Delhi District Court
M/S Hotel Diplomat vs New Delhi Municipal Council on 12 November, 2021
IN THE COURT OF SH. DINESH KUMAR SHARMA
PRINCIPAL DISTRICT & SESSIONS JUDGE/
APPELLATE AUTHORITY
PATIALA HOUSE COURT, NEW DELHI
MCD Appeal No. 01/2019
1. M/s Hotel Diplomat
(a registered partnership firm)
Through its Partner Sh. Sanjiv Lamba
9, Sardar Patel Marg, Chanakyapuri
New Delhi110021.
2. Sh. Sanjiv Lamba S/o Sh. Kailash Lamba
R/o 129, Golf Links
New Delhi110 003. ........Appellants
Versus
New Delhi Municipal Council
Through its Chairperson
Palika Kendra, Parliament Street
New Delhi110 001. .....Respondent
Date of filing of appeal : 15.03.2019
Date of arguments : 29.10.2021
Date of judgment : 12.11.2021
JUDGMENT
1. This order shall dispose of the appeal filed by the appellants under Section 256(1) of NDMC Act, 1994, challenging the impugned order dated 19.02.2019 of Ld. MCD Appeal No. 01/2019 Hotel Diplomat Anr. vs. NDMC Page 1 of 14 Appellate Tribunal, MCD, whereby the appeal filed against the impugned order/demolition order dated 17.08.2009 was dismissed.
2. Shorn of the details, NDMC issued a Show Cause Notice bearing no. 58/S/EE(UC)/08 & 59/S/EE(UC)/08 dated 25.04.2008 under Section 247 and 258 of NDMC Act on the following grounds : i. Constructed the tandoor area in the lawn with brick work m.a. 15'x6' and height 3'6" comprising a Tandoor fitted with chimney m.a5'x4 covered with awning/PVC roofing unauthorizedly without prior approval of NDMC.
ii. Constructed an umbrella in the lawn supported on bamboo/wooden pillar covered with knitted net m.a. 25'x10' unauthorizedly without prior approval of NDMC.
iii. Constructed a wooden hut in the lawn supported on bamboo/wooden pillar covered with plyboard roofing m.a. 11'x8' of height 8' unauthorizedly without prior approval of NDMC.
iv. Constructed 9" thick brick wall in the lawn m.a. 7'x7' high unauthorizedly without prior approval of NDMC.
v. Erected five umbrellas in the lawn unauthorizedly MCD Appeal No. 01/2019 Hotel Diplomat Anr. vs. NDMC Page 2 of 14 without prior approval of NDMC."
3. Pursuant to the show cause notice, Director, EBR, NDMC, passed the demolition order dated 17.08.2009. The demolition order was challenged by the appellants by filing an appeal bearing no. 26/ATMCD/13 before the Ld. ATMCD. The Ld. ATMCD vide its judgment dated 19.02.2019 dismissed the appeal and upheld the impugned demolition order and gave one month's time to the appellants to remove the alleged unauthorized structure. The Ld. ATMCD inter alia held as under : "17. In view of the RTI reply of the respondent to the query of Sh. Vijay Kohli with regard to the alleged structure/facility in the property in question, subject matter of the impugned order challenged herein, there is no approval/permission/sanction plan with regard to the alleged structure erected by the appellant in property in question for which impugned demolition order has been passed by the respondent.
18. In view of the above reply to the said RTI, the claim of the appellant for using the lawn, open space for sitting arrangement for the restaurant on commercial basis and serving food items etc., as per MCD Appeal No. 01/2019 Hotel Diplomat Anr. vs. NDMC Page 3 of 14 Chapter5, Table5.5 of MPD2021 seems to be misplaced because to avail benefit of Table5.5 of Chapter5 of MPD2021, appellant is required to obtain fresh sanctioned plan. Thus the alleged structure / construction the subject matter of the impugned demolition order and as shown in existence in the status report dated 07.02.2017 and also find reflected in the inspection report dated 03.02.2017 page 1 to 3 are covered under the definition of 'building' and are not permissible under the rules without prior sanction. Appellants are at liberty to approach concerned authorities to obtain the sanction as per law by satisfying the authority that the alleged structure was not more than portable shelter and is permissible under the Building Byelaws2016 as well as provisions of MPD2021.
19. For the reasons mentioned above, I do not find any illegality in the impugned demolition order challenged in the present appeal and the same is accordingly confirmed.
20. The appeal is found devoid of merits and accordingly dismissed.
21. Appellants are given one month time to remove the alleged structure from the property in question as shown in the inspection report dated 03.02.2017 and MCD Appeal No. 01/2019 Hotel Diplomat Anr. vs. NDMC Page 4 of 14 the status report dated 07.02.2017. In case appellants fails to remove the said structure within a period of one month, respondent is at liberty to take action as per demolition order dated 17.08.2009.
22. The appeal is disposed of accordingly in the above terms."
4. Ld. ATMCD also relied upon the RTI reply to the query of Sh. Vijay Kohli and rejected the contention of the appellants regarding the usage of the lawn, open space for sitting arrangement for the restaurant on commercial basis and serving food items etc., as per Chapter5, Table5.5 of MPD2021. It was further held that as per Chapter5, Table5.5 of MPD 2021, the appellant is required to obtain fresh sanction plan. The appellant aggrieved of this, has challenged the impugned order, predominantly, on the ground that all the structures in the open area are in existence for the last more than decades and reflected in the applications for the grant of licence, as are required for running hotel, lodging house and restaurant and on the basis of which, the various departments have renewed the licence from time to time. It has further been stated that in the reply to MCD Appeal No. 01/2019 Hotel Diplomat Anr. vs. NDMC Page 5 of 14 the show cause notice dated 30.04.2008, it was specifically stated that similar instances of Umbrella installed in lawn/open area and "Gazebo" exist in number of premises/hotels. It was stated that such structures are covered under Bylaws and do not fall within the purview of definition of 'building'.
5. The appellant stated that there is no oven in existence and wall is just an architectural feature and other structures which are alleged have been removed and as per inspection report dated 07.02.2017, are portable shelters and temporary in nature and does not fall within the definition of 'building' as per Section 2(4) of NDMC Act. The appellant has stated that the structure, as alleged by the NDMC, is just like 'gazebo' as defined in Bylaw 1.4.55 of Building Bylaws (BBL), 2016.
6. The impugned order has been assailed on the ground that it is based on erroneous assumptions and presumptions. The appellant stated that the Ld. ATMCD has wrongly relied upon the definition of 'portable' as given in the Oxford dictionary. It has further been stated that no sanction or permission is required for the purpose of sitting arrangements in the building being used for MCD Appeal No. 01/2019 Hotel Diplomat Anr. vs. NDMC Page 6 of 14 Hotel & Restaurant.
7. The appellant has, particularly, assailed the finding of the Ld. ATMCD recorded in the para no.18 of the impugned order regarding usage of open area. It has been submitted that the jurisdiction of the Ld. ATMCD was limited to the demolition order.
8. The appellant further stated that neither any sanction nor any permit is required for using the lawn, open space for sitting arrangement of restaurant on commercial basis for serving food items etc.
9. Notice of the appeal was issued to the NDMC and record was called.
10. NDMC filed the reply dated 26.11.2020. In the reply, the NDMC stated that a fresh inspection was carried out by the EBR department on 23.11.2020. Upon the inspection, the department found as follows :
a. The owner/occupier had removed the tandoor area in the lawn measuring about m.a. 15'x6' and height 3'6" comprising a Tandoor fitted with chimney m.a5'x4 covered with awning/PVC roofing as mentioned at Item No. 1 of Schedule 'A' of demolition order dated 17.08.2009. b. The owner/occupier has removed umbrella in MCD Appeal No. 01/2019 Hotel Diplomat Anr. vs. NDMC Page 7 of 14 the lawn supported on bamboo/wooden pillar covered with knitted net m.a. 25'x10' as mentioned at Item No. 2 of Schedule 'A' of demolition order dated 17.08.2009.
c. The owner/occupier has removed wooden hut in the lawn supported on wooden pillars covered with ply board roofing m.a. 11'x8' of height 8' as mentioned at Item No. 3 of Schedule 'A' of demolition order dated 17.08.2009.
d. The owner/occupier has removed the five umbrellas in the lawn as mentioned at Item No. 4 of Schedule 'A' of demolition order dated 17.08.2009. "
11. The NDMC stated that owner/occupier has removed all the items mentioned in the ScheduleA of the demolition order dated 17.08.2009. It was further stated that since appellants have removed all the contentious structures which were erected without due/prior authorisation of the NDMC, as per the impugned Demolition Order dated 17.08.2009, ergo, no dispute between the appellants and EBR Department, NDMC, remains.
12. Sh. K.B. Gupta, Ld. Counsel for the appellant submitted that the impugned order is bad in law as the Ld. MCD Appeal No. 01/2019 Hotel Diplomat Anr. vs. NDMC Page 8 of 14 ATMCD in the impugned order has wrongly returned a finding regarding usage of lawn/open space for sitting arrangement for the restaurant on commercial basis for serving food items etc. It has been submitted that the Ld. ATMCD has fallen into a grave error by asking the appellant to obtain a fresh sanction plan. It has further been submitted that the structure reported in the inspection report dated 07.02.2017 are only temporary portable shelter and is not covered within the definition of 'building'. Ld. Counsel further submitted that there is no oven in existence and wall is just an architectural feature.
13. Sh. K.B. Gupta, Ld. Counsel for the appellant further submitted that Ld. ATMCD has fallen into a serious error by going beyond the jurisdiction regarding sitting arrangements and asking the appellant to obtain sanctioned plan for the same. Reliance has been placed upon Mohinder Singh Gill vs. Chief Election Commissioner & Ors. AIR 1978 SC 851. Ld. Counsel further submitted that as far as the sitting arrangement is concerned, that is required to be shown in the plan attached with the application form for grant of licence before the appropriate authorities i.e. Commissioner of MCD Appeal No. 01/2019 Hotel Diplomat Anr. vs. NDMC Page 9 of 14 Excise, DCP Licensing, Health department of NDMC and Delhi Fire Services. It has further been submitted that Ld. ATMCD has gone beyond the jurisdiction by commenting upon the sitting arrangements in the premises. Ld. Counsel for the appellant has also filed the detailed written submission dated 07.02.2020.
14. Sh. Jasman Singh Sethi, Ld. Counsel for the respondent submitted that Section 24 of the NDMC Act defines 'building'. It has been submitted that the word portable means "able to be easily carried or moved, especially because being of a lighter and smaller version than usual." It has been submitted that on the basis of the definition of 'portable' as given in the NDMC Act, the alleged structures as mentioned in the demolition order dated 17.08.2009 cannot be described as mere portable shelter. It has further been submitted that the alleged structure which has been claimed as 'Gazebo' is in fact permanent in nature.
15. In respect of sitting plan/arrangement, it has been submitted that no prior sanction or approval from the concerned EBR Department (Enforcement Building Regulation) is required and the appellants are required to MCD Appeal No. 01/2019 Hotel Diplomat Anr. vs. NDMC Page 10 of 14 approach the concerned department of the NDMC with a proposal of the same.
16. Ld. Counsel for the respondent has also filed the written submission dated 28.10.2021.
17. I have heard the submission of both the parties and perused the record carefully.
18. The show cause notice dated 25.04.2008 was served upon the appellants on the following grounds :
i. Constructed the tandoor area in the lawn with brick work m.a. 15'x6' and height 3'6" comprising a Tandoor fitted with chimney m.a5'x4 covered with awning/PVC roofing unauthorizedly without prior approval of NDMC.
ii. Constructed an umbrella in the lawn supported on bamboo/wooden pillar covered with knitted net m.a. 25'x10' unauthorizedly without prior approval of NDMC.
iii. Constructed a wooden hut in the lawn supported on bamboo/wooden pillar covered with plyboard roofing m.a. 11'x8' of height 8' unauthorizedly without prior approval of NDMC.
iv. Constructed 9" thick brick wall in the lawn m.a. 7'x7' high unauthorizedly without prior approval of NDMC.MCD Appeal No. 01/2019 Hotel Diplomat Anr. vs. NDMC Page 11 of 14
v. Erected five umbrellas in the lawn unauthorizedly without prior approval of NDMC."
19. The NDMC after considering the reply dated 30.04.2008 passed the demolition order dated 17.08.2009. The appellants challenged the demolition order before the Ld. ATMCD. The Ld. ATMCD vide a detailed order dated 19.02.2019 upheld the demolition order and dismissed the appeal. The appellant aggrieved of the same, invoked the jurisdiction of this court under Section 256(1) of NDMC Act. The NDMC in its reply dated 26.11.2020 has specifically stated that appellants have removed all the contentious structures mentioned in the Demolition Order dated 17.08.2009. Thus, at the outset, the appeal filed by the appellants has become infractuous, however, still in order to test the legality and validity of the impugned order, I have considered the nature of the structures as mentioned in the Demolition Order dated 17.08.2009. I consider that on the face of it, the finding of the Ld. ATMCD are quiet well reasoned regarding the same. The structures, as alleged in the demolition order, cannot be held to be 'portable'. The NDMC has been MCD Appeal No. 01/2019 Hotel Diplomat Anr. vs. NDMC Page 12 of 14 entrusted with the task to ensure that no unauthorised construction is carried out within its jurisdiction. The rules, regulations and bylaws in this regard have to be construed strictly. Thus, I found that Ld. ATMCD has given a categorical finding regarding this and I do not see any reason to disturb the same.
20. In respect of the finding given by the Ld. ATMCD regarding asking the appellants to obtain fresh sanction plan in view of Chapter5, Table5.5 of MPD 2021, I consider that the grievance of the appellants is well placed. The jurisdiction of the Ld. ATMCD in the present appeal was only limited to the demolition order.
21. As I have discussed hereinabove, the Ld. ATMCD has given a correct finding regarding the nature of structures, as alleged in the impugned order.
22. It is also pertinent to mention herein that NDMC has also in its written submission has specifically stated that no prior sanction or approval from the concerned EBR Department (Enforcement Building Regulation) is required for the sitting plan/arrangement. Thus, the finding as recorded in the Para No.18, which is reproduced herein below, of the impugned order dated MCD Appeal No. 01/2019 Hotel Diplomat Anr. vs. NDMC Page 13 of 14 19.02.2019 is set aside :
"18. In view of the above reply to the said RTI, the claim of the appellant for using the lawn, open space for sitting arrangement for the restaurant on commercial basis and serving food items etc., as per Chapter5, Table5.5 of MPD2021 seems to be misplaced because to avail benefit of Table5.5 of Chapter5 of MPD2021, appellant is required to obtain fresh sanctioned plan."
23. With these observations, the appeal is disposed of accordingly
24. Record of Ld. ATMCD along with copy of the judgment be sent back, and thereafter appeal file be consigned to Record Room. DINESH Digitally signed by DINESH KUMAR KUMAR SHARMA Date: 2021.11.12 SHARMA 17:31:17 +0530 Announced in (DINESH KUMAR SHARMA) open court on Principal District & Sessions Judge/ 12.11.2021. Appellate Tribunal Authority New Delhi MCD Appeal No. 01/2019 Hotel Diplomat Anr. vs. NDMC Page 14 of 14