Delhi District Court
Ramesh Kumar Vohra vs Municipal Corporation Of Delhi on 1 October, 2012
IN THE COURT OF SHRI R.K. GAUBA: DISTRICT JUDGE
& ADDITIONAL SESSIONS JUDGE I/C, SOUTH DISTRICT:
SAKET NEW DELHI
Regular Civil Appeal No. 08/2011
ID No.: 02406C0296372011
Ramesh Kumar Vohra
son of late Sh. Hazari Lal Vohra,
R/o Ground Floor, C10/1,
Vasant Vihar, New Delhi. ... Appellant
Versus
1. Municipal Corporation of Delhi
Town Hall, Delhi
Through its Commissioner
2. Pradeep Kumar Assudaney,
Proprietor M/s P. Kumar Associates,
R/o M5, Malvia Nagar, New Delhi 110017.
3. B. R. Lohia,
R/o Third Floor, C10/1,
VasantVihar, New Delhi. ... Respondents
Instituted on: 17.11.2011 (on transfer from Administrator, Union
Territory of Delhi).
Judgment reserved on:20.09.2012
Judgment pronounced on: 01.10.2012
J U D G M E N T
R.C.A. No. 08/2011 Ramesh Kumar Vohra Vs. MCD & ors. 1 of 39
1. This appeal under Section 347D of Delhi Municipal Corporation Act, 1957 (hereinafter referred to as "the DMC Act") was preferred 07.12.2009 before the Administrator of Union Territory of Delhi, assailing the order dated 26.10.2009 of Appellate Tribunal Municipal Corporation of Delhi (ATMCD) in appeal No. 56/ATMCD/2008, whereby the appeal of the appellant under Section 347B of DMC Act against order dated 07.03.2007 passed by South Zone of erstwhile Municipal Corporation of Delhi (MCD) granting sanction for proposed construction at the third floor in property no. C/10/1, Vasant Vihar, New Delhi (the property in question) as also the application for condonation of delay in filing the appeal were found to be devoid of merits and dismissed.
2. The appeal at hand was made over to this court by the Secretariat of the Administrator of Union Territory of Delhi vide communication dated 02.11.2011 pursuant to directions of Hon'ble Supreme Court of India in order dated 21.04.2011 in Civil Appeal No. 5075 of 2005 titled Amrik Singh Lyallpuri Vs. Union of India & Ors.
3. The array of parties on the side of the respondents in this appeal R.C.A. No. 08/2011 Ramesh Kumar Vohra Vs. MCD & ors. 2 of 39 includes Municipal Corporation of Delhi (MCD)respondent no.
1. MCD has since been trifurcated and its interest is now represented by South Delhi Municipal Corporation.
4. The respondent no.2 Pardeep Kumar Assudaney is proprietor of M/s P. Kumar Associates, a firm of Builders with whom the appellant had entered into a collaboration agreement on 12.06.2006, pursuant to which the property was redeveloped, interalia, to construct multistoried structure, part of which went to the share of the appellant (owner) and part to the respondent no.2 (builder). It may be added here that in addition to the collaboration agreement, the appellant (owner) had also executed a General Power of Attorney (GPA) on 28.06.2006, presumably to facilitate the task entrusted to the builder to be undertaken. It is revealed upon the perusal of the pleadings and the submissions on both sides that in the course of development of the super structure in the property in question, respondent no. 2 had raised construction on the third floor level which was sold by him with reference to the authority given by GPA in favour of one Mr. Murari Mirchandani who, in turn, further sold it in favour of B. R. Lohia, who was impleaded in these R.C.A. No. 08/2011 Ramesh Kumar Vohra Vs. MCD & ors. 3 of 39 proceedings as respondent no.3.
5. The appeal under Section 347B DMC Act before the ATMCD was contested by respondents no.1 and 2 only. The respondent no. 3, inspite of service, did not appear and, thus, suffered the hearing exparte.
6. After the appeal had been presented before the Administrator of Union Territory of Delhi, the presence of respondents no.1 and 2 having been secured, the matter was part heard on 07.04.2010. Vide order passed on the said date, the matter was adjourned by the Administrator for further hearing to 07.07.2010 and at the same time Superintendent Engineer (Building) of respondent no.1 was directed to carry out an independent inspection of the property with respect to the sanctioned building plans and submit report after checking if there had been any further additions or alterations or whether it was within the boundaries of law. It was further directed that in case the report was in the negative, it was to be reported as to whether the deviations were within, or beyond, the compoundable limits.
7. The record would show that a status report was submitted on 14.07.2010. Besides reporting excess built up area beyond the R.C.A. No. 08/2011 Ramesh Kumar Vohra Vs. MCD & ors. 4 of 39 sanction it indicated, interalia, following noncompoundable deviations:
"1. Raised platform in front set back
2. Balcony at roof level of basement in rear set back
3. Small area of approx. 0.70 sq. mtrs in front of garage portion at G. F. to S. F.
4. Inter connected balcony at F. F.
5. Over size of Balconies at G. F. to T. F.
6. Partition in whole basement
7. Pota cabin hall and a W. C. at IVth Floor."
8. It appears, however, that the matter thereafter could not be heard for final adjudication, as the Administrator of Union Territory of Delhi remained busy in other engagements.
9. After this appeal had been received on transfer in this court, notices were issued to the parties, pursuant to which the appellant, respondent no.1 and respondent no.2 appeared through counsel. Respondent no.3, however, would not appear despite service and, thus, was set exparte.
10.I have heard Ms. Harvinder Oberoi, advocate for the appellant, Ms. Promilla Kapoor, advocate for respondent no.1 and Mr. D. S. Chauhan, advocate for respondent no.2. I have gone through the record.
R.C.A. No. 08/2011 Ramesh Kumar Vohra Vs. MCD & ors. 5 of 39
11. Certain background facts need to be noted at the out set.
12.It is undisputed that the appellant was owner of the plot ad measuring 334.45 sq. meters (400 sq. yards) beneath the property in question, on the date ( 12.06.2006) he entered into the collaboration agreement with respondent no.2. Prior to the said collaboration agreement, he had applied for and had obtained sanction for construction of basement, ground floor, first floor and second floor from respondent no.1 vide sanction dated 31.05.2006. In terms of the collaboration agreement, it was agreed between the appellant and respondent no.2 that the latter could apply for fresh sanction as per mutually agreed drawings where under the basement, ground floor, first floor (to be developed) would fall to the share of the appellant while the second floor with terrace rights were to go in favour of respondent no.2. It was also agreed that respondent no.2 would make efforts for sanction of construction of two servant quarters with common toilet on the terrace of the second floor to be eventually given to the appellant. For the period of construction work, the appellant was provided (by respondent no.2) alternative accommodation in Shivalik Enclave, New Delhi. R.C.A. No. 08/2011 Ramesh Kumar Vohra Vs. MCD & ors. 6 of 39
13.Reference has been made to clause15 of the collaboration agreement which reads as under: "(a) The owner shall get the Basement, Ground Floor and First Floor along with their share of terrace, as living units as per plans (Annexure B) mutually agreed & signed between the parties to this Agreement as mentioned in Annexure A&B.
(b) The Builder will get the Entire Second Floor with Terrace Rights except for the area marked as per annexure 'B' for two servant quarters and common toilet/bath on the terrace with access from rear spiral staircase only. This is to further clarify that the servant quarters will be constructed only after obtaining sanction for the same from the concerned authority and if the builder will get the sanction for the servant quarters at the terrace during the construction of the said project the servant quarters will be constructed by the builder/second party otherwise the same will have to be constructed by the first party at their own cost and expense as residential unit along with proportionate undivided, indivisible and impartiable rights/share in the land underneath the newly constructed building in lieu of the cost of construction incurred, services and expertise rendered by the R.C.A. No. 08/2011 Ramesh Kumar Vohra Vs. MCD & ors. 7 of 39 second party in constructing and developing the said property and the consideration being paid herewith to the first party by the second party. The Second party will sell their to the perspective buyer only for residential purpose. It is further clarified and so agreed that the second party or his nominee, buyer or transferee shall not raise construction on the terrace/roof of second floor that is Third floor without getting the necessary approval/plan sanctioned from the appropriate authority.
(c) The Builder shall get one car parking (standard size) and owner shall get two car parking (standard size) inside the driveway. However car washing will not be done by any party in the driveway.
(d) The Owner shall have full rights/access for staircase and lift driveway and rear courtyard and will have rights to check repair/maintaining installing the water tank & antenna and cable connection provided on terrace of second floor & without having ownership rights of terrace of second floor except for the area marked as per annexure 'B' for two servant quarters and common toilet/bath on the terrace with access from rear spiral staircase only.
(e) The Builder shall have full rights/access of staircase and lift and driveway/rear R.C.A. No. 08/2011 Ramesh Kumar Vohra Vs. MCD & ors. 8 of 39 courtyard to check/repair/maintaining/ installing underground water tank, water meter and pump and Electric meter without having any ownership rights in the rear courtyard.
(f) The Builder shall have full rights/access of staircase in the rear courtyard to access the servant room at second floor without having any ownership rights in the rear courtyard.
(g) The owner and Builder shall have full rights of ownership in their respective areas allocated under this agreement, they are entitled as owner to dispose of their shares of the building by the way of sale, mortgage gift or any other way as they may deem fit to person for this purpose.
(h) The Builder will construct basement after leaving proper setbacks in front side and in rear courtyard as per bylaws of MCD that space will belong to the owner/The Builder will have rights to access for repair and maintenance of utilities and car parking and rear courtyard stairs use for servant room.
(i) It is hereby specifically clarified that a underground water storage tank (6000 Liters) will be provided in the front courtyard of the building for the common use of all the owners/occupants of the R.C.A. No. 08/2011 Ramesh Kumar Vohra Vs. MCD & ors. 9 of 39 building. Similarly overheard water storage tanks for each floor will be provided on the terrace/roof of the building and every owner/occupant shall have free access to the rear courtyard and terrace at all reasonable time for the cleaning/repair and maintenance of the same. Any kind of leakage fron toilet, bathrooms, overheard water tanks belonging to the occupants/owner of the second floor to be repaired within 30 (thirty days). All Electricity meters will be installed in front courtyard and spiral staircase for servant quarters will be erected in the rear courtyard. The First party will be entitled to install a dish antenna not more than Three feet dia on top terrace/mumty at mutually agreed place".
(emphasis supplied).
14. As mentioned earlier, after entering into collaboration agreement with respondent no.2 on 12.06.2006, the appellant executed GPA on 28.06.2006 appointing respondent no.2 as his attorney. During arguments, reference has been made to the following three clauses in the said GPA: "1. To raise construction thereon as per drawing and working plans stipulated and agreed terms as per the said Collaboration Agreement, on property No. C10/1, situated R.C.A. No. 08/2011 Ramesh Kumar Vohra Vs. MCD & ors. 10 of 39 at Vasant Vihar, New Delhi, to engage, supervise and control the work of sub builders, architect, contractors/petty contractors, engineers, agents and servants, to sign and make application, affidavit, to act before the MCD or any other local Govt.
or Municipal Authority whatsoever and to sign, submit and get the plans of the building sanctioned from MCD, to pay the requisite fee, to receive the sanction plan, under his own signatures. And for the purpose to sign, make execute and submit any application, plan, affidavits, indemnity bond and undertakings etc.
12. To transfer the said entire second floor with terrace rights in/of the said constructed property, by way of mortgage, gift, exchange, lease or license to any person in any manner, the said attorney in his absolute discretion thinks fit and proper.
14. To sign, execute and deliver any deeds of sale, conveyance, mortgagee, gift, exchange, lease or license in respect of the said entire second floor with terrace rights, in/of the said constructed property, in favour of any such purchaser or purchasers or person or persons or his/their nominee or nominees or assignee after completion of the building."
(emphasis supplied).
R.C.A. No. 08/2011 Ramesh Kumar Vohra Vs. MCD & ors. 11 of 39
15. After obtaining the above mentioned authority through GPA and under the collaboration agreement, the respondent no.2 applied for and was granted sanction vide letter No. 47/B/SZ/2007/ATIV/1422 dated 19.03.2007 which was by way of modification of the original sanction vide letter No. 87/SZ/2006 dated 31.05.2006 accorded by respondent no.1 for construction, interalia, inclusive at the level of third floor of the property in question. The construction was, thereafter carried out by respondent No.2.
16.It has not been disputed by the appellant that he took over the possession of the ground floor portion on 06.09.2007 and of the first floor on 27.09.2007. It is also undisputed that the first floor portion was even let out by appellant to a tenant in October, 2007. Further, it is admitted that the appellant took over possession of the basement on 07.12.2007 whereafter the said portion has been used by his son Dr. Deepak Vohra for running a medical clinic. It has been admitted during arguments by counsel for respondent no.2 that the construction of a dwelling unit at the third floor level was incomplete when the said portion was sold by him in favour of Mr. Murari Mirchandani R.C.A. No. 08/2011 Ramesh Kumar Vohra Vs. MCD & ors. 12 of 39 (predecessorininterest of respondent no. 3 herein) on 07.09.2007.
17. It appears that while construction was still in progress, the appellant lodged a complaint dated 08.05.2007 with respondent no.1 raising objection as to the construction of the dwelling unit (the one eventually purchased by respondent no.3) at the third floor level in the wake of which an order was issued by the competent authority in respondent no.1 on 26.05.2007, under Section 344 of DMC Act, requiring the construction work to be stopped. It is the case of the appellant that inspite of the said order the construction continued and the developed portion was transferred by respondent no.2.
18.The DMC Act provides for building regulations in Chapter XVI. As per provisions contained in the said Chapter, activity in the nature of construction of building can be undertaken only in accordance with the building regulations and subject to prior sanction being obtained from the competent municipal authority prescribed therein. The sanction for erection of building is granted under Section 336 of DMC Act by the Commissioner of the Municipal Corporation and the order passed on such request R.C.A. No. 08/2011 Ramesh Kumar Vohra Vs. MCD & ors. 13 of 39 (for sanction or refusal) for erection of any building or execution of any work under Section 336 can be challenged by "the person aggrieved" under Section 347B of DMC Act before the ATMCD, within 30 days from the date of order appealed against.
19.Admittedly, the appellant did not immediately prefer any appeal under Section 347B of DMC Act against the sanction accorded by respondent no.1 vide order dated 19.03.2007 on the request of respondent no.2. He instead preferred Writ Petition (Civil) No. 1523 of 2008 before the High Court of Delhi raising various grievances. The writ petition, however, was dismissed as withdrawn vide order dated 26.02.2008 which reads as under: "After some hearing, learned counsel for the petitioner seeks permission to withdraw the present writ petition and invoke the arbitration Clause and file a Civil Suit. "
20.After having withdrawn the writ petition, the appellant presented the appeal under Section 347B of DMC Act before the ATMCD on 28.03.2008. Apparently, appeal under the said provision of law was barred by time, it being delayed more than 11 months if the period were to be computed with reference to R.C.A. No. 08/2011 Ramesh Kumar Vohra Vs. MCD & ors. 14 of 39 19.03.2007, the date on which sanction was accorded. The appeal was, however, presented with application seeking condonation of delay referring, interalia, to the appellant having earlier approached Hon'ble High Court invoking the writ jurisdiction.
21. In the appeal, before the ATMCD, grievances sought to be agitated essentially were that the respondent no.2 was obliged under the collaboration agreement not to raise construction at the third floor level except as per plans mutually agreed upon by both sides, in which a portion earmarked at third floor level was to be used for construction of two servant quarters which were to be handed over to the appellant. It was claimed that the construction of dwelling unit at third floor level and its transfer by sale in favour of third person (predecessorininterest of respondent no.3) was without authority and thus illegal. It was claimed that respondent no.2 had obtained the sanction for construction of the third floor clandestinely, in violation of the collaboration agreement, and without the written consent or permission of the owner (appellant). It was further claimed that respondent no.2 had misrepresented himself (before the R.C.A. No. 08/2011 Ramesh Kumar Vohra Vs. MCD & ors. 15 of 39 municipal authority) as the owner of the property and had concealed/manipulated the calculation of the FAR. It was also pleaded that sanction had been accorded by respondent no.1 without considering the Master Plan for Delhi 2021 (MPD2021). The appellant also raised grievances in the nature of breach of parking standards required under MPD2021 and nonobtaining of the completion certificate (under Section 346 DMC Act) before transfer of the third floor portion, attributing fraud and collusion between respondents no.1 and 2.
22.Per contra, the respondents no.1 and 2 contested the appeal before ATMCD, interalia, on the ground sufficient cause had not been shown to explain inordinate delay in filing the appeal. It was also claimed that the appellant had all along had full knowledge not only of the sanction but also about the development work undertaken at the third floor level, in as much as he had stepped into the lower portions of the property in September, 2007 putting it to use without waiting for compliance with the provisions requiring completion certificate to be obtained.
23.The ATMCD rejected the appeal on merits as well as on the R.C.A. No. 08/2011 Ramesh Kumar Vohra Vs. MCD & ors. 16 of 39 grounds for condonation of delay. It interalia, observed that sufficient cause has not been shown for the delay to be condoned. It referred to the fact that the revised sanction was obtained by respondent no.2 in March, 2007, whereafter, the construction commenced eventually resulting in the appellant himself moving in certain portions of the property on 06.09.2007. It was of the view that the appellant should have approached the appropriate authority/legal forum to seek the reddressal of his grievances if the construction work had been continued by respondent no.2 in violation of the order under Section 344 DMC Act issued on 26.05.2007. It pointed out that even the Writ Petition was filed beyond the "prescribed period of 30 days" and that the same was withdrawn not for filing the appeal before ATMCD but to pursue the matter through arbitration or by way of a civil suit. It held the appellant guilty of acquiescence in the "misrepresentation" on the part of respondent no.2. It observed that noncompliance with the provisions of Section 346 DMC Act for completion certificate to be obtained was of no consequence in the dispute raised through the appeal.
R.C.A. No. 08/2011 Ramesh Kumar Vohra Vs. MCD & ors. 17 of 39
24.When a lis become stale, it is generally impermissible in law for it to be entertained on account of the same not having been taken to the competent judicial forum within the prescribed period of limitation. Thus on expiry of limitation period, the jurisdiction to entertain or grant relief ordinarily stands closed. The law of limitation, however, is not rigid. The dispute can still be taken up for adjudication if the law permits the delay to be condoned upon sufficient cause (explaining the delay) being shown. Before the judicial authority proceeds to examine the merits of the case (for granting or declining the relief), it must first examine the question of limitation and the prayer for condonation of delay. If the delay is condoned, the court or tribunal may then examine the case and proceed to adjudicate on merits. Conversely, if the cause of delay is found to be not satisfactory, or lacking bonafide, the petition claiming judicial remedy cannot be entertained and is thus, thrown out at the threshold. Thus, there would be no occasion for consideration of its merits. It is improper to simultaneously entertain the prayer for condonation of delay and examine the merits of the main case.
R.C.A. No. 08/2011 Ramesh Kumar Vohra Vs. MCD & ors. 18 of 39
25.The impugned order suffers from a basic error. The learned Presiding Officer of ATMCD has made adverse comments on the merits of the appeal even while rejecting the prayer of condonation of delay, which was not proper.
26.As indicated earlier, the DMC Act prohibits (Section 332) erect or commence to erect any building or execution of any such work to be undertaken "except with the previous sanction of the Commissioner" which cannot be but "in accordance with the provisions" of law and "of the byelaws" framed under DMC Act. Every person who intends to erect a building is duty bound (Section 333) to apply for such sanction, the notice to which effect is expected to be accompanied by the "prescribed documents and plans".
27. The building byelaws that have been framed under the DMC Act make detailed provisions as to the requirements that have to be fulfilled by a person seeking to erect a building. Some of these requirements are spelt out in Sections 334 and 335 DMC Act. The Commissioner of the Municipal Corporation grants sanction under Section 336 of DMC Act. The said statutory rule authorises the Commissioner to refuse the sanction if the R.C.A. No. 08/2011 Ramesh Kumar Vohra Vs. MCD & ors. 19 of 39 request is not in accord with the statute, byelaws or rules/instructions on the subject.
28.Bearing in mind the probability that the sanction or refusal to grant sanction by the Commissioner for erection of building under Section 336 DMC Act may be erroneous, the statute provides for remedy of appeal before ATMCD. The source of jurisdiction vested in ATMCD in this regard can be traced in Section 347B (1) (f). It is admitted on both sides that the period within which the appeal may be preferred is 30 days from the date of order sanctioning, or refusing to sanction, the erection of building under Section 336 DMC Act. The proviso to Section 347 B(2), however, empowers the ATMCD to entertain an appeal even after expiry of the said period of 30 days, if it is satisfied that there was "sufficient cause" for the appeal not being filed within that period.
29.Section 338 DMC Act is a parallel provision which vests in the Commissioner of the Municipal Corporation an authority to "cancel" the sanction which he may have accorded if it is found subsequently "at any time after the sanction" that such sanction was accorded "in consequence of any material mis R.C.A. No. 08/2011 Ramesh Kumar Vohra Vs. MCD & ors. 20 of 39 representation or fraudulent statement". For appreciating the full impact and import of the said authority vested in the Commissioner, Section 338 DMC Act may be quoted in extenso. It reads as under: "338. Sanction accorded under misrepresentation. If at any time after the sanction of any building or work has been accorded, the Commissioner is satisfied that such sanction was accorded in consequence of any material misrepresentation or fraudulent statement contained in the notice given or information further under sections 333, 334 and 335, he may by order in writing cancel for reasons to be recorded such sanction and any building or work commenced, erected or done shall be deemed to have been commenced, erected or done without such sanction:
Provided that before making any such order the Commissioner shall give reasonable opportunity to the person affected as to why such order should not be made."
30.As is clear from the proviso to Section 338 quoted above, the power of cancellation must be exercised bearing in mind the rules of natural justice. This is why the Commissioner is R.C.A. No. 08/2011 Ramesh Kumar Vohra Vs. MCD & ors. 21 of 39 expected to "give reasonable opportunity" to the person affected as to why such order be not passed. It is amply clear that this necessitates issuance of a show cause notice for purposes of Section 338 DMC Act.
31. Since possibility of unauthorised constructions being undertaken exists, the law vests in the Commissioner of the Municipal Corporation the power and jurisdiction to order not only demolition of such structure illegally erected but also direct stoppage of such work (under Section 343 and 344 of DMC Act).
32.It may be added here that remedy of appeal before ATMCD is available to a person aggrieved by an order cancelling a sanction under Section 338 or by an order requiring stoppage (under Section 344) of any erection of work [under Section 347B(1)
(h) & (i)].
33.Though the language employed in Section 338 extracted above would indicate it is a power vested in the Commissioner, there can be no dispute about the proposition that the Commissioner may exercise it suomotu or even at the instance of a person aggrieved by the sanction, if there is material to show it to be R.C.A. No. 08/2011 Ramesh Kumar Vohra Vs. MCD & ors. 22 of 39 vitiated on account of misrepresentation or fraud. Noticeably, the remedy of appeal under Section 347B(1)(h), is meant only for a person aggrieved by an order cancelling a sanction under Section 338 DMC Act. It is silent with regard to the remedy for a person aggrieved on account of lack of action on the part of Commissioner in exercising his jurisdiction under Section 338 DMC Act. In this view, for a person placed in such situation, the remedy will have to be carved out by conjoint effect of Section 347B(1)(f) &(h) DMC Act.
34.But then, the question which arises in above context is as to reference to which date, the person aggrieved can claim cause of action visavis the omission on the part of the Commissioner to exercise jurisdiction under Section 338 DMC Act. In my considered view, the period of limitation for such purposes would have to be computed with reference to the date on which the aggrieved person acquires knowledge.
35. The ATMCD has held the appellant guilt of acquiescence. The chronology of events as noted in the impugned order seem to, on their first blush, give an impression that the appellant had come to know at least by 08.05.2007 (when he made a formal R.C.A. No. 08/2011 Ramesh Kumar Vohra Vs. MCD & ors. 23 of 39 complaint) that the respondent no.2 had obtained the sanction for certain work to be carried out on the third floor of the property (at a portion other than one earmarked for servant quarters). It has to be granted that from this perspective, the period of limitation of 30 days for challenging the sanction under Section 338 DMC Act would have begun to run from such date. The appeal under Section 347B presented before ATMCD on 28.03.2008, thus, would be technically time barred.
The resort to the writ jurisdiction resulting in order dated 26.02.2008 also would not help the appellant. But then, the facts which have come to light during the hearing show that the appellant's appeal could not be trashed as time barred beyond salvage. The facts show he was made to remain under the illusion that the Commissioner of the Municipal Corporation was seized of his grievances relating to the alleged misrepresentation and fraud play which, if confirmed, would result in the sanction to be cancelled under Section 338 DMC Act. It has to be borne in mind that if cancellation order was to inure under Section 338 DMC Act, there would be no need for the appellant to take out an appeal under Section 347B DMC R.C.A. No. 08/2011 Ramesh Kumar Vohra Vs. MCD & ors. 24 of 39 Act.
36.The above needs elaboration.
37. As can be seen from some of the clauses of collaboration agreement and the GPA which have been noted at some length in the earlier part of this judgment, the appellant had not given a carteblanche to the respondent no.2. The contractual understanding clearly was that permission for erection of work was to be obtained by the respondent no.2 "as per plans (annexure "B") mutually agreed" between the parties.
38. The annexure "B" to the collaboration agreement mainly showed two servant quarters with rest of the area indicated to be used as green belt. Even if other clauses indicate the permissibility of some structure to be built at such place, and for it to be available for respondent no.2 to be sold for consideration, it would have to be a construction based on plans "mutually agreed". It is the case of the appellant that the respondent no.2 did not give his consent or agreement for a "dwelling unit" to be developed at such portion on the third floor. There is yet no clear answer given in this regard by the respondent no.2. The issue of fact consequently arising remains R.C.A. No. 08/2011 Ramesh Kumar Vohra Vs. MCD & ors. 25 of 39 unaddressed by ATMCD.
39. It has been conceded by counsel for respondent no.1 that the application for the revised sanction moved by the builder on the strength of collaboration agreement and GPA required to be considered for the grant of sanction under Section 336 DMC Act in light of the understanding reached between the owner on one hand and the builder on the other. Strangely, however, she referred to Sarla Mehra Vs. Praleen Chopra [2010(3) AD(Delhi) 313] to argue that the erection of the dwelling unit by the respondent no. 2 and its transfer by him in favour of third person could not be faulted. Ideally, this argument should have come from respondent no.2. Be that as it may, what distinguishes the case at hand from the factual matrix in Sarla Mehra (supra) is the clause in the collaboration agreement permitting the construction only to the extent of plans that were "mutually agreed".
40.The appellant has drawn attention in the above context to the following policy decision promulgated by the Commissioner of MCD on 07.01.2004 : "No. D/15/EE (B)HW/04 Dated 7.1.2004 R.C.A. No. 08/2011 Ramesh Kumar Vohra Vs. MCD & ors. 26 of 39 Office Order In order to check the activities of "Builders" who enter into an agreement of collaboration with an owner to raise the construction of a building and who subsequently indulge in largescale deviations from sanctioned plan, henceforth, while sanctioning the building plans, an affidavit be obtained from the owner to the effect that "there is/will be collaboration with any person (name is specified" or "there is/will be no collaboration with any person" as the case may be, for construction of the building for which sanction of plan is being sought. In case of collaboration as above, a copy of agreement for such collaboration should be obtained while granting sanction. In addition separate undertaking by both the parties to the said collaboration be taken to the effect that "there will be no deviation in contravention of the sanctioned plan and / or the other stipulated conditions thereto, and also that they will be jointly and severally responsible and liable to be acted against for any kind of deviation. Action in such cases be taken both against owner's well as builder under various provisions of DMC Act (Amended), which provides simple imprisonment of six months or a fine of Rs.5000/ or both.
R.C.A. No. 08/2011 Ramesh Kumar Vohra Vs. MCD & ors. 27 of 39 This issues with the prior approval of the Commissioner.
Sd/ (Y.B. Bankata) Additional Commissioner (Engg.)"
(emphasis supplied).
41. The counsel for respondents no.1 and 2 did not dispute that the above norms were expected to be followed by the authorities assessing the request for sanction under Section 336 DMC Act. The appellant has obtained, under Right to Information Act, interalia, copies of affidavits/undertakings submitted by the respondent no.2 while seeking revised building plans to be sanctioned mainly for purposes of construction on the third floor.
42.The two affidavits/undertakings read as under: "AFFIDAVIT / UNDERTAKING I / we Ramesh Kumar Vohra son of Late Shri Hazari Lal Vohra R/o C10/1, Vasant vihar, New Delhi - 110057 through my GPA Sh. Pradeep Kumar Assudaney son of Shri G.C. Assudaney R/o M5, Malviya Nagar, New Delhi - 110017 Prop. of M/s P. Kumar Associates do hereby solemnly affirm and declare as under:
1.That I am the owner of Plot No. C - 10/1,Vasant R.C.A. No. 08/2011 Ramesh Kumar Vohra Vs. MCD & ors. 28 of 39 Vihar, New Delhi, measuring 400 sq. yards and have submitted its building plan under Section 333 and 334 of the DMC Act for its approval to MCD.
2.That no extra dwelling unit shall be created and building shall be constructed strictly as per sanctioned plan.
Sd/ P.G. Assudaney.
Deponent VERIFICATION :
Verified at New Delhi on this 27th day of Feb. 2007 that the contents of the above affidavit / undertaking are correct to the best of our knowledge and belief and nothing has been cancelled therein.
Sd/ P.G. Assudaney.
Deponent "
AFFIDAVIT / UNDERTAKING I Ramesh Kumar Vohra son of Late Shri Hazari Lal Vohra R/o C10/1, Vasant vihar, New Delhi - 110057 through my GPA Sh. Pradeep Kumar Assudaney son of Shri G.C. Assudaney R/o M5, Malviya Nagar, New Delhi - 110017 Prop. of M/s P. Kumar Associates do hereby solemnly affirm and declare as under:
1. That I have submitted its building plans for construction / additions / alterations of building on Plot No. C10/1 located at Vasant Vihar, New Delhi110057 to the MCD under section 333 and 334 of the R.C.A. No. 08/2011 Ramesh Kumar Vohra Vs. MCD & ors. 29 of 39 DMC Act 1957 for favour of sanction.
2. That I have entered into a collaboration agreement with Sh. Pradeep Kumar Assudaney Prop. Of M/s P. Kumar Associates R/o M5, Malviya Nagar, New Delhi110017 for construction of the aforementioned building.
3. That I and Shri Pradeep Kumar Assudaney collaboration jointly hereby give an undertaking that no deviations contravention of the sanctioned plan and the stipulated conditions shall be carried out by us during constriction and case of any contravention both can be held equally responsible.
Sd/ P.G. Assudaney.
Deponent VERIFICATION :we have named deponent do hereby affirm and verify that I have voluntarily made the above affidavit and its contents are true to the best of our knowledge.Verified at New Delhi on this 27th day of Feb. 2007.
Sd/ P.G. Assudaney.
Deponent
43. Both the above affidavits bear the signatures of respondent no.2 only. Undoubtedly, the appellant is not a signatory to any of these documents and there is nothing on record to show that he R.C.A. No. 08/2011 Ramesh Kumar Vohra Vs. MCD & ors. 30 of 39 was privy or party to this material submitted to the MCD. It is not disputed that "separate" affidavit or undertaking were not taken from the appellant in the letter and spirit of office order dated 07.01.2004 referred to above.
44.A copy of the plan for construction on the third floor for which respondent no.2 was given the revised sanction by respondent no.1 has been shown during the hearing. It does talk of portions in the nature of family lounge, bed room, toilet and sanitary, There is no mention of any portion to be used as "kitchen". And yet, the sale deed executed on 07.09.2007 whereby respondent no.2 is shown to have transferred the said accommodation at the third floor in favour of the predecessorininterest of respondent no.3 described it to include a "kitchen". On the basis of material obtained under Right to Information Act, the appellant seeks to show that under the National Building Code 2005, an independent unit with separate facility for cooking and sanitary requirement is known as "dwelling unit".
45.It was submitted by the counsel for the appellant, and conceded by both counsels on other side, that pursuant to series of orders passed by Hon'ble Supreme Court of India in Writ Petition R.C.A. No. 08/2011 Ramesh Kumar Vohra Vs. MCD & ors. 31 of 39 (Civil) 4677 of 1985 M. C. Mehta Vs. Union of India certain restrictions had come into operation about the construction at the level of third floor for residential units, in and around 2007. It is clear from the chronology of events that the appellant had come to know about the activity of construction at the third floor level in the property around the same time. This is what appears to have impelled him to lodge the complaint on 08.05.2007. The counsel for respondent no.1 herself submitted for record photo copy of a sheet from the file of Municipal Corporation under the signatures of JE(Building) 165Z dated 13.07.2007, referring to the complaint regarding the construction at the third floor level of the property in question. It indicates that on receipt of instructions from the Additional Commissioner (B) an order for stopping of construction work at third floor was served on the owner/builder with directions that it be not carried out till further orders passed by Hon'ble Supreme Court of India. The counsel for respondent no.1 submitted that since the construction work had continued inspite of the said order, the portion at the third floor of the property was sealed on 13.07.2007.
R.C.A. No. 08/2011 Ramesh Kumar Vohra Vs. MCD & ors. 32 of 39
46.While assailing the impugned order of ATMCD, the appellant in the appeal at hand has, interalia, pleaded (in GroundD) that the fact that there was a ban on construction of the third floors imposed by Hon'ble Supreme Court of India since 08.05.2007 (irrespective of sanction of plan) had been ignored. In answer to this, respondent no.2 in his reply dated 25.03.2010 has pleaded as under: "In reply to Ground D, it is submitted that when the Hon'ble Supreme Court imposed ban on construction of the Third Floor, the respondent no.1 authority had sealed the construction which was going on the third floor. Only when the Hon'ble Supreme Court relaxed the said ban and the respondent no.1 desealed the property, did the answering respondent resume the construction."
47. The above pleadings of respondent no.2 thus confirm the submissions not only of the appellant but also of the respondent no.2 that the construction work at the third floor had been stopped. But then, he is noncommittal as to when the property was "desealed" permitting the construction to be "resumed". As noted above, the submissions of respondent no.1 contradict R.C.A. No. 08/2011 Ramesh Kumar Vohra Vs. MCD & ors. 33 of 39 the stand of respondent no. 2 in which view it has to be assumed that this was done by respondent no.2 on his own.
48.Though initially it was sought to be submitted that the ban on construction activity had been totally lifted by Hon'ble Supreme Court of India vide order passed on 23.07.2007 in case of M. C. Mehra (Supra), it was conceded that the said order would not protect resumption of the construction activity other than one permissible under Master Plan 1990, as modified in 1998. The counsel for both the respondents further conceded that the bar against the construction was actually lifted, subject to certain conditions, in terms of order dated 14.03.2008 of Hon'ble Supreme Court of India [in case of M.C. Mehta (supra)]. In this context the counsel for respondent no.1 even referred to circular no. 283/SE(Bldg.)/HS 2008 dated 10.04.2008 issued by respondent no.1.
49.The above sequence of events thus demonstrates that the construction of the third floor portion had been directed to be "stopped" by way of order dated 26.05.2007 under Section 344 DMC Act issued by respondent no.1. The construction, however, had continued in breach of the order. Therefore, the R.C.A. No. 08/2011 Ramesh Kumar Vohra Vs. MCD & ors. 34 of 39 property had to be sealed by respondent no.1 on 13.07.2007 though also pursuant to restrictions against construction on third floors imposed by orders of Hon'ble Supreme Court of India.
50.The restrictions were relaxed by Hon'ble Supreme Court of India only on 14.03.2008. Therefore, it has to be assumed that the construction work at the third floor had remained suspended till such date. And yet, the respondent no.2 had sold away the said portion (in favour of predecessorininterest of respondent no. 3) by way of sale deed dated 07.09.2007. On being asked to explain, the counsel for the respondent no.2 submitted that the collaboration agreement and the GPA read together permitted such transfer by sale at any time "during or after the building is fully completed". Going by his own pleadings and the reply to the appeal at hand as noted above, it has to be assumed that respondent no.2 had desealed the portion at the third floor some time after 14th March, 2008 to resume the construction.
51. The above facts by themselves provide the "sufficient cause" for the delay. (if any, in presenting the appeal under Section 347B DMC Act) to be condoned. Undoubtedly, the appellant could R.C.A. No. 08/2011 Ramesh Kumar Vohra Vs. MCD & ors. 35 of 39 have come in appeal under Section 347 B (1)(f) DMC Act questioning the sanction granted under Section 336 in favour of respondent no.2 on 19.03.2007 within 30 days thereof. But then, the record shows he was not privy to the grant of the said sanction as his separate affidavit or undertaking were not insisted upon and instead affidavit and undertaking purporting to have been executed in his name, though signed by respondent no.2 were accepted. The construction activity at third floor was noticed by the appellant in May, 2007, when he took exception to it and lodged complaint with the Commissioner of MCD on 08.05.2007. This led to the order under Section 344 DMC Act being issued on 26.05.2007 followed by premises at third floor being sealed so that the stoppage could be enforced. Apparently, the appellant was given the impression that his objections to the sanction on the ground of misrepresentation or fraud were being inquired into by the Commissioner for purposes of Section 338 DMC Act. [ O. P. Malik Vs. MCD & ors 115(2004) DLT 148].
52.The premises remained sealed and the construction remained stopped at least till 14.03.2008. In these circumstances, when R.C.A. No. 08/2011 Ramesh Kumar Vohra Vs. MCD & ors. 36 of 39 the appellant was sitting pretty in the fond hope that Section 338 DMC Act would bring him necessary relief, he would not have felt it necessary to simultaneously bring in a litigation before the Tribunal under Section 347B DMC Act.
53.As is clear from the submissions of the counsel for respondent no.1 which were recorded in the proceedings of 20.09.2012, the respondent no.1 is unable to show from record any further action taken on the complaint dated 08.05.2007 beyond the action for sealing undertaken on 13.07.2007. The order directing the work to be stopped or premises to be sealed were only interim measures. It needs to be probed as to why the Commissioner of the Municipal Corporation failed to take the matter to its logical end in exercise of his jurisdiction under Section 338 DMC Act. Noticeably, the facts show that the respondent no.2 did not challenge the order under Section 344 DMC Act by way of appeal. The said order was never withdrawn by respondent no.1. It needs inquiry as to how inspite of said order and sealing, construction was resumed.
54.Having regard to the above set of facts, the appeal under Section 347B DMC Act could and should not have been thrown out as R.C.A. No. 08/2011 Ramesh Kumar Vohra Vs. MCD & ors. 37 of 39 time barred. The delay has been duly explained and deserves to be condoned. The observations in the impugned order of ATMCD finding no merits in the appeal were not only uncalled for (as the appeal was being treated by that forum as time barred) but also unfair since the merits of the allegations in the nature of misrepresentation and fraud have not been examined and adjudicated.
55.As mentioned earlier in this judgment, pursuant to interim order passed on 07.04.2010 in this appeal by the Administrator of Union Territory of Delhi, the property had been inspected by the Building Department of respondent no.1. The said inspection has brought out a number of deviations indulged in by the builder even with reference to the sanction plan, some of which are even noncompoundable. In the light of this, even on the principle of public interest, it is necessary that the appeal under Section 347 B DMC Act presented by the appellant before ATMCD is considered and adjudicated upon on merits.
56.For the foregoing reasons, the appeal at hand is allowed. The impugned order dated 20.10.2009 of ATMCD is set aside. The appeal under Section 347B, DMC Act presented by the R.C.A. No. 08/2011 Ramesh Kumar Vohra Vs. MCD & ors. 38 of 39 appellant on 28.03.2008 is restored on the file of ATMCD.
57. Given the time that has already lapsed, it is necessary that the appeal is decided without further delay and clear findings on merits are reached on all issues that have been raised. The ATMCD is requested to adjudicate on the appeal expeditiously, preferably within four months of the date now being fixed for first appearance of the parties before it.
58.The parties are directed to appear before ATMCD on 25.10.2012.
59.A copy of the order be given dasti to all sides. Copy of the order be also sent to ATMCD.
60.File of the appeal be consigned to record room. Announced in open Court today on this 1st day of October, 2012 (R.K. GAUBA) District Judge & Additional Sessions Judge, I/C, South District Saket, New Delhi R.C.A. No. 08/2011 Ramesh Kumar Vohra Vs. MCD & ors. 39 of 39