to file the same and he was given liberty to file a fresh appeal again in the Tribunal, if he was able to establish his right and title over the sealed property by obtaining the orders of the competent civil court that the property in question came to his share or belong to him under alleged family partition dated 12.01.2007.
11. The undated reply of the appellant, received in the MCD office on 30.08.2010, to the show cause notice dated 13.08.2010, was read in the court and the counsel for the respondent was unable to make any comment on the contents of the para 2 of the reply. However, the bare reading of Para 2 of the reply shows that the appellant has not denied that property no. 46 does not belong to him. The contents of para (2) of the reply are reproduced as follows:
Para no.(2) "That house no. 46 does not belong to me/us only."
12. The aforesaid reply clearly indicates that the appellant is claiming ownership in respect of the property alongwith others. Therefore, the observation made by the Appellate Tribunal in the impugned judgment that the appellant has no locus standi to file the appeal as he has no concern with the sealed property in view of his own admission made in the reply to the show cause notice, is incorrect. At the same time it is observed that the MCDA 01/2011 Vikas Gaur Vs. M.C.D. Page 4 appeal was not decided on merits by the Appellate Tribunal as the tribunal had given liberty to file the fresh appeal again in the tribunal after getting his title fixed in respect of the property from a civil court.
13. In view of the observation made above with regard to mis- reading/misconstruing the meaning of Para (2) of the reply to the show cause notice of the MCD dated 13.08.2010 by the Appellate Tribunal, the impugned judgment is hereby set aside and the appeal is remanded back to the Appellate Tribunal to dispose it of afresh after rightly interpreting the contents of para (2) of the reply referred above and on merits of the case. With these observations, the appeal stands disposed of.
14. Parties are directed to appear before the court of Shri Ashwani Kumar Sarpal, Appellate Tribunal, MCD/Successor Court, Tis Hazari, Delhi on 27.11.2014.
Record of Appellate Tribunal, MCD be sent back along with copy of this judgment.
Appeal file be consigned to record room.
Announced in open court on 21.11.2014 (Ravinder Kaur) District & Sessions Judge:
South West District Dwarka Courts/Delhi.
MCDA 01/2011 Vikas Gaur Vs. M.C.D. Page 5 MCDA No. 01/2011 Vikas Gaur Vs Municipal Corporation of Delhi 21.11.2014 Present: Appellant in person.
None for respondent.
Vide separate judgment announced in the open court, the impugned judgment dated 01.09.2011 is hereby set aside and the appeal is remanded back to the Appellate Tribunal to dispose it of afresh after rightly interpreting the contents of para (2) of the reply to show cause notice dated 13.08.2010 and on merits of the case.
Parties are directed to appear before the court of Shri. Ashwani Kumar Sarpal, Appellate Tribunal, MCD/Successor Court, Tis Hazari, Delhi on 27.11.2014.
Record of Appellate Tribunal, MCD be sent
back along with copy of this judgment.
Appeal file be consigned to record room.
(Ravinder Kaur)
District & Sessions Judge:
South West District
Dwarka Courts/Delhi
21.11.2014
MCDA 01/2011 Vikas Gaur Vs. M.C.D. Page 6