Delhi District Court
Sh. Inder Mohan Dawar vs Municipal Corporation Of Delhi on 28 February, 2007
1
IN THE COURT OF SMT. PINKI ADDITIONAL DISTRICT
JUDGE, DELHI
SUIT 180/03
IN THE MATTER OF:
1. Sh. Inder Mohan Dawar,
S/o Late Sh. Des Raj Dawar,
Plot Khasra No. 110/22,
Opp. Chaman Dhaba
Jheel Kuranja,
Delhi - 110051
2. Sh. Prem Prakash,
S/o Late Sh. Moti Ram,
Plot Khasra No. 111/22,
Opp. Chaman Dhaba,
Jheel Kuranja,
Delhi - 110051 .....Plaintiffs
Versus
1. Municipal Corporation of Delhi
Town Hall, Chandni Chowk,
Delhi - 10006
2. D.K. Jain,
Dy. Education Officer,
Education Department
Municipal Corporation of Delhi
Shahdara (South Zone)
Kanti Nagar,
Delhi - 110032
3. Maharaj Singh Malik,
S.H.O. P.S. Geeta Colony,
Geeta Colony,
Delhi - 110051 .....Defendants
Contd.....
2
Date of Institution: 30.11.2002
Date of Order: 28.02.2007
JUDGEMENT
1. Both the plaintiffs, Sh. Inder Mohan Dawar and Sh. Prem Parkash i.e plaintiff no. 1 and plaintiff no. 2 have filed the present suit on 30.11.2002 praying for the following relief: -
"(a) pass a decree of declaration that Defendant no. 1 is abusing process of law in approving Resolution dated 13.11.2002 for acquisition of plot nos. 110/22 and 111/22, Jheel Kuranja, Delhi - 110051
(b) pass a decree of Permanent Injunction against the defendants, their agents, employees, assigns, successors in interest from interfering in any manner with the possession of or otherwise hamper or obstruct peaceful enjoyment by the plaintiffs of plots no. 110/22 and 111/22, Jheel Kuranja, Delhi - 110051 of any portion thereof.
(c) pass a decree of Permanent Injunction against defendants, their agents, employees, assigns, successors in interest restraining Contd.....3
them from interfering with the development and building operation being carried on by plaintiffs on plots no. 110/22 and 111/22, Jheel Kuranja, Delhi - 110051."
2. Vide order dated 11.02.2004 amendment application moved by plaintiff was allowed. The following relief as prayer (d) has also been added in the plaint:
"(d) pass a decree for declaration that the demolition on 29.11.2002, is illegal and also that the rejection of plaintiffs plan by the MCD are illegal, unjustified, unwarranted and against the provisions of law and further the plaintiffs are entitled to continue the construction in accordance with plans submitted by the plaintiffs."
3. However, as per order dated 29.08.2006 learned counsel for plaintiff has stated that plaintiff did not press first part of the prayer i.e. prayer (d) regarding decree of declaration that demolition dated 29.11.2002 was illegal. Accordingly, as regards prayer (d) is concerned court has to consider declaration qua rejection of Contd.....
4plaintiff's plan by the Municipal Corporation of Delhi and entitlement of plaintiffs to continue the construction in accordance with plans submitted by the plaintiffs. Statement of learned counsel for plaintiffs was also recorded on 29.08.2006 regarding not pressing part of prayer (d).
PLAINTIFF'S CASE
4. As per the case of plaintiffs, plaintiff no. 1 is the co-owner of and in actual physical possession of a plot of land bearing no. 110/22, Jheel Kuranja, Delhi- 110051 and plaintiff no. 2 is the owner of and in actual physical possession of a plot of land bearing no. 111/22, Jheel Kuranja, Delhi-110051. These two plots were let out by plaintiffs to the Municipal Corporation of Delhi in the year 1962 and MCD was running primary school in the suit premises. After issuance of notice of termination of tenancy premises was not vacated by the Municipal Corporation of Delhi. The decree was passed by Ld. Civil Judge on 18.03.1999 in two Contd.....
5separate civil suits i.e. Suit No. 634/1994 and Suit No. 344/1995 filed by plaintiff no 1 and 2 respectively. These suits were decreed by the court of Ms. Kamini Lau, the then Ld. Civil Judge, Delhi. Regular civil appeals no. 59/1999 and 69/1999 were also dismissed by Sh. J.P. Singh, the then Ld. Additional District Judge, Delhi vide order dated 06.01.2000. The second appeal i.e. RSA No. 53/2000 and 54/2000 were dismissed by the Hon'ble High Court vide order dated 20.12.2001. The possession was restored through bailiff with police aid on 05.02.2002. The special leave petition (c) no. 2774/2002 and 2775/2002 were dismissed by the Hon'ble Supreme Court on 18.02.2002.
5. Both the plaintiffs after obtaining possession of plots applied separately to the Commissioner of Municipal Corporation of Delhi for a building permit to erect residential building on the said plots. They submitted the necessary documents alongwith the prescribed fee on 09.05.2002. Defendant no. 1 Municipal Corporation of Delhi are harassing the Contd.....
6plaintiffs on some pretext or the other which has been brought to the notice of higher authorities including legal notice dated 04.03.2002 u/s 80 of the Code of Civil Procedure.
6. There are sixteen primary schools being run by the defendant no. 1 apart from the government schools in close vicinity of the plots of the plaintiffs. Three schools have been closed down by the defendant no. 1 for want of requisite strength of the students. Defendant no. 1 still wants to acquire the plots of the plaintiffs for running primary school. Defendant no. 2 had written letters dated 15.11.2002 and 27.11.2002 to defendant no. 3 for stopping of construction work illegally. The police authorities are not empowered under the Delhi Municipal Corporation Act, 1957 or any other law to stop the construction work at any site having sanctioned plans.
7. On 21.11.2002 plaintiffs have received message from Police Station Geeta Colony for meeting Contd.....
7defendant no. 3. On 22.11.2002 plaintiffs met defendant no. 3 who had shown complaint dated 15.11.2002 received from defendant no. 2 for stopping of construction at the plots of plaintiffs. Plaintiffs have apprised defendant no. 3 about the judicial verdict despite that defendant no. 3 had threatened plaintiffs if they did not refrain from construction activity they would by forced to resort to discontinuance of construction activity and also dispossession from the suit property.
8. The standing committee of the Municipal Corporation of Delhi had approved resolution dated 13.11.2002 recommending acquisition of the suit property for running primary schools. This resolution itself cannot authorize the proposed acquisition and for the resolution to be adopted by the Municipal Corporation of Delhi the same needs to be put to vote in the corporation. On approval, the Commissioner, Municipal Corporation of Delhi has to approach the Central Government for the acquisition of land under Contd.....
8the provision of the Land Acquisition Act, 1894.
9. The plots of plaintiffs are only of 550 Sq. yards each. As per the Planning Norms and Land Use Plan, the area required for establishing and running a primary school is 0.40 hectares per school and 0.20 hectares for school building area. Defendant no. 1 though not allowed to run a primary school on the plots of the plaintiffs as per the Master plan is still continuing with the exercise of acquisition of the plots of the plaintiffs in violation of Master Plan and Delhi Development Act. The exercise undertaken by defendant no. 1 with regard to acquisition of plots of plaintiffs is a misuse of power and not for any public purpose.
10. As defined in Land Acquisition Act, 1894 land can be acquired by Central Government only for public purposes. These plots, even otherwise cannot be acquired as they were allotted to the plaintiffs as a part of scheme to settle refugee members of the Jheel Contd.....
9Kuranja Co-operative Milk Producers Society Ltd. The exercise of defendant no. 1 in passing resolution recommending acquisition of plots of plaintiffs is exercise of power for collateral purposes and extraneous consideration which is contrary to law and not to achieve any public purpose. The defendant no. 1 has affixed posters on the boundary wall of the plots of plaintiffs declaring that the property is to vest in the defendant corporation.
11. Officials of defendant no. 1 and 3 were repeatedly coming to the plaintiffs asking them to vacate the plot stating that they would not be able to resist the corporation in its efforts to forcibly recover possession of the same.
12. The malafide of defendant no. 1 is apparent from its refusal to respond to the applications for building permits submitted by the plaintiffs on 09.05.2002. The applications were not suffering from any infirmity. Vide communications dated 12.09.2002 Contd.....
10and 25.10.2002 the plaintiffs intimated defendant no. 1 of commencing construction and erection of the buildings for which the building permits were sought. Municipal Corporation of Delhi did not respond to applications of plaintiffs submitted on 09.05.2002. Persons propoting to represent defendant corporation came to these plots on 15.11.2002, 20.11.2002 and sought to restrain plaintiffs from continuing with erection of the buildings. These individuals wanted the plaintiffs to discontinue building operations and threatened them not only with demolition but also with dispossession of suit plots.
13. The matter had been reported in the Hindustan Times on 28.11.2002 that the building plans of the plots of the plaintiffs have been revoked and demolition would be undertaken. On 29.11.2002. Officials of Municipal Corporation of Delhi trespassed after opening the lock of wicket on the main gate of plot no. 111/22 and started demolishing the iron rod pillars and masonry work on the plots. The chowkidar Contd.....
11of plaintiffs had informed the plaintiffs and Sh. S.K. Malik uncle of plaintiff no. 2. Sh. S.K. Malik reached the spot and protested the illegal intrusion. These officials demolished the construction. After that group of people gathered at the spot and offending officials with drew. However, plaintiffs were warned that they would not be able to retain possession of their plots and nor complete construction. The Municipal Corporation of Delhi is desperately misusing its power. The plaintiffs have lodged complaint with Police Station Geeta Colony regarding trespass and mischieving committed by Sh. R.K. Singh and Sh. C.P. Singh officials of Municipal Corporation of Delhi.
14. Defendant no. 1 and 2 have passed their resolution no. 389 dated 30.12.2002 despite knowing status of the land which is proposed to be acquired. These lands being nazul / evacuee, both being Central Government properties and as such cannot be acquired under Land Acquisition Act, 1894. The defendants knew it that land in question cannot be Contd.....
12acquired, therefore the rejection of building plans on that ground is illegal, unjustified, unwarranted. As a matter of fact after sixty or ninety days of the receipt of the application for sanctioning of plan defendant no. 1 have no jurisdiction or competence to reject the building plan and particularly when the construction have already been started by the plaintiffs after the compliance of the provisions of the Municipal Corporation of Delhi after giving seven days prior intimation / notice as provided in Delhi Municipal Corporation Act. In case there is no response from the Commissioner of Municipal Corporation of Delhi and it does not refuse to sanction building plan or does not communicate the refusal, the commissioner shall be deemed to have accorded sanction to the building plans and the plaintiffs were free to commence and proceed with the buildings in accordance with the plans submitted.
15. The plots in question were not acquirable under the provision of Land Acquisition Act, since these Contd.....
13were parts of 144 plots of nazul land of Central Government which were originally leased to Muslims Ghosis but after their migration in 1947 were rendered evacuee properties and allotted to M/s Jheel Kuranja Co-operaitve Milk Producers Society Ltd. who intern allotted the plots to its members.
16. The defendant no. 1 and 2 had even earlier made request to Land Acquisition Authorities of Delhi for acquisition of these plots which had declined the proposal and treated it as closed in view of the judicial verdicts. The Land Acquisition Department of National Capital Territory of Delhi had also informed Municipal Corporation of Delhi about nazul land and the question of acquisition did not arise.
17. The plaintiffs have filed replication to WS of defendant no. 1 and 2 reaffirming and reasserting the averments made in the plaint and denying the allegations made in the written statement. It has also been submitted in reply to preliminary objection no. 1 Contd.....
14of WS of defendant no. 1 and 2 that it is matter of record that plaintiffs are sub lessees under Jheel Kuranja Milk Producers Cooperative Ltd. to whom land lease was granted by Delhi Improvement Trust now DDA. The objections regarding ownership of plaintiffs amount to contempt after finality of decisions in civil suit no. 344/1995 and 634/2004. The resolution no. 412 dated 06.09.1966 of defendant no. 1 shows that defendant no. 1 admitted that plaintiffs are the owner of the suit premises. After thorough verification of the documents of the plaintiffs defendant no. 1 had started paying rent for premises in question to the plaintiffs in 1962. This question has been conclusively settled and today such an objection of ownership again amount to contempt of the court. Municipal Corporation of Delhi's Case (Case of Defendant no. 1 and 2)
18. The defendant no. 1 and 2 contested the case and filed their written statement. They have filed Contd.....
15written statement to amended plaint wherein it has been submitted that the plaintiffs have intentionally not disclosed the true facts before the court. Plaintiffs are not owner of the suit property. They are sub-lessees under Jheel Kuranja Milk Producers Cooperative Society Ltd. These plots were part of nazul land which was allotted by Delhi Development Trust under the directions of Government of India, Ministry of Rehabilitation in favour of M/s Jheel Kuranja Milk Producers Cooperative Society Ltd.
19. It has also been submitted that both the plaintiffs are owners of different properties and claiming different rights. Suit is liable to be rejected for misjoinder of parties. Both the plaintiffs cannot join in one suit to avoid payment of necessary court fee. The suit is also hit by non-joinder of necessary parties. Plaintiffs have not joined the persons who allegedly interfere with the possession of the plaintiffs. The suit has not been properly valued for the purposes of court fee.
Contd.....
16
20. The property in dispute was used by the defendant no. 1 Municipal Corporation of Delhi for running primary school in the interest of children and local residents since 1948 to February, 2002. The school was serving educational needs of young children of the area and quality education was being imparted for approximately five decades. The closure of the school has caused difficulty and inconvenience to small children.
21. It has further been submitted that the Municipal Corporation of Delhi has already passed resolution no. 389 dated 30.12.2002 for acquisition of properties no. 110/22 and 111/22 situated at Jheel Kuranja, Shahdara, Delhi for running primary school.
22. It has also been submitted that plaintiffs have not applied properly for the sanction of building plan and in fact they have made the complaint to Commissioner Municipal Corporation of Delhi Contd.....
17regarding non-issuance of no objection certificate by the House Tax Department of Municipal Corporation of Delhi. The alleged applications of the plaintiffs for sanction of their respective building plans were not properly made and ultimately rejected on 25.11.2002. Plaintiffs were informed vide letter no. 40/AE(III)/02/rejection and letter no. 41/AE(III)/02/rejection for the reason that land in question was proposed to be acquired. The property in question is not identifiable property in absence of site plan indicating the location/demarcation of the boundaries of the plots in question.
23. Defendant no. 1 & 2 have also denied that defendant no. 2 is taking any unusual interest to see that plaintiffs are dispossessed from their plots. It is further submitted that plaintiffs cannot be permitted to raise unauthorized construction without obtaining any sanction plan from the competent authority and any unauthorized construction raised by the plaintiffs is liable to be stopped. They have also denied regarding Contd.....
18illegal stopping of construction. It has also been clarified that suit no. 634/1994 was filed by all the co- owners of the plot in dispute jointly.
24. It has also been submitted that the letters dated 09.05.2002 were in fact complaint regarding non-issuance of no objection certificate by the House Tax Department of Municipal Corporation of Delhi. It has further been submitted that these letters were received by the Office of Commissioner on 13.05.2002 and marked to Additional Assessor and Collector who intern marked the same to his lower staff for looking into the complaints of the plaintiffs. From the House Tax Department files were received in the office of Executive Engineer (Building), Shahdara (South) Zone on 31.10.2002. These files were processed and since plots were more than 400 Sq. yards files were sent to Building Department (Headquarters) which was competent to deal with the matters and ultimately plans were rejected on 25.11.2002, after process, for the reason that the property in dispute was proposed Contd.....
19to be acquired as per the Standing Committee's resolution in public interest. The necessary intimation was also sent to Sh. S.K. Malhotra, Architect. The building plans were rejected by the Corporation within the stipulated period after they were received by the competent authorities. The Municipal Corporation of Delhi is competent and free to take steps in accordance with law in public interest. It has been denied that defendant no. 1 has any malafide intention or is misusing its powers to divest the plaintiffs' plots in dispute. Running and maintaining of the primary schools from the plots in dispute is necessary in the larger public interest. Merely because the plaintiffs have got possession of the plots in question does not enable them to raise unauthorized construction without obtaining any sanction from the competent authority.
25. No building can be constructed for which the sanctioned plans have been rejected by the Municipal Corporation of Delhi. Plaintiffs cannot be permitted to raise unauthorized construction without Contd.....
20obtaining any sanction plan from the competent authorities as the plans have already been rejected on 25.11.2002. It has been denied that any threats were extended by the officials of the Municipal Corporation of Delhi. The unauthorized construction raised by plaintiffs on the plots in dispute were demolished by the Municipal Corporation of Delhi with the help of police on 29.11.2002. Plaintiffs are trying to distort the true and correct facts and conceal the factum of demolition of unauthorized construction by the MCD in accordance with law. It is also denied that defendant no. 1 is trying to dispossess the plaintiffs from their plot in question without due process of law. The Municipal Corporation of Delhi has already initiated proceedings for acquisition of property in accordance with law. It is also denied that Municipal Corporation of Delhi has intended to dispossess the plaintiffs from the plots in disputes without due process of law or defendant is acting in any high handed or malafide or ultravires manners. The Municipal Corporation of Delhi had sent a proposal for allotment of these properties for running Contd.....
21the school which is under consideration. Plaintiffs are trying to create confusion by using the terms acquisition. It is settled law that MCD cannot of its own start the acquisition proceedings. These are done by Union of India / Government of India. The Municipal Corporation of Delhi can also send proposal for allotment of the property for some purpose in their favour. In the instant case Municipal Corporation of Delhi has sent the proposal for allotment of these plots for running a school which is under consideration. SHO PS Geeta Colony's Case (Case of defendant no. 3)
26. The defendant no. 3 has filed written statement and contested the case interalia on the grounds that on 29.11.2002 Sh. R.K. Singh, AE MCD alongwith Sh. C.B. Singh, JE MCD came to the Police Station, Geeta Colony and requisition police force for carrying out demolition at property no. 110/22 and 111//22 Jheel Kuranja, Delhi on the request of these Contd.....
22officials of MCD S.I. Harpal Singh alongwith other staff was deputed to ensure that no untoward incident take place and demolition be carried out peacefully. S.I. Harpal Singh came back to the police station and got recorded DD No. 37 B dated 29.11.2002 wherein he recorded that the demolition was carried out peacefully and no untoward incident took place. The allegations made in the plaint have been denied. The demolition activity was carried out as per the requisition of Municipal Corporation of Delhi. ISSUES
27. The following issues were framed vide order dated 21.04.2004 passed by Ld. Predecessor of this court:
1. Whether the plaintiff is entitled to a decree of declaration that approving of resolution by MCD dated 13.11.2002 for acquisition of plot no. 110/22 and 111/22, Jheel Kuranja, Delhi was not in accordance with process of law? OPP
2. Whether the plaintiffs were entitled for permanent injunction against the defendants as claimed in the Contd.....23
suit against interfering of the defendants into possession of the plaintiff?OPP
3. Whether the building plan submitted by the plaintiffs for suit plot no. 110/22 and 111/22 with the MCD are deemed to be sanction in terms of Section 337 of MCD Act? OPP
4. Whether the suit filed by the plaintiffs was bad for misjoinder of parties? OPD
5. Whether the suit has not been properly valued for the purpose of court fees and jurisdiction? OPD
6. Whether the defendants had authority to pass any demolition order in respect of the above property? OPD
7. Relief.
ADDITIONAL ISSUES
28. The following additional issues were framed vide order dated 29.08.2006:
6A Whether the plaintiff is entitled to relief of declaration that the rejection of plaintiff's plan by MCD is illegal unjustified, unwarranted and against the provisions of law?
6B Whether the plaintiff is entitled to continue the construction in accordance with plans submitted by plaintiffs? OPP
29. The plaintiffs have examined five witnesses.
Contd.....
24PW 1 Sh. Inder Mohan Dawar, Plaintiff no. 1, PW 2 Sh. Prem Prakash, Plaintiff no. 2, PW 3 Sh. Sohan Lal Malik, who is uncle of plaintiff no. 2 (plaintiff no. 2 is nephew of PW 3, plaintiff no. 2 is son of late Sh. Moti Ram elder brother of Sohan Lal Malik, Plaintiff no. 3) PW 4, Sh Shambhu Singh, Chowkidar employed by both the plaintiffs on suit property. PW 5 Sh.Tej Pal Singh from Land and Building Department NCT of Delhi.
30. Defendant no. 1 and 2/MCD have examined four witnesses, DW 1 Sh. D.K. Jain, DW 2 Sh. N.K. Sharma, DW 3 Sh. R.K. Gupta, Executive Engineer Building, Shahdara South Zone/MCD and DW 4 Sh. M.M. Dahiya, Executive Engineer (Building) Headquarter.
31. I have heard Sh. Pramod Jalan, Advocate Ld. Counsel for plaintiffs and Sh. Umesh Gupta, Advocate Ld. Counsel for defendant no. 1 and 2/MCD and carefully perused the record. No one has argued on behalf of defendant no. 3, SHO PS Geeta Colony. I Contd.....
25have given my considerable thought to the submissions putforth by learned counsel for parties and carefully gone through the record as well as the authorities relied by learned counsel for parties.
32. Learned ounsel for plaintiff has relied on the following authorities:
1. Dhulabhai and Others Vs. The state of Madhya Pradesh and Another, (1968) 3 Supreme Court Reports 662
2. Church of North India Vs. Lavajibhai Ratanjibhai and Others, (2005) 10 Supreme Court Cases 760
3. Sopan Sukhdeo Sable and Others Vs. Assistant Charity Commissioner and Others, AIR 2004 Supreme Court 1801
33. Learned counsel for defendant no. 1 and 2 has relied upon the following authorities:
1. Prabhu Dayal Vs. MCD and Another, 90 (2001) Delhi Law Times 710
2. Raghbir Singh and Others Vs. Municipal Corporation of Delhi and Another, AIR 1932 Delhi 558
3. Union of India Vs. D.S. Bajaj, AIR 1955 Punjab 122 Contd.....26
34. My findings on various issues are as under:
1.0 Procedure for obtaining Building Permit 1.1 How to apply
(i)Every person who intends to erect or re-erect or make alterations in a building shall give notice in writing in the prescribed Form No. 1 (please see Appendix 'A')and such notice shall be accompanied by the following:-
(ii)Copies of Plans and Statements - Normally 4 copies of Plans and Statements shall be made available along with the notice. In case of building schemes, where clearance is required from Delhi Fire Service, the number of the copies of the Plans and Statements accompanying the notice shall be 6. In case of schemes requiring clearance of Delhi Urban Art Commission, the number of copies shall be 8 and in addition special drawings and model, as desired by Delhi Urban Art Contd.....27
Commission shall be made available. In case of sites requiring the clearance of Land & Development Office, 9 copies of the Plan shall be made available.
(iii)............................
(iv)............................
(v)............................
(vi)............................
(vii)............................
(viii)............................
(ix) Documents required to be submitted along with Building Plan application
(a) .......................................
(b) .......................................
(c) .......................................
(d) .......................................
(e) .......................................
(f) .......................................
(g) .......................................
(h) ....................................... (I) .......................................
(j) .......................................
(k) N.O.C. from House Tax Department
(i) .......................................
(m) .......................................
(n) .......................................
Contd.....
28
(o) .......................................
(p) .......................................
"1.2 Where to apply for Sanction of Building Plans Building Plan applications on prescribed Forms duly filled in and signed by Registered Architect/Engineer/ Supervisor and the owners along with the prescribed documents in respect of residential plots up to 334.44 sq.m. (400 sq. yds. only) should be submitted Zone Wise in the office of Executive Engineer (Bldg.) on any working day upto 2-00 P.M. Building Plan application for residential buildings of plot area exceeding 334.44 sq.m. (400 sq. Yards), Farm houses and all non-
residential plots, should be submitted in the Building Department (Head Quarter), Room No. 112, Town Hall, Delhi on any working day upto 2-00 P.M. Except Tuesday, the day of single window service. Facility is available for submission of Building Plans in single window service in all Zones as well as in Building Head Quarter."
1.5 4. Procedure for obtaining Revalidation building permit:
Contd.....29
The building permit can be revalidated for a period of one year at a time from the date of expiry of the validity of the original permit on payment of the required revalidation fees. Application for such revalidation shall be submitted on plain paper along with following documents: -
(a) .......................................
(b) .......................................
(c) .......................................
(d) NOC from House Tax Deptt. Of M.C.D.;
(e) .......................................
(f) .......................................
35. An application under VII Rule 11 CPC dated 22.7.05 moved by defendant through counsel is also pending but this application has not been pressed as the question raised in this application has also to be decided in the main suit. This application stands dismissed as not pressed and the controversy raised in this application shall be decided while deciding the main suit.
Issue No. 1 Whether the plaintiff is entitled to a decree of Contd.....
30declaration that approving of resolution by MCD dated 13.11.2002 for acquisition of plot no. 110/22 and 111/22, Jheel Kuranja, Delhi was not in accordance with process of law? OPP
36. Onus to prove this issue is on the plaintiff. This issue is regarding declaration that approval of resolution by MCD dated 13.11.2002 for acquisition of plot no. 110/22 and 111/22 Jheel Kuranja, Delhi was not in accordance with process of law. Since it has been brought on record that MCD had requested DDA for requisition of the suit plot, however, DDA vide Ex. PW- 5/4 had declined to issue no objection certificate for the acquisition of the suit plots, therefore, PW 5 Sh. Tej Pal Singh from Land & Building Department NCT, Delhi had deposed that Sh. Lal Singh Dy. Secretary (LA) Government of NCT of Delhi Land and Building Department NCT, Delhi had written a letter to the Dy. Commissioner (Land and Estate) Department, MCD, Town Hall, Delhi which is Ex. PW- 5/5. Ex. PW- 5/4 is letter from Dy. Secretary (LA) Government of NCT of Delhi to Assitt. Education Officer, Education Department, MCD which was marked to Secretary Land and Building Contd.....
31Department Government of NCT, Delhi having reference no. TN 2(67/2000)/32 dated 29.01.2004. In these circumstances since no objection certificate has not been issued by the DDA as per Ex. PW- 5/4 dated 29.01.2004 and Ex. PW- 5/5 dated 08.04.2004. as per Ex. PW- 5/4 from Dy. Director, (Lands) addressed to Assitt Education Officer, MCD it has been mentioned that no objection certificate at this stage cannot be issued as the possession has already been delivered to Jheel Kuranja Milk Producers Cooperative Society Ltd. for 99 years in the year 1950. As per Ex. PW- 5/5 from Dy. Secretary (LA) addressed to Dy. Commissioner, (Land & Estate Department), MCD was informed regarding Ex. PW- 5/4.
37. Learned counsel for plaintiff has submitted that procedure for acquisition has to be adopted, request has to be routed through DDA for acquisition if property is not mentioned in master plan. It is evacuee property hence cannot be acquired. It has also been submitted that DDA has refused to give no objection Contd.....
32certificate for acquisition which has also been supported by PW 5 Tej Pal Singh. Learned counsel for defendant has submitted that before starting acquisition proceedings MCD has to decide, need of land for specific purpose and after that resolution is being passed from Standing Committee, only then they proceed further with Land & Building for acquisition. Standing Committee passed a resolution for acquisition. It was administrative function of Standing Committee, therefore, no interference of court is called for. No declaration can be granted regarding resolution. Even otherwise refusal of no objection certificate by DDA is there.
38. In the facts and circumstances of the case the authority relied by learned counsel for defendant no. 1 & 2 Union of India Vs. D.S. Bajaj, (supra) is not disputed. Learned counsel for plaintiff has submitted that this authority is not applicable. He has submitted that wherever rights are affected person has remedy before Civil Court until and unless barred by statute. In Contd.....
33case of plaintiff there are no disputed facts. Mandatory injunction is different from declaration. When land cannot be acquired for want of no objection certificate declaration would lie.
39. The perusal of record and testimony of defendant's witnesses especially DW 1 Sh. D.K. Jain supports that the plot was part of nazul land which was allotted by Delhi Development Trust under the directions of Government of India, Ministry of Rehabilitation in favour of M/s Jheel Khuranja Milk Producers Society Ltd. The plots bearing no. 110/22, 111/22, Jheel Kuranja, Delhi-110051 were being used by MCD for the purpose of running primary school in the interest of children and local residents since 1948 to February 2002. This school was serving the educational needs of the young children of the area. Quality education was being imparted for approximately five decades. Children from lower strata had immensely benefited from this school. The closure of this school has caused immense difficulties and inconvenience to Contd.....
34the small children. The small children of the locality are required to study in the schools which are situated at a distance of about one KM from their residence. Therefore, in the interest of small school going children, it is necessary to run and maintain the school at the site in dispute.
40. It has further been deposed by DW 1 Sh. D.K. Jain that MCD had proposed to acquire the land in dispute for the purposes of running and maintaining the primary school for which MCD had already passed resolution no. 389 dated 30.12.2002 for acquisition of suit properties. During the course of his cross- examination he has deposed that MCD had requested DDA and Land and Building Department, Delhi for acquisition of suit plots. He has denied the suggestion that MCD being aware of the legal position that the suit plot cannot be acquired is still continuing with exercise with malafide intention.
41. DW 2 Sh. N.K. Sharma, has also corroborated Contd.....
35testimony of DW 1. He has also deposed in his examination in chief that MCD is competent and free to take steps in accordance with law in public interest. He has deposed during the course of his cross examination if for any public interest concerning his zone and for that a property is to be acquired for public interest then his zone is required to process for acquisition of property as per law. He has answered the question put to him regarding procedure for acquisition of immovable properties by MCD that it is legal question and he is enable to reply the same. He had also deposed that he do not what whether the request of MCD to the Land & Building Department, Government of NCT of Delhi for the acquisition of plots was declined by these departments and also by DDA.
42. DW 3 R.K. Gupta has also corroborated testimony of DW 1 and DW 2 regarding requirement of the school and passing of resolution no. 389 dated 30.12.2002. This witness was concerned with only demolition action. He has deposed that whenever Contd.....
36unauthorized construction is noticed, show cause notice is given to the parties to demolish the unauthorized construction. Moreover if the unauthorized construction is at the initial stage it can be demolished without giving any notice to the party.
43. PW 5 Sh. Tej Pal Singh has deposed regarding Ex. PW- 5/1 i.e. letter dated 04.04.2003 from Dy. Commissioner Land & Estate Department, MCD addressed to the Dy. Secretary (L&B), Government of NCT of Delhi wherein it has been mentioned that Director (Primary Eduction) vide his letter dated no. D891/DEO/CW/03 dated 11.03.2003 had intimated that the Standing Committee vide its resolution no. 389 dated 30.12.2002 had approved the proposal for acquisition of land for Municipal Corporation, Primary School, Jheel Khurenja Plot nos. 110/22 and 111/22. The acquisition proceeding is to be initiated by invoking emergency provision of Land Acquisition Act, u/s 17b. The Dy. Secretary (L&B), Government of NCT of Delhi vide this letter was requested to initiate the Contd.....
37proceedings of acquisition u/s 4.6 and 17 of Land Acquisition Act on utmost priority so that the notification could be issued at once. It has also been mentioned in this letter to inform the amount of compensation as payable to the owners at the earliest.
44. PW 5 Sh. Tej Pal Singh has also proved letter dated 16.07.2003 from Secretary (L&B), Government of NCT of Delhi addressed to Pr. Commissioner (LM) II DDA, Vikas Sadan wherein it has been mentioned that the issue was examined by Land and Building Department of Government of NCT of Delhi and reply was sent to Dy. Commissioner Land & Estate Department, MCD requesting him to route their proposal through DDA as per existing instructions of Lt. Governor that all non-plan acquisitions in future will be routed through DDA by the concerned department. Copy of that was also endorsed to Director (LM) HQ, DDA vide letter dated 23.05.2003. It has further been mentioned in this letter that Minister for Urban Development, Government of Delhi had desired that Contd.....
38the acquisition proceedings in respect of that land be completed at the earliest. The owners of that land Brigadier Inder Mohan Dawar and Sh. Prem Prakash had represented that the said plot of land should not be acquired as these were allotted to Jheel Kuranja Milk Producing Society on 90 years lease by the DDA for which they were the members. It has further been mention in this letter dated Ex. PW- 5/2 that primary school was running in Jheel Kuranja on these two plots bearing khasra no. 110/22 (11 biswa) and 111/22 (11 biswa). The owners claimed these two plots of land from MCD and when MCD refused to handover the plots of land, they moved to the High Court for obtaining possession. On orders of the Hon'ble High Court, the possession was restored to the owners. Originally 144 plots including these two plots were an evacuee property which were transferred to DDA by the Government of India, Ministry of Rehabilitation vide letter dated 14.03.1950. Further vide resolution no. L/27/36-50 of Delhi Improvement Trust all the 144 plots including these two plots were allotted to Jheel Kuranja Contd.....
39Milk Producing Society on lease basis for 90 years. It has further been mentioned in this letter date that issue is that whether these two plots can be acquired by the Land and Building Department for establishment of MC Primary School and if the report is in affirmative, an no objection certificate to acquire the land may be furnished.
45. PW 5 Sh. Tej Pal Singh further produced copy of letter dated 27.02.2004 Ex. PW- 5/3 from Dy. Secretary (LA) Land & Building Department, Government of NCT of Delhi addressed to the Director (LM) HQ DDA regarding issuance of no objection certificate for acquisition of these plots. By way of this letter representation from Inder Mohan Dawar and Prem Prakash against proposed acquisition of land falling in khasra no. 110/2 and 111/22 in Jheel kuranja, Delhi was enclosed. It has also been requested in this letter for issuance of NOC for acquisition of this land on behalf of DDA being Non Plan Scheme.
Contd.....
40
46. Ex. PW- 5/4 is yet another letter dated 29.01.2007 which has been produced by this witness PW 5. This letter is from Dy. Director (Lands) Delhi Development Authority, Vikas Sadan addressed to The Assistant Education Officer, MCD, Delhi Education Department, Shahdara South, Kranti Nagar, Delhi wherein it has been mentioned that since as per the revenue record and as it is stated that the land under reference was placed for management and control with DDA by Ministry of Rehabilitation, Government of India and subsequently it was leased/transferred to the Jheel Kuranja Milk Producing Society Ltd. for 90 years in the year 1950, it will not be feasible at this moment to interfere with the possession already delivered to that society. Hence NOC at this stage cannot be issued.
47. The letter Ex. PW- 5/5 dated 08.04.2004 is from Deputy Secretary (LA) Government of NCT of Delhi addressed to the Deputy Commissioner (Land & Estate Department), MCD, Town Hall, Delhi informing that the DDA had informed regarding the fact that Contd.....
41NOC cannot be issued and in view of the same acquisition proceedings cannot be initiated by Land & Building Department. It is pertinent to mention that the enclosures mentioned in these letter especially Ex. PW- 5/2, Ex. PW- 5/3, Ex. PW- 5/5 etc. have not been placed on record.
48. During the course of cross examination PW 1 Inder Mohan Dawar has deposed that the land in question was nazul land. However, he has further deposed that it was also evacuee land which was given on lease for 90 years to M/s Jheel Kuranja Milk Producers Cooperative Society. Regarding evacuee property no question was put to the witness even though he has answer. He has also deposed that primary school was running at the land since 1962 and they got possession in February, 2002. He has deposed that school was not being run in public interest at all and children do not face difficulty due to closure of the school and there are plenty number of schools in the area.
Contd.....
42
49. PW 2 Sh. Prem Prakash has also deposed that the property in question was nazul land. He further volunteered that it was rendered evacuee and after it was allotted to the society. He has admitted that the allotment of property was done in the name of Jheel Kuranja Milk Producing Society. It was taken by MCD on rent w.e.f 15.07.1962 and remained with MCD upto 05.02.2002 and MCD had been running primary school on the plot in dispute.
50. I have also carefully perused Ex. PW- 1/16 which shows item no. 40 acquisition of property no. 110/22 and 111/22 Jheel Kuranja, for running primary school this is mentioned as part A postpone cases. It has reference to commissioner's letter no. F.33/P.Edu/1642/C&C dated 16.07.2002 wherein it has been mentioned after giving details including the previous litigation that in view of dispossession of MCD from the plots in question all the 172 children studying in this school have been shifted in the near by M.C. Contd.....
43Primary School, Rajgarh. No alternative site is available for running the school in vicinity, therefore, there is no option but to acquire the aforesaid school site through due process of law. The MCD will have to bear the cost of acquisition which shall be intimated by the LAC in due course. Approval of Mayor for acquiring of these plots had been obtained in anticipation of approval of Corporation. The proposal of acquisition of these plots nos. 110/2 11/22 Jheel Kuranja, Delhi-110051 for approval before the corporation routed through the Education Committee and Standing Committee as an item of urgent business.
51. Further in this Ex. PW- 1/16 at page 3 annexure 'B' it is item no. 5 wherein payment of rent for these plots has been mentioned. In item no. 5(v) it has been mentioned that land in question was evacuee property under the charge of the Government and therefore, the rent payable, if any, was to be paid to the Government after setting terms with it. In item 5(vi) referring Commissioner's letter no. 525/C&C dated Contd.....
4419.06.1965 it has been mentioned that the Manging Officer Government of India, Ministry of Rehabilitation had intimated that the evacuee rights in plots in Jheel kuranja have been surrendered in favour of DDA.
52. In copy of resolution no. 389 dated 31.12.2002 of MCD as Urgent Business no. 136 regarding acquisition properties no. 110/22 111/22 for running a Primary School after giving all details/history of litigation etc. it has further been mentioned that in view of dispossession of MCD from the plots in question all the 172 children studying in this school have been shifted to M.C. Primary School, Rajgarh and there is no alternative site available for running the school vicinity. There is, therefore, no option but to acquire the aforesaid school site through due process of law. The MCD will have to bear the cost of acquisition which shall be intimated by LAC in due court. Approval of Mayor for acquiring these plots and been obtained in anticipation for approval of Corporation. This proposal was submitted for approval before the Corporation Contd.....
45routed through Education Committee and the Standing Committee as an item of Urgent Business. Here also the annexure 'B' is copy of resolution no. 412 dated 06.09.1966 of the Corporation regarding payment of rent for these plots. Alongwith this annexure 'B' mention on page 5 of this resolution no. 389 dated 31.12.2002 at serial no. (ii) and (iii) Resolution no. 34 of Education Committee dated 06.08.2002 and resolution no. 639 of the Standing Committee dated 23.10.2002 have been mentioned. Education Committee's resolution is regarding recommendation to the corporation through Standing Committee proposed by the Commissioner in his letter dated 16.07.2002 for approval of ex-post facto sanction to the proposal for acquisition of property no. 110/22 and 111/22 Jheel Kuranja, Shahdara for running Primary School. Resolution no. 639 of the Standing Committee dated 23.10.2002 is also for acquisition of this property for running Primary School.
53. It is also the case of defendant MCD in its Contd.....
46written statement that plaintiffs are trying to create confusion by using the term 'acquisition' again and again. The MCD cannot of its own start the acquisition proceedings. These proceedings are done by Union of India / Government of India. The MCD can only sent proposal for the allotment of property for some purpose in their favour. In this case the MCD had sent the proposal for acquisition of these plots for running a school and these proposals are under consideration.
54. From all this discussion, it is clear that the argument of learned counsel for plaintiff that it was evacuee property and cannot be acquired is not tenable. However, it is the admitted case that the land was transferred through Delhi Improvement Trust and the Jheel kuranja has been surrender in favour of DDA. The case of defendant is strong that it is for the MCD to decide need for land for specific purpose and after that resolution is being passed from Standing Committee only then they can proceed further with land and building department for acquisition. In this Contd.....
47case the MCD had felt need for this land for running M.C. Primary School which was closed as they were dispossessed after prolonged litigation and the school was running at the property for about five decades i.e. from 1962 to February, 2002. These 172 children studying in this school were shifted to M.C. Primary School, Rajgarh. Running of MCD school in the vicinity for comfort and interest of the children of the lower strata of the locality was the public purpose. It was in public interest. From all these proceedings i.e. proposal which has been routed through Education Committee the Standing Committee having approval of Mayor cannot be termed as abuse of process of law.
55. In my considered view there was no such abuse of process of law. Moreover, I am also in agreement with arguments of learned counsel for defendant that it was purely administrative function of the MCD and court cannot interfere. Judgement titled Union of India Vs. D.S. Bajaj (supra) also supports the case of defendant. The arguments of learned counsel Contd.....
48for plaintiff that this judgement is purely for administrative function is not tenable. He has submitted that wherever rights are affected person has remedy before Civil Court until and unless barred by statute. He has also submitted that mandatory injunction is different from declaration. He has further submitted that when land cannot be acquired for want of NOC declaration would lie. I am of the considered view that argument of learned counsel for plaintiff to this extent wherever rights are affected person has remedy before Civil court until and unless barred by statute is tenable. However his argument that when land cannot be acquired for want of NOC declaration would lie, it is clear that there is no abuse of process of law after going through Ex. PW- 5/1 to Ex. PW- 5/5 which have already been discussed. Alongwith that I have already discussed Ex. PW- 1/16 and copy of resolution no. 389 dated 31.12.2002 of the Corporation. In view of the above said discussion I am of the considered view that since there is no abuse of process of law in approval of this resolution it was Contd.....
49bonafide on the part of Corporation for initiating process for acquisition with due process of law.
56. It is pertinent to mention that as per the list of documents filed on behalf of plaintiffs dated 13.1.2002 before the High Court at serial no. 12 copy of resolution approved on 13.11.2002 by Standing Committee of defendant no. 1 at page no. 111-123 has been mentioned. This has been perused but in this there is no such resolution which is resolution approved on 13.11.2002 by Standing Committee of defendant no. 1. It mentions regarding item no. 140 referring commissioner's letter dated 16.07.2002. Item no. 5 which is annexure 'B' and is copy of resolution no. 412 dated 06.09.1996 of the Corporation and minutes of meeting of Standing Committee dated 23.10.2002 wherein in para A postpone cases item no. 140 regarding property no. 110/22 and 111/22 Jheel Kuranja, Shahdara (South) for running Primary School as resolution no. 639 for recommendation to the Corporation as recommended by the Education Contd.....
50Committee vide its resolution no. 34 dated 06.08.2002, ex-post facto sanction to the proposal of the commissioner contained in this letter dated 16.7.2002 for acquisition of above said property for running of Primary School has been mentioned. This resolution no. 639 mentioned in part 'A' postpone cases has been mentioned in page 117 of the list of documents which has later on being numbered as 119. In this part A postpone cases item no. 140 and resolution no. 639 has been mentioned as under:
"Item No. 140:- Acquisition of Property Nos. 110/22 and 111/22, Jheel Kuranja, Shahdara (South) for running a Primary School."
"Resolution No. 639 of the Standing Committee dated 23.10.2002 Resolved that it be recommended to the Corporation through the Standing Committee that as proposed by the commissioner in his letter No. F.33/P. Edu. / 1642/ C&C dated 16.7.2002, approval of ex post facto sanction to the proposal for acquisition of Property Nos. 110/22 and 111/22, situated at Jheel Kuranja, Shahdara fur running the primary school, be accorded."
Contd.....
51
57. All these have already been discussed in the preceding paragraphs as such there is no other resolution which could be placed on record dated 13.11.2002 approved by standing committee of defendant no. 1 MCD. Accordingly, this issue is decided against the plaintiff and in favour of defendant.
Issue no.2 Whether the plaintiffs were entitled for permanent injunction against the defendants as claimed in the suit against interfering of the defendants into possession of the plaintiff?OPP
58. Onus to prove this issue is on the plaintiff. Both the plaintiffs have duly proved regarding their possessory right in plot no.110/22 and 111/22 Jheel Kuranja and the premises was vacated after prolonged previous litigation through bailiff with the help of police aid. In these circumstances the defendants have no right to interfere with regard to possession in the suit property i.e. 110/2 and 111/22, Jheel Kuranja, Delhi 110051.
Contd.....
52
59. Even though the issue is specific regarding permanent injunction against defendant qua possession of the plaintiffs but the prayer (c) in the plaint mentions regrading permanent injunction against defendants qua development and building operation be carried by plaintiffs on plot no. 110/22 and 111/22, Jheel Kuranja, Delhi - 110051. There is no specific issue framed in this regard but this prayer (c) is also covered with issue no. 6B which is regarding entitlement of plaintiffs to continue the construction in accordance with building plans submitted by plaintiffs. Therefore, this shall be decided while deciding issue no 6B.
60. Regarding possession also learned counsel for plaintiff has submitted that MCD had for the first time by communicating regarding rejection vide communication dated 05.11.2002 rejected on the ground that rejection is on the ground that plots are intended to be acquired. Despite reminders MCD Contd.....
53failed to communicate about the rejection / sanction of building plans.
61. Ld. counsel for defendant has submitted that possession of property is with plaintiff, however, MCD can check building activities in private property and if any encroachment has been done MCD has to remove encroachment as well as to remove unauthorised construction. He has submitted that encroachment has to be as per section 321 and 322 of the DMC Act wherein it can be without notice also and even u/s 345Aof DMC Act, MCD can seal. He has also submitted that MCD can demolish unauthorised construction u/s 343 of the DMC Act, 1957.
62. Here in the instant case since plaintiffs are in the possession, there is no threat as on record regarding interference on behalf of defendant or any other defendant qua possession of the plaintiffs. This issue is accordingly decided in favour of the plaintiff and against the defendant.
Contd.....
54Issue no. 3, 6A and 6B Whether the building plan submitted by the plaintiffs for suit plot no. 110/22 and 111/22 with the MCD are deemed to be sanction in terms of Section 337 of MCD Act? OPP 6A Whether the plaintiff is entitled to relief of declaration that the rejection of plaintiff'splan by MCD is illegal unjustified, unwarranted and against the provisions of law?
6B Whether the plaintiff is entitled to continue the construction in accordance with plans submitted by plaintiffs? OPP
63. I shall decide issues no. 3, 6A and 6B together as they are interconnected. Onus to prove issue no. 6A has not been specified inadvertently, however, the language of he issue is clear that onus is on the plaintiff to prove this issue. Therefore. Onus to prove all these three issues is on the plaintiff.
64. Ld. counsel for plaintiff has submitted that application of plaintiff's dated 09.5.2002 was received by MCD on 13.05.2005. These were two separate applications of both the plaintiffs which have been Contd.....
55proved as Ex. PW- 1/9 and Ex. PW- 2/5 respectively. Alongwith these applications enclosures were also filed. No defect has been pointed out by defendant. Even no such defect has been mentioned in the written statement. If there was any deficiency why the MCD did not communicate for deficiency. It has further been submitted that Ex. PW- 1/9 and Ex. PW- 2/5 the applications are if complaints as per the defendant then why the complaints were not dismissed but on the other hand plans were rejected u/s 337 DMC Act, 1957. Total period of 60 days plus 90 days i.e. 150 days within which Commissioner could have withheld approval of the plan after that the plan deemed to be sanctioned. He has also submitted that Ex. PW- 1/12A is dated 22.10.2002 and Ex. PW- 2/8A is also dated 22.10.2002 These are the communications from both the plaintiffs addressed to Commissioner MCD mentioning that they had decided to start their construction work. Wherein they have also mentioned that the plan in question is deemed to have been passed and they can start construction work as per the plan. These letters have Contd.....
56been received by defendant on 24.10.2002 and Ex. PW- 1/12B and Ex. PW- 2/8B communication from both the plaintiffs addressed to the Commissioner MCD wherein they have communicated to the defendant department that after the prolonged delay they have decided to start the construction work w.e.f. 01.11.2002. these are dated 25.10.2002. Ld. counsel for plaintiff has further submitted that commissioner could have withheld sanction by 13.10.2002 and w.e.f 14.10.2002 plans are deemed to be sanctioned. However, the rejection letter Ex. PW- 1/18 and Ex. PW- 2/10 dated 25.11.2002 have mentioned regarding rejection by Executive Engineer, (Building) vide his order dated 25.11.2002. The copy of this rejection has been sent to Mr. S.K. Malhotra, Architect from the plaintiffs also. The rejection letter mentions that the property was proposed to be acquired as per the Standing Committee resolution for public interest. The building plan application has been rejected by the Executive Engineer HQ vide his order dated 25.11.2002. Ld. counsel for plaintiff has further submitted that Contd.....
57building plan has been rejected u/s 337DMC Act and not u/s 336 DMC Act. He has also referred to para 10 of written statement wherein it has been mentioned that building plan was received on 13.05.2002.
65. Ld. counsel for defendant has submitted that alleged application of both the plaintiffs i.e. PW- 1/9 and Ex. PW- 2/5 of plaintiff no. 1 and plaintiff no. 2 respectively are actually sought of complaint. In these applications plaintiff themselves admit requirement of no due certificate of house tax department. He has also referred to affidavit of DW 2 and DW 3. On page 5 of affidavit of DW 1, it has been mentioned that Shahdara, South Office had received the application on 31.10.2002 and sent to building head quarter which case rejected on 25.11.2002. Ld. counsel for defendant has relied on authority titled Raghbir Singh and Others Vs. Municipal Corporation of Delhi and Another, (supra). He has submitted that deemed sanction has to be considered u/s 337 DMC Act.
Contd.....
58
65. Ld. counsel for plaintiff has submitted that there is no evidence apart from affidavit that period of deemed sanction will start from 31.10.2002 he has also submitted that original file was not produced. The best evidence was never came before the court and none of the four witnesses who had dealt with the files of plaintiff were examined. Sanjay Jain has not been brought to the witness box. He has also submitted that section 337 DMC Act. does not mention regarding procedure of file movement/time consumption. Even though Sanjay Jain has not been produced, however, DW 4 M.M. Dahiya has duly proved regarding rejection and identified signature of Sanjay Jain on Ex. PW- 1/18 and Ex. PW- 2/10, the orders of rejection and has deposed that Sanjay Jain had been working with him as Assistant Engineer. There was no requirement for anything specific for treating deemed sanction from 31.10.2002 even if original file has not been produced. But it is the plaintiffs who have proved various documents of the MCD on their own. Meaning thereby that these documents were not disputed.
Contd.....
59Once the document are not disputed non-production of original file is immaterial. Not an iota of evidence is on record no suggestion have been put to the defendant witness regarding non-receipt of file in the office of Executive Engineer, Building, Shahdara, South on 31.10.2002.
66. From all this it is clear that as per the case of plaintiff Ex. PW- 1/9 and Ex. PW- 2/5 are two separate applications of plaintiff no. 1 and 2 which are dated 09.05.2002 and these have been received in office of commissioner on 13.5.2002 and plans were rejected on 25.11.2002. From perusal of Ex. PW- 1/8 and Ex. PW- 2/5 it is clear that no dues for house tax department has not been deposited alongiwth these alleged applications because as per the case of defendant these were complaints for non issuance of no dues certificate from house tax department. From Ex. PW- 1/9 and Ex. PW- 2/5 there is admission of plaintiffs that there is requirement of no dues certificates from house tax department for the purpose of application for Contd.....
60sanction of plan. DW 1 in para 10 of his affidavit on page 5 has deposed that these are in fact complaints which are received in office of commissioner on 13.5.2002 and plans were rejected on 25.11.2002 for want of no dues from house tax department. Case cannot be covered under deem sanction. As per building bye law 6.1 Delhi Building Bye Laws 1983 notice has to be given to the authority mentioning intention of person to erect, re-erect or make alterations in any make of building or demolish any building the notice has to be as per appendix 'A' and such notice shall be accompanied by plans and statements in sufficient copies as per bye law 6.1.1, 6.2, 6.3.
67. Appendix A is as under:
"APPENDIX 'A' (Bye-law No. 6.1) Form for First Application to Erect, Re-erect or to Make Material Alteration in any Place in a Building To The Commissioner, Municipal Corporation of Delhi New Delhi Contd.....61
Sir, I hereby give notice that I intend to erect/re- erect/demolition or to make alteration in the Building No. .............................or to...................... or/in Block No. ................... House No. ....................... situated at .................................... Scheme ............................. and in accordance with the Building Bye-laws of Delhi, Bye- law No. .......................... AND I forward herewith, the following plans and specifications duly signed by me and ............................... (name in block letters), the Licenced Architect / Engineer / Supervisor / Group- Licence No. ...................... who have prepared the plans, designs etc. and who will supervise its erection and a copy of other statements/documents (as applicable):
1. Site Plan
2. Building Plan
3. Service Plan
4. General Specifications (in attached form)
5. Ownership Title
6. Attested copy of Receipt of payment of application fee
7. Other documents, as required I request that the construction may be approved and permission accorded to me to execute the work.
Signature of Owner......................... Name of Owner...............................
(in block letters) Address of Owner............................
............................
............................
Dated ..............."
Contd.....
62
68. As per chapter 6 of Delhi Building Bye Law there are instructions and guidelines for building permit and completion certificate in MCD. These are called under bye law 1.1(i). It is also similar notice as under
bye laws 6.1 of Chapter 2 of Delhi Building Bye Laws. In chapter 6 Delhi Building Bye Laws the building bye law 1.1 (ix) mentions regarding requirement of documents to be submitted alongwith building plans application.
At serial no. (k) NOC from House Tax Department is also one of the documents mentioned for submitting alongwith building plan application. Bye law 1.2 specifies as to where to apply for sanction of building plans. It is specifically mentioned in this bye law that building plan application for residential building or plot exceeding 334.44 Sq meter (400 sq yds) should be submitted in the building department (HQ) Room No. 112, Town Hall, Delhi on any working day up to 2:00 pm except Tuesday, the day of single window service. Facility is available for submission of building plans in single window service in all Zones as well as in building Contd.....
63Head Quarter. Even locations, address and telephone number of zonal office and building HQ have been mentioned. Bye law 1.3 deals with expeditious sanction of building plans. Bye law 1.4 mentions regarding single window service and building plan committee mentioning week days for building plan committee meeting for building Head Quarter is at Ambedkar Stadium, Delhi Gate from 10:00 am to 12:00 noon and for single window service for building Head Quarter it is on Tuesday at Ambedkar Stadium, Delhi Gate from 10:00 am to 1:00 PM. Bye law 1.5 deal with procedure for processing building permit application. Procedure has been prescribed for obtaining revalidation of building permit also as per bye law 1.5.4 again certain documents are required alongwith application for revalidation and serial no. (d) mentions regarding NOC from House Tax Department of MCD.
69. In judgement title Raghbir Singh and Other Vs. MCD (supra) vide para 7 it has been observed in the following words:
Contd.....64
".................We are also of the view that deemed sanction under Section 337 has very serious implications and if the Corporation is to be tied down to a deemed sanction it is necessary that each of the details required by S. 333 of the Statute must be complied with at least certainly substantially. We say this because the purpose of the Act is that if a notice as required by the Act has been given the Corporation should not be allowed to sleep over it and if it does so it would run the risk of a sanction having been deemed to be given. When so serious are the consequences it would be the mandate of law that the requirement of giving the notice u/s 333 of the Act, which is a condition precedent for the deeming sanction to be read u/s 337 (1) of the Act, should be strictly construed............................................... ................................................................ .
...........we can understand that if in a case a notice is given u/s 333 and complies with further details but instead of 3, two copies of the plans are sent it may then be possible to urge that provisions of S. 337 read with Bye laws have been satisfactorily complied with. But here when there is a total non-
compliance with the provisions of S. 333 and Bye-Laws it would be unjust and unfair to the Corporation if it was to be held deemed to have been Contd.....65
accorded sanction by virtue of S. 337 (1) simply because it did not communicate the refusal within 60 days...........................
................................................................ ................the present case is a different one because here a substantial and a vested right is said to accrue to the person who has given a notice u/s 333 inasmuch as he can claim that his plan has been accorded sanction notwithstanding that it may in fact be in violation of the Bye-Laws of the committee or any other Zonal or Master Plan. Such a provision which gives a substantive right to an applicant must necessarily be construed strictly and the requirement that it must be complied with at least substantially cannot be whittled down."
70. From perusal of PW 1/9 dated 09.05.2002 from Inder Mohan Dawar addressed to the Commissioner, MCD, Chandni Chow, Town Hall, Delhi it is clear that it is not as per the appendix 'A' of the Building Bye Laws which has been mentioned in the preceding paragraphs. This application has not been signed by Inder Mohan Dawar but some Surender Dawar has signed this application and even though Ex. PW- 1/9 mentions regarding enclosure but not even a Contd.....
66single enclosure is placed on record. In this enclosure the following language has been used:
"Enclosure: A duly completed set of Building Plan with all document as per you'reyour Appendix-'A'(Bye-
law No. 6.1)-Form -1 and a Bank DD No. 567756, dated 17/04/02, drawn on Bank of Punjab Ltd, Malviya Nagar, N. Delhi."
71. This letter of plaintiff no. 1 reads as under:
"The Commissioner, Dated 09.05.2002 MCD, Chandni Chowk, Town Hall, Dehli-110006 Sub:-Building Plan in respect of Plots bearing Khasra No. 110/22, Jheel Kuranja, Delhi-51.
Sir, I beg to make the following submission.
1. I am the owner of the above plot. This plot was in the occupation of MCD-Primary School at Jheel Kuranja Delhi for some time and has since been restored to me on 5.2.2002, as per a Court Judgement/Decree,dated 18/3/1999, confirmed by all superior courts unto the Supreme Court of India.
Contd.....67
2. That since 5.2.2002, when I was put in possession of my above mentioned plot, the office of Deputy Commissioner M.C.D. Shahdara - South Zone and all its offices as well as Your Building Department responsible for providing respective necessary civic service have been denying us these services in retaliation of the Judicial verdicts in my favour and against MCD in complete disregard of the law of the land.
3. That I intended to construct the plot of residential purposes and had accordingly got prepared my Building Plans as per your bye- laws, for submission to your Building Dept. at Town Hall, Delhi.
This department on scrutiny found my Building Plans and accompanying documents in order but wanted a No DUES Certificate from the Deputy Assessor and Collector of House Tax, Geeta Colony, under MCD Shahdara - South Zone. As such my Building plans were not receipted and returned.
4. That office of the Deputy Assessor & Collector Geeta Colony had verified and verbally confirmed to me on 20/02/2002 that, there were no dues payable on account of House Tax for my above plot of land. Still I have not been issued the NO DUE Certificate even after a Contd.....68
written request dated 13/03/2002, which was duly receipted.
5. I have since personally met The Joint and Deputy Assessors at their Geeta Colony offices, a number of times. Also I have put in several reminders by registered as well as under UPC covers but to no avail.
Verbally I have been told in no uncertain terms that the desired 'No DUES/No OBJECTION' certificate will not be issued to me.
6. Still as a last resort I got a proper Affidavit prepared solemnly affirming on oath that, I owed "No Due" towards house tax towards my above plot of land and for the third time personally went to submit my Building Plans at your Town Hall office, on 17-02-2002.
However, once again your engineer / and his staff verbally declined to accept these paper despite the said affidavit. They insisted upon my producing a No Dues Certificate from the Deputy Assessor Geeta Colony, Delhi who has since been again contacted more than a dozen times besides sending several written and telegraphic reminders.
Finally he does not intend to issue it to me directly but is prepared to provide it to your office and therefore wants your land & building Dept. to ask for it directly Contd.....69
from him i.e. the office of the Deputy Assessor & Collector, Block-18, Geeta Colony, Delhi- 110031.
7. Therefore now left with no other option, I am submitting my building plan complete in all respects directly to you, along with an affidavit affirming "No Dues"
payable toward my said plot of land as well as a bank draft for Rs.
600/- (Rupees Six Hundred only) towards necessary fee for it early approval, as because of lack of coordination between your office and the office of the Deputy Assessor & Collector Geeta Colony, Delhi, I have already lost full two months, for being made to shunt between your and your Deputy assessor'soffice again and again for no fault of mine. If your office require a NO-Dues Certificate, despite my providing an Affidavit, please direct your above Deputy Assessor to provide the same directly to you. Thanking you, Yours faithfully, Inder Mohan Dawar & Ors Plot Khasra No. 110/22, (Opposite Chaman Dhaba), Jheel Kuranja, Delhi - 110051.
**Enclosure: A duly completed set of Building Plan with all document as Contd.....
70per you'reyour Appendix-'A'(Bye-
law No. 6.1)-Form -1 and a Bank DD No. 567756, dated 17/04/02, drawn on Bank of Punjab Ltd, Malviya Nagar, N. Delhi."
72. Similarly Ex. PW- 2/5 is the similar letter from plaintiff no. 2 Sh. Prem Prakash which reads as under:
"The Commissioner, Dated 09.05.2002 MCD, Chandni Chowk, Town Hall, Dehli-110006 Sub:-Building Plan in respect of Plots bearing Khasra No. 111/22, Jheel Kuranja, Delhi-51.
Sir, I beg to make the following submission.
1. I am the owner of the above plot. This plot was in the occupation of MCD-Primary School at Jheel Kuranja Delhi for some time and has since been restored to me on 5.2.2002, as per a Court Judgement / Decree, dated 18/3/1999, confirmed by all superior courts unto the Supreme Court of India.
2. That since 5.2.2002, when I was put in possession of my above mentioned plot, the office of Contd.....71
Deputy Commissioner M.C.D. Shahdara - South Zone and all its offices as well as Your Building Department responsible for providing respective necessary civic service have been denying us these services in retaliation of the Judicial verdicts in my favour and against MCD in complete disregard of the law of the land.
3. That I intended to construct the plot of residential purposes and had accordingly got prepared my Building Plans as per your bye- laws, for submission to your Building Dept. at Town Hall, Delhi.
This department on scrutiny found my Building Plans and accompanying documents in order but wanted a No DUES Certificate from the Deputy Assessor and Collector of House Tax, Geeta Colony, under MCD Shahdara - South Zone. As such my Building plans were not receipted and returned.
4. That office of the Deputy Assessor & Collector Geeta Colony had verified and verbally confirmed to me on 20/02/2002 that, there were no dues payable on account of House Tax for my above plot of land. Still I have not been issued the NO DUE Certificate even after a written request dated 13/03/2002, which was duly receipted.
Contd.....72
5. I have since personally met The Joint and Deputy Assessors at their Geeta Colony offices, a number of times. Also I have put in several reminders by registered as well as under UPC covers but to no avail.
Verbally I have been told in no uncertain terms that the desired 'No DUES/No OBJECTION' certificate well not be issued to me.
6. Still as a last resort I got a proper affidavit prepared solemnly affirming on oath that, I owed "No Due" towards house tax towards my above plot of land and for the third time personally went to submit my Building Plans at your Town Hall office, on 17-02-2002.
However, once again your engineer / and his staff verbally declined to accept these paper despite the said affidavit. They insisted upon my producing a No Dues Certificate from the Deputy Assessor Geeta Colony, Delhi who has since been again contacted more than a dozen times besides sending several written and telegraphic reminders.
Finally he does not intend to issue it to me directly but is prepared to provide it to your office and therefore wants your land & building Dept. to ask for it directly from him i.e. the office of the Deputy Assessor & Collector, Contd.....73
Block-18, Geeta Colony, Delhi- 110031.
7. Therefore now left with no other option, I am submitting my building plan complete in all respects directly to you, along with an affirmative "No Dues Certificate"
payable toward my said plot of land as well as a bank draft for Rs.
600/- (Rupees Six Hundred only) towards necessary fee for it early approval, as because of lack of coordination between your office and the office of ht Deputy Assessor & Collector Geeta Colony, Delhi, I have already lost full two months, for being made to shunt between your and your Deputy assessor'soffice again and again for no fault of mine. If your office require a NO-Dues Certificate, despite my providing an Affidavit, please direct your above Deputy Assessor to provide the same directly to you. Thanking you, Yours faithfully, Prem Prakash Plot Khasra No. 111/22, (Opposite Chaman Dhaba), Jheel Kuranja, Delhi - 110051.
**Enclosure: A duly completed set of Building Plan with all document as per you'reyour Appendix-'A'(Bye-
law No. 6.1)-Form -1 and a Bank DD Contd.....
74No. 567750, dated 17/04/02, drawn on Bank of Punjab Ltd, Malviya Nagar, N. Delhi."
73. Alongwith Ex. PW- 1/9 and Ex. PW- 2/5 no enclosures have been placed on record.
74. The careful of Ex. PW- 1/9 and Ex. PW- 2/5 i.e. the alleged applications for sanction of building plans on behalf of plaintiff no. 1 and 2 respectively clearly shows that they have mentioned themselves as owners of the respective property. They have also mentioned that MCD was in occupation as MCD primary school and it has been restored to them on 05.02.2002. It has further been mentioned in these letters that they intended to construct the plot for residential purpose. They got prepared their building plans as per the Bye Laws of MCD for submission to building department at Town Hall, Delhi. The department on scrutiny found their building plan and accompany documents in order but wanted a 'no dues certificate' from the Deputy Accessors and Collector House Tax, Geeta Contd.....
75Colony under MCD, Shahdara South Zone. Their building plans were not received and returned. They have also mentioned that they have put in several reminders by registered as well as UPC cover but to no avail and verbally they have been told that no dues / no objection certificate will not be issued to them. It is pertinent to mention that not even a single copy of any such communication/reminder has been placed on record by plaintiff. Para 6 mentions regarding non issuance of no due certificate from house tax department, however, on the other hand mentions regarding submission of building plan complete in all respect. But after carefully going through the record and building bye law it is otherwise as referred in Delhi Building Bye Laws, Bye Law no. 6.1 appendix 'A' has to be considered which has been reproduced in the preceding paragraphs only. For the Vice Chairman, Delhi Development Authority, New Delhi the words the Commissioner, MCD, Delhi has to be mentioned. The Ex. PW- 1/9 and PW 1/5 are not in accordance with appendix A. The chapter 6 of Delhi Building Bye Law Contd.....
76which deals with Municipal Corporation of Delhi Bye Law 1.1 is similar to bye law 6.1 of the Delhi Building Bye Law applicable to Delhi Development Authority. Similarly bye law 1.1 ix (K) mentions regarding requirement of NOC from House Tax Department alongwith building plans applications. Even bye law 1.2 mentions regarding residential plots of area exceeding 400 sq yds for submitting their applications in the Building Department, HQ, Room no. 112 Town Hall on any working day up to 2:00 PM except Tuesday the day of single window service. Bye law 1.5 mentions regarding procedure for processing building permit application and 1.5 (4) deals with procedure for obtaining revalidation building permit and as per 1.5.4(d) NOC for House Tax Department of MCD is required. The Bye Law 1.5.3(a) mentions regarding validation of building plan for two years. Even for details of single window and days time etc has also been mentioned in Delhi Building Bye Laws which has already been mentioned in the preceding lines.
Contd.....
77
75. From this it is clear that the Ex. PW- 1/9 and Ex. PW- 1/5 are not in the requisition format. Alongwith these alleged applications the requisite documents have not been annexed especially the NOC from House Tax Department. The application has not been properly addressed. The enclosure in these Ex. PW- 1/9 and Ex. PW- 2/5 mentions regarding building bye laws 6.1 but the format is not proper. Regarding deemed sanction, since stringent provision is there the strict interpretation has to be opted. This view is also supported by judgement titled Raghbir Singh and Others Vs. Municipal Corporation of Delhi and Another (supra).
76. Section 333 of The Delhi Municipal Corporation Act, 1957 deals with application for sanction. It reads as under:
"Erection of building-
(1) Every person who intends to erect a building shall apply for sanction by giving notice in writing of his intention to the Commissioner in such form and containing such Contd.....78
information as may be prescribed by bye-laws made in this behalf.
(2) Every such notice shall be accompanied by such documents and plans as may be so prescribed."
77. Section 337 of DMC Act, 1957 reads as under:
"When building or work may be proceeded with-
(1) Where within a period of sixty days, or in case falling under clause
(b) of section 331 within a period of thirty days, after the receipts of any notice under section 333 or section 334 or of the further information, if any, required under section 335 the Commissioner does not refuse to sanction the building or work or upon refusal, does not communicate the refusal to the person who has given the notice, the Commissioner shall be deemed to have accorded sanction to the building or work and the person by whom the notice has been given shall be free to commence and proceed with the building or work in accordance with his intention as expressed in the notice and the documents and plans accompanying the same;
Contd.....
79Provided that if it appears to the Commissioner that the site of the proposed building or work is likely to be affected by any scheme of acquisition of land for any public purpose or by any proposed regular line of public street or extension, improvement, widening or alteration of any street, the Commissioner may withhold sanction of the building or work for such period not exceeding three months as he deems fit and the period of sixty days or as the case may be, the period of thirty days specified in this sub-section shall be deemed to commence from the date of the expiry of the period for which the sanction has been withheld."
(2).......................................... (3) If the person or anyone lawfully claiming under him does not commence the erection of the building or the execution of th work within one year of the date on which the building or work is sanctioned or is deemed to have been sanctioned, he shall have to give notice under section 333 or, as the case may be under section 334 for fresh sanction of the building or the work and the provisions of this section shall apply in relation to such notice as they apply in relation to the original notice.
Contd.....
80
(4) Before commencing the erection of a building or execution of a work within the period specified in sub-section (3), the person concerned shall give notice to the Commissioner of the proposed date of the commencement of the erection of the building or the execution of the work;
Provided that if the commencement does not take place within seven days of the date so notified, the notice shall be deemed not to have been given and a fresh notice shall be necessary in this behalf."
78. Section 333 DMC Act 1957 deals with application for sanction by giving notice. It also refers to bye-laws and accompanying documents. As has already been discussed in detail Ex. PW- 1/9 and Ex. PW- 2/5 dated 09.05.2002 are applications for sanction of plan as per both the plaintiffs. However, in view of above discussed details Ex. PW- 1/9 and Ex. PW- 2/5 cannot be treated as application/notice u/s 333 of DMC Act, 1957. Number of discrepancies have already been pointed out in Ex. PW- 1/9 and Ex. PW- 2/5. Admittedly no objection certificate from House Contd.....
81Tax Department has not been annexed. The notice/application is not in prescribed Appendix 'A' mentioned in Delhi Building Bye Laws 6.1. The case of defendant is that it is actually a complaint regarding non issuance of NOC from House Tax Department, MCD.
79. It is well settled proposition of law that deemed sanction u/s 337, DMC Act has very serious implications and if the MCD is to be tied down to a deemed sanction it is necessary that each of the details required by section 333 of DMC Act must be complied with at least substantially. The requirement of giving notice u/s 333 DMC Act is a condition precedent for the deemed sanction u/s 337 (1) and it should be strictly construed. There should be substantial compliance. If there is total non- compliance with the provisions of Section 333 DMC Act and Building Bye Laws it would be unjust and unfair to the MCD if it was to held deemed to have been accorded sanction by virtue of section 337(1) simply Contd.....
82because it did not communicate the refusal within sixty days.
80. Moreover, provisions u/s 333/337 DMC Act gives substantive right to an applicant, therefore, it must necessarily be construed strictly and it must be complied with substantially.
81. It is not disputed that Ex. PW- 1/9 and Ex. PW- 2/5 dated 09.05.2002 were received by defendant/MCD on 13.05.2002.
82. Learned counsel for plaintiff has submitted that even no defect in Ex. PW- 1/9 and Ex. PW- 2/5 was pointed out by defendant. Nothing in this regard has been mentioned in the written statement. If there was any deficiency, why the MCD did not communicate for deficiency. It has also been argued by learned counsel for plaintiff that if Ex. PW- 1/9 and Ex. PW- 2/5 are complaints then why plans were rejected and why not the complaint was dismissed. Commissioner had total Contd.....
83period of 150 days i.e. sixty days plus ninety days to withhold sanction. By 13.10.2002 MCD could have withheld and from 14.10.2002 plans are deemed to be sanctioned but the rejection letter is dated 25.11.2002. He has further argued that building plan has been rejected u/s 337 DMC Act and not u/s 336 DMC Act.
83. Learned counsel for plaintiff has also referred to letters Ex. PW- 1/12A and Ex. PW- 2/8A dated 22.10.2002 which have been sent by plaintiff no. 1 and 2 respectively to the Commissioner MCD. These are simple communications from the both the plaintiffs. These communication for plaintiffs are regarding deemed sanction wherein both the plaintiffs have mentioned that as per MCD Building Rules u/s 37 of the MCD Act. Part of communication from both the plaintiffs addressed to The Commissioner MCD dated 22.10.2002 which are Ex. PW- 1/12A and Ex. PW- 2/8A reads as under:
"................As per MCD building rules under section 37 of the M.C.D. Act, if Contd.....84
the applicant does not receive the necessary approval of the plans or any objections thereof ,in writing, from the Commissioner M.C.D., within 60 days or under certain special circumstances within 90 days of submission of the building Plan, then the plan in question is deemed to have been passed/sanctioned and the applicant can start construction work as per the plan..............."
84. During the course of argument learned counsel for plaintiff has submitted that section 37 mentioned in Ex. PW- 1/12A and Ex. PW- 2/8A be read as section 337. Ex. PW- 1/12A and Ex. PW- 2/8A mentions regarding that both the plaintiffs have decided to start their construction work forthwith from 22.10.2002 .
85. However, two other documents Ex. PW- 1/12B and Ex. PW- 2/8B from plaintiff nos. 1 and 2 respectively dated 25.10.2002 addressed to Commissioner, MCD have also been proved. As per the plaintiffs these are notice u/s 337 sub clause (4) of MCD Act, 1957. These two documents also mention Contd.....
85regarding deemed sanction and that they could start construction work as per the submitted plan and after prolonged delay they had decided to start construction work w.e.f. 01.11.2002. Regarding Ex. PW- 1/12A alongwith Ex. PW- 1/12B for plaintiff no. 1 and Ex. PW- 2/8A alongwith Ex. PW- 2/B for plaintiff no. 2 it is clear that in these documents plaintiffs have mentioned regarding deemed sanction however, in Ex. PW- 1/12A and 2/8A dated 22.10.2002 they have mentioned regarding start of construction forthwith from 22.10.2002. However. Ex. PW- 1/12B and Ex. PW- 2/8B mention regarding deemed sanction but construction would start w.e.f. 01.11.2002. These letters are dated 25.10.2002. In nutshell, it is clear that on 22.10.2002 both the plaintiffs presuming deemed sanction decided to start their construction forthwith i.e. 22.10.2002 but on 25.10.2002 the construction was not started and presuming deemed sanction they decided to start construction work w.e.f. 01.11.2002.
86. Plaintiffs themselves have mentioned Contd.....
86regarding provisions of section 337 (4) of DMC Act in their communication dated 25.10.2002 Ex. PW- 1/12B and Ex. PW- 2/8B. The plain reading of section 337(4) DMC Act, 1957 especially its proviso it is clear that before commencement of erection of building person concerned has to be give notice to the Commissioner MCD of the proposed date of commencement of the erection of building or the execution of the work. Proviso has been appended to sub section (4) of section 337 wherein it has been provided that if the commencement does not take place within seven days of the date so notified, the notice shall be deemed not to have been given and a fresh notice shall be necessary in this behalf. The Ex. PW- 1/12A and Ex. PW- 2/8A refer to start of construction from 22.10.2002 and Ex. PW- 1/12B and Ex. PW- 2/8B refer to start of construction w.e.f 01.11.2002. Even though previous litigation and other details have been mentioned in Ex. PW- 1/12B and Ex. PW- 2/8B but there is no reference of communication dated 22.10.2002 i.e. Ex. PW- 1/12A and Ex. PW- 2/8A in communication Contd.....
87dated 25.10.2002 i.e. Ex. PW- 1/12B and Ex. PW- 2/8B. Considering Ex. PW- 1/12A and Ex. PW- 2/8A as notice u/s 337 (4) of the DMC Act plaintiffs were supposed to commence construction from 22.10.2002 as mentioned in communication dated 22.10.2002 or latest by 28.10.2002. Their communication dated 25.10.2002 itself admits regarding start of construction w.e.f. 1.11.2002. Once they have not mentioned regrading previous communication dated 22.10.2002 in their communication dated 25.10.2002, these two separate notices cannot be considered. Obviously the prior notice / communication dated 22.10.2002 has to be considered and admittedly within seven days the construction was not commenced / started.
87. Even though it has been already decided that since the plaintiffs have not complied with provisions of section 333/337 of Delhi Municipal Corporation Act alongwith prescribed provisions of building bye laws and provision of section 333 and 337 of Delhi Municipal Corporation Act have to be Contd.....
88construed strictly. They must be complied with substantially, which were not complied with substantially as discussed in detail in the preceding paragraphs. There was no deemed sanction. Even if presuming the arguments of learned counsel for plaintiff that there was deemed sanction but plaintiffs have in the light of aforesaid discussion failed to commence construction within seven days from notice dated 22.10.2002 Ex. PW- 1/12A and Ex. PW- 2/8A.
88. As per the case of defendant and especially testimony of defendant witnesses DW 1 D.K. Jain the letters dated 09.05.2002 which were in fact complaints regarding non-issuance of NOC by the House Tax Department of MCD were received by Commissioner's office on 13.5.2002 and these were marked to Additional Assessor and Collector from House Tax Department. Files were received in the office of Executive Engineer Building, Shahdara South Zone on 31.10.2002. Since the size of plots was more than 400 sq. yds. files were sent to Building Department Head Contd.....
89Quarter which was competent to deal with the matter and the matter was processed and plans were rejected on 25.11.2002 for the reason that the property in dispute was proposed to be acquired as per the Standing Committee's resolution for public interest. Necessary intimation was also sent to Sh. S.K. Malhotra, Architect. A7/4, Krishan Nagar, Delhi. Thus the building plans were rejected by the Corporation within stipulated period after they were received by the competent authorities.
89. DW 2 N.K. Sharma has deposed that plaintiffs have not applied properly for the sanction of building plans and they have complained to the Commissioner MCD regarding non issuance of NOC by the house tax department of MCD. The alleged applications of plaintiffs for sanction of respective building plans were not properly made and were rejected by the Corporation on 25.11.2002. Plaintiffs were informed by letter dated 40.AE(III)/02/rejection and letter dated
41.AE(III)/02/rejection for the reason that land in Contd.....
90question was proposed to be acquired. Regarding receipt of these letters on 13.5.2002 and marked to Assessor and Collector and after that files were received by the Executive Engineering on 31.10.2002 etc. he has duly corroborated the testimony of DW 3 R.K. Gupta. He has also corroborated the testimony of DW 1 D.K. Jain, DW 4 MM Dahiya Executive Engineer Building, HQ, MCD has deposed regarding submission of application by plaintiffs for sanction of building plans and that they were rejected u/s 337 DMC Act, 1957 on 25.11.2002. Plaintiffs were fully informed about the same vide letters dated 25.11.2002 i.e. letter no.
40.AE(III)/02/rejection and 41.AE(III)/02/rejection. Sh. Sanjay Jain Asst. Engineer Building HQ had signed letters no. 40.AE(III)/02/rejection and letter no.
41.AE(III)/02/rejection. DW 4 M.M. Dahiya had identified the signatures of Sh. Sanjay Jain and even the bank draft sent by these plaintiffs were returned by the Executive Engineer vide his letter dated 28.11.2002. DW 4 had gone through the relevant record of the case though he has not personally dealt with the Contd.....
91applications dated 09.05.2002 Ex. Pw1/9 and Ex. PW- 2/5. He has also deposed that the sanction was rejected because acquisition proceedings in regard to the plots in question were pending. He had also seem the rejection order. He has also denied the situation that rejection to the building plan was given after the stipulated period. He has also deposed that the applications made for sanction of building plans are not in approved / requisite formats. In the application mainly, mention is about problems of house tax department. Mainly not getting no dues certificate and proper assessment of House Tax Department. In the end of application the request for considering the sanction plan has been mentioned. It was not communicated that the application dated 09.05.2002 for sanction of building plans are not in proper format. Sanjay Jain was posted with DW 4 Sh. M.M.Dahiya as Asstt. Engineer Building, HQ. As per testimony of DW 4 M.M. Dahiya had intimated Building Department, Shahdara South Zone about the rejection of building plan.
Contd.....
92
90. Defendant MCD has also stated in its written statement regarding passing resolution no. 389 dated 30.12.2002 MCD for acquisition of properties nos. 110/22 and 111/22 Jheel Kuranja for running primary school. Plaintiffs have not applied properly for sanction of building plans and plans were not properly made. They were rejected by Corporation on 25.11.2002 for the reason that land in question was proposed to be acquired. The property in dispute was proposed to be acquired as per the Standing Committee resolution for public interest and necessary intimation was sent to Sh. S.K. Malhotra, Architect, A7/4 Krishna Nagar, Delhi. As per the defendant MCD building plans were rejected by the Corporation within the stipulated period after they were received by the competent authorities. From House Tax Department file was received in the office of Executive Engineer Shahdara, South Zone on 31.10.2002 and were sent to Building Department Head Quarter which was competent to deal with the matter and no building can be constructed for which the Contd.....
93sanction has been rejected by the MCD. Plaintiff cannot be permitted to raise and construction without obtaining any sanction plan from the competent authority.
91. PW 1 Inder Mohan Dawar the plaintiff no. 1 has denied that the request for sanction the plan for building was not made in prescribed proforma. He had deposed that plans were submitted as per bye laws and were sent through Commissioner MCD by registered post and he had not sent application for sanctioning plan to the Building Department with fee. He has also deposed that he was not intimated about the rejection of sanction plan or making of any deficiency or about the sanction of the plan till 03.01.2003 when he was informed that his plan has been rejected on the ground that plot in question was being acquired. He has also deposed that it was wrong to say that his application for sanction of building plan was not properly made and was rejected on 25.11.2002. He further volunteered that defendant anti Contd.....
94dated letter by which they rejected the plan and gave the same to the police. He has also admitted that S.K. Malhotra Architect had prepared the building plan but he do not know if the letter dated 25.11.2002 was also sent to his architect at his address.
92. PW 2 Prem Prakash has denied that his application was not for sanctioning building plan but it was the complaint to the MCD. He has also admitted that his architect was Sh. S.K. Malhotra. He further deposed that he had asked his architect when his case was pending in High Court about the rejection of the plan who had told him that he did receive copy of letter dated 25.11.2002 but he was not able to trace the same. Which clarified that the order of rejection was communicated vide letter dated 25.11.2002 and was received by Sh. S.K. Malhotra Architect of both the plaintiffs, but who could not trace the same. PW 2 Prem Prakash has further deposed that he presumed that building plan which was sent by him for sanctioning stood sanctioned because no reply was Contd.....
95given to him for rejection of plan within the statutory period.
93. The plaintiffs are sticking to their case that their communication / application dated 9.5.02 Ex. PW- 1/9 and Ex. PW- 2/5 are the applications for sanction of the building plan which were received by the office of the Commissioner on 13.5.2002 and the stipulated period will start from 13.5.2002 and by 13.10.2002 MCD could have withheld and from 14.10.2002 plans deemed to be sanctioned. However, the rejection letter is of 25.11.2002. Per contra the case of the defendant is, firstly there is no such application in the prescribed format. It is not addressed to proper office. As the plots were more than 400 sq. yds., therefore, these have to be processed by Building Department, HQ, Room No. 112, Town Hall, Delhi, however, the applications mentioned the Commissioner, MCD, Chandni Chowk, Town Hall, Delhi and not about submission of these applications to Building Department Head Quarter and also NOC of House Tax Contd.....
96Department was not given which is also one of the essential documents and ultimately after processing of the file through House Tax Department, Executive Engineer Building, Shahdara South and after that file was sent to Building Department, Head Quarter. Even if presuming that since file was received by Executive Engineer, Shahdara South Zone on 31.10.2002 and the same has been sent to competent department i.e Building Department on 31.10.2002, the period mentioned in section 337 of the DMC Act 1957 for sixty days and ninety days will start from 31.10.2002 and not prior to that. As competent department i.e. the Building Department, Room no. 112 was not in receipt of Ex. PW- 1/9 and Ex. PW- 2/5 i.e. the alleged applications. The rejection has been communicated which has been admitted by PW 2 Prem Prakash, plaintiff no. 2 during the course of his cross examination, as it was received by his architect even though both the plaintiffs are denying receipt of rejection dated 25.11.2002. However, receipt of same by their architect Sh. S.K. Malhotra at this address has been Contd.....
97admitted by PW 2 Prem Prakash in his testimony. The Ex. PW- 1/18 and Ex. PW- 2/10 are dated 25.11.2002 addressed to plaintiff no. 1 and 2 respectively. Wherein following reasons have been mentioned for rejection:
"This property is since proposed to be acquired as per the Standing Committee resolution for public interest, the building plan application has been rejected by Executive Engineer (B) HQ vide his order dated 25.11.2002."
94. Viewing this matter from all corners it is clear that the alleged application Ex. PW- 1/9 and Ex. PW- 2/5 of both the plaintiffs are not in the requisite format. Even no dues certificate from House Tax Department have not been attached. These have not been deposited with Building Department Head Quarter, Room no. 112 Town Hall and these requirements are to be construed strictly as has already been discussed. The ground taken by plaintiff that they are not being communicated for any discrepancies has no force. Firstly they were supposed to ensure regarding provision u/s 333 DMC Act as well as the Bye Laws Contd.....
98though they have referred Appendix 'A', neither format has been followed nor the documents have been enclosed properly including the essential document i.e. NOC from House Tax Department. For NOC from House Tax Department if it was not being issued though plaintiffs have referred regarding their communication but no such communication is on record. The rejection of plans is on the basis of the reason that property is proposed to be acquired as per the Standing Committee resolution for public interest. The building plan application has been rejected by Executive Engineer Building Head Quarter vide his order dated 25.11.2002. The file was received by Executive Engineer, Shahdara, South on 30.10.2002. Therefore, as discussed earlier even if presuming that the same day it has been sent to Building Department Head Quarter, the rejection is well within the prescribed period and communication to the plaintiffs as well as to their architect accordingly. Even address of the architect has been mentioned in Ex. PW- 1/18 and Ex. PW- 2/10.
Contd.....
99
95. Therefore the building plan submitted by both the plaintiffs for plot no. 110/22 and 111/22 with the MCD cannot be termed as deemed to be sanctioned u/s 337 of DMC Act, 1957. Issue no. 3 is therefore decided in favour of the defendant and against the plaintiff.
96. Regarding issue no. 6B since issue no. 3 has been decided against the plaintiff meaning thereby that the building plans submitted by plaintiffs for plot no. 110/22 and 111/22 with MCD cannot be treated as deemed to be sanctioned in terms of Section 337 of the DMC Act, 1957. Since sanction is the prerequisite for raising construction as per section 332 of the DMC Act the plaintiffs are not entitled to continue the construction in accordance with the plan submitted by them. Moreover, if the plaintiffs consider deemed sanction w.e.f. 14.10.2002 as referred in section 337 of the DMC Act such kind of sanction is for one year only and further plaintiffs have to give notice u/s 333 of the DMC Act for fresh sanction as the construction has to Contd.....
100further continue. Even otherwise court cannot permit at this stage in the year 2007 to continue the construction in violation of section 337(3) of the DMC Act wherein one years period has been prescribed for commencement of erection of the building. Accordingly issue no. 6B is decided against the plaintiffs and in favour of the defendant.
97. In view of my findings of issue no. 1 and 3 it is clear that the resolution approving of resolution by MCD for acquisition of plot no. 110/22 and 111/22, Jheel Kuranja was in accordance with process of law and the plans submitted by plaintiff for this property with the MCD are not considered to be deemed to be sanctioned in terms of section 337 of the DMC Act and as has already been discussed, the rejection of plans by the MCD is on the ground that the property is proposed to be acquired as per the Standing Committee resolution for public interest. Proviso appended to section 337(1) supports the MCD for such rejection wherein proviso is that if it appears to the Contd.....
101commissioner that the site of the proposed building or work is likely to be affected by any scheme of acquisition of land for any pubic purpose the Commissioner may withhold sanction of the building plan. The resolutions as have already been referred mentioned regarding public interest, regarding proposed acquisition for running primary school which was earlier being run on the same plot for about five decade right from 15.07.1962 till 05.02.2002. Even it has been deposed by PW 2 Sh. Prem Prakash. Therefore, in my considered view rejection of plaintiffs' plans by MCD was legal and covered u/s 337 of DMC Act. The argument of learned counsel for plaintiffs that MCD was aware that the property was evacuee property and it cannot be acquired is not tenable as in Ex. PW- 1/16 annexure B item no. 5 i.e. copy of resolution no. 412 dated 06.09.1966 of the MCD at page 4 mentions regarding Commissioners letter no. 525/C&C dated 19.06.1965, I am afraid for the sake of repetition it is again mentioned that as per this document the Managing Officer, Government of India Ministry of Contd.....
102Rehabilitation had intimated that the evacuee rights in plots in Jheel Kuranja have been surrendered in favour of DDA. Therefore, it is not evacuee property. The second leg of argument of learned counsel for plaintiff that for any non-plan acquisition the request has to be routed through DDA and after NOC from DDA the process of acquisition can be initiated, for this argument of learned counsel for defendant has force who have submitted before the court that before start of acquisition proceedings MCD has to decide need of land for specific purpose and after that resolution is being passed from Standing Committee, only after that they can proceed further with Land & Building Department for acquisition and resolution was passed by Standing Committee for acquisition. Learned counsel for defendant has referred to section 347 B(g) of DMC Act that if any person is aggrieved by an order with holding sanction then appeal lies before the Appellate Tribunal. He has further submitted that Section 347 E of DMC Act bars the jurisdiction of the court. For this he has referred to Prabhu Dayal Vs. MCD Contd.....
103and Another (supra).
98. Learned counsel for plaintiff has submitted that judgement relied by defendant has no relevance since demolition was illegal. He has submitted that the tribunal does not have jurisdiction when deemed sanction has been granted by lapse of time.
99. Therefore, in view of the aforesaid discussion and keeping in view the provisions referred by learned counsel for defendant also, I am of the considered view that in the instant case rejection by MCD vide letter dated 25.11.2002 Ex. PW- 1/18 and Ex. PW- 2/10 for both the plaintiffs is rejections u/s 337 (1) of the DMC Act and it is proper rejection after giving due reason.
100. An application under Order VII Rule 11 Section 347B and 347 E of DMC Act r/w section 151 CPC dated 22.07.2005 moved by MCD through counsel is also pending disposal. This shall stands disposed of while deciding issue no. 6A. Issue no. 6A is Contd.....
104decided in favour of the defendant and against the plaintiff.
Issue nos. 4 & 5 Whether the suit filed by the plaintiffs was bad for misjoinder of parties? OPD Whether the suit has not been properly valued for the purpose of court fees and jurisdiction? OPD
101. Onus to prove these issues is on the defendant. Learned counsel for defendant/MCD has submitted that there are two plaintiffs. They are different persons and two different properties have been referred. They have applied for sanction separately. Their applications have been decided separately. Both the plaintiffs have separate and different cause of actions. In this single suit they have clubbed separate cause of actions and paid court fee for only one cause of action and not for two. Learned counsel for plaintiff has submitted that there is no evidence of defendant on these issues. He has submitted that under order II of the CPC if plaintiffs Contd.....
105have same cause of action against same authority and seek same relief the suit is maintainable. Regarding court fee he has submitted that as per plaintiffs court fee is proper and no question has been put to the plaintiffs' witness regarding the fact that court fee has not been properly paid. He has further submitted that if court fee is deficient plaintiffs will definitely pay the same. He has also submitted that suit was initially filed in the High Court and in the High Court after scrutiny of court fee notice was issued. Learned counsel for plaintiff has also submitted that MCD is pressing for mis-joinder of parties but he has referred to order I rule 1 and order I rule 9 CPC. He has further submitted that MCD has passed only one resolution for acquisition which is Ex. PW- 1/16 regarding both the plots because there is common question. He has also referred to communication from MCD Ex. PW- 5/1 which is also regarding both the properties. He has further submitted that in view of provisions of order I rule 1CPC plaintiffs are covered because series of acts and transactions are one. He has further submitted Contd.....
106that as per order I rule 9 the suit cannot be rejected.
102. I am of the considered view that after considering the matter in totality even though two separate applications Ex. PW- 1/9 and Ex. PW- 2/5 were moved by both the plaintiffs, they have also sent their communication dated 22.10.2002 Ex. PW- 1/12A and Ex. PW- 2/8A as well as their communication dated 25.10.2002. Ex. PW- 1/12B and Ex. PW- 2/8B separately but the resolution Ex. PW- 1/16 of the MCD is the joint resolution. The other communication referred by plaintiff counsel is also for both the plots. It is pertinent to mention that during the course of arguments learned counsel for defendant had not argued anything else in this respect.
103. Accordingly, I am in agreement with the argument putforth by learned counsel or plaintiff and I therefore hold that the suit is not bad for misjoinder of parties. However, as regards court fee is concerned since court fee as per para 37 of the plaint is for one Contd.....
107plaintiff, plaintiffs are directed to pay the balance court fee i.e. for the second plaintiff also within one month from the date of this order and after payment of such court fee the decree sheet shall be prepared. Accordingly issue no 4 and 5 are disposed of. Issue no. 6 Whether the defendants had authority to pass any demolition order in respect of the above property? OPD
104. Onus to prove this issue is on the defendant. Since as per order dated 29.08.2006 Ld. counsel for plaintiffs had got his statement recorded before the court that for decree of declaration qua demolition dated 29.11.2002 plaintiffs are not pressing. Both the plaintiffs did not press declaration of demolition dated 29.11.2002. Therefore, since this relief has not been pressed by plaintiffs in view of statement of learned counsel for plaintiffs record on dated 29.8.06 therefore, this issue is struck of.
Contd.....
108Issue no. 7 Relief
105. In view of the findings on various issues no relief can be granted to the plaintiffs.
106. On the basis finding of various issues the suit of the plaintiff is dismissed. Parties shall bear their own cost. Plaintiff shall pay the balance court fee as there are two plaintiff which has been ordered today to be paid within one month while deciding issues no. 4 & 5. Accordingly, decree sheet be prepared after depositing of court fee.
107. It is further clarified that plaintiffs are at liberty to take necessary steps as per law/rules for submission and sanction of their building plans with respect to property no. 110/22 and 111/22 Jheel Kurnaja, Delhi-110051 and on such submission MCD shall consider the same as per law/rules.
Contd.....
109
91. File be consigned to record room.
ANNOUNCED IN THE OPEN COURT (PINKI) ADDITIONAL DISTRICT JUDGE DELHI/28.02.2007 Contd.....
110Suit No. 180/03 13.02.2007 Present: Counsel for parties.
Further arguments heard.
Put up for orders on 27.02.2007 (PINKI) ADDITIONAL DISTRICT JUDGE DELHI/13.02.2007 Contd.....
111Suit No. 180/03 27.02.2007 Present: Sh. Pramod Jalan, Advocate Ld. counsel for plaintiff.
Sh. Umesh Gupta, Advocate Ld. counsel for defendant no. 1 and 3.
HC Mohd. Iftikhar, 304/East, P.S..Geeta Colony for defendant no. 3.
It is already 6.20 PM order is being dictated and is not complete. Put up for orders on 28.02.2007.
(PINKI) ADDITIONAL DISTRICT JUDGE DELHI/27.02.2007 Contd.....
112Suit No. 180/03 28.02.2007 Present: Proxy counsel for parties.
Vide separate judgement announced in the open court the suit of the plaintiff is dismissed. Parties shall bear their own cost. Plaintiff shall pay the balance court fee within one month which has been ordered today while deciding issues no. 4 & 5. Accordingly, decree sheet be prepared after depositing of court fee.
It is further clarified that plaintiffs are at liberty to take necessary steps as per law/rules for submission and sanction of their building plans with respect to property no. 110/22 and 111/22 Jheel Kurnaja, Delhi-110051 and on such submission MCD shall consider the same as per law/rules.
File be consigned to record room.
(PINKI) ADDITIONAL DISTRICT JUDGE DELHI/28.02.2007 Contd.....
113Contd.....