Delhi District Court
Shri Amit Tyagi vs South Delhi Municipal Corporation on 26 May, 2014
IN THE COURT OF Ms. ANU MALHOTRA
DISTRICT & SESSIONS JUDGE / ARCT (WEST) : DELHI
RCA56/2013
Unique ID No. 02401C0325732013
Shri Amit Tyagi
S/o Shri Devender Tyagi
R/o H4, First Floor,
Shivaji Park, Punjabi Bagh,
New Delhi26 ......Appellant
Versus
South Delhi Municipal Corporation
Through its Commissioner
Civic Center, Jawahar Lal Nehru Marg
Minto Road, New Delhi - 110 002 ..........Respondent
Date of Institution : 05.07.2013
Date of reserving the judgment : 31.03.2014
Date of pronouncement : 26.05.2014
JUDGMENT
This Judgment shall dispose off an appeal instituted on 05.07.2013 by the appellant Shri Amit Tyagi against the South Delhi Municipal Corporation whereby the appellant has assailed the impugned judgment dated 09.05.2013 of the Ld. Additional District and Sessions Judge cum PO Appellate Tribunal MCD, whereby the RCA No. 56/2013 Page 1/8 appeal filed by the appellant against the order of demolition dated 25.05.2012 bearing No. D447/EE(B)1/WZ/2012 in relation to property No. H4, First Floor, Shivaji Park, Punjabi Bagh, New Delhi was dismissed and in terms of Rule 19(1) and (3) of the Delhi Municipal Corporation Appellate Tribunal (Procedure) Rules, 1986, damages and litigation costs of `25,000/ and `5,000/ were imposed upon the appellant payable to the respondent within 15 days of the date of the judgment dated 09.05.2013 failing which it was directed that the same would be recovered through coercive manner. Inter alia vide the impugned judgment the respondent was directed to take demolition action in the subject property on the basis of the impugned order and to file the status report with the Tribunal.
Notice of the appeal was issued to the respondent who has put in appearance and contested the appeal. During the course of submissions made on 18.07.2013 on behalf of the appellant it has been brought forth that the demolition in terms of the notice of the demolition as permitted by the impugned judgment dated 09.05.2013 has already been effected.
On behalf of the appellant written submissions have been submitted and arguments have also been addressed in support of the contentions raised through the appeal by Ld. Counsel for the appellant RCA No. 56/2013 Page 2/8 Shri A.P. Aggarwal.
On behalf of the respondent Ld. Counsel Shri Shashi Kant Sharma has submitted that the MCD relies upon observations made in the impugned judgment itself and seeks that the appeal be dismissed.
A perusal of the records of the Ld. Appellate Tribunal indicates that vide demolition order dated 25.05.2012, pursuant to the initial demolition order No. BUC/WZ/10/146 dated 23.07.2010 qua unauthorized construction of two rooms in property No. H4, Shivaji Park (West), Punjabi Bagh, New Delhi on the First Floor having been set aside by the Appellate Tribunal MCD on 27.09.2011 for violation of the due process of law, and the matter had been remanded back to the MCD to provide an opportunity of personal hearing to the appellant and to permit the appellant to file documents and written submissions, if any. Thereafter as per Order No. D447/EE(B) 1/WZ/2012 dated 25.05.2012 pursuant to proceedings conducted in terms of the order of the Ld. Appellate Tribunal MCD, it was concluded that the appellant had reconstructed two rooms on the First Floor unauthorizedly and had not sought regularization / compounding of the unauthorized construction which had been made without any sanction / permission and which was in contravention of the building bye laws and the same were thus directed to be demolished within six RCA No. 56/2013 Page 3/8 days of the receipt of the order.
The said order was assailed by the appellant before the Ld. PO Appellate Tribunal MCD and vide the impugned judgment the Ld. Appellate Tribunal MCD held that the appellant had not come to the Court with clean hands and it was further held by the Ld. PO Appellate Tribunal MCD that the findings given by the concerned AE(B) vide order dated 25.05.2012 bearing No. D447/EE(B)1/WZ/2012, that the First Floor had been reconstructed was correct and that it was not a simple case of a repair, which the Ld. PO Appellate Tribunal MCD held, the appellant was required to do after obtaining the proper sanctioned building plan and that the appellant on the other hand had illegally carried out addition / alteration in the property which was unauthorized and in violation of the building of the laws.
Vide the appeal under consideration, the appellant has submitted that the Ld. Appellate Tribunal has exceeded its jurisdiction and that the show cause notice which had been issued by the MCD to the appellant was only in relation to construction of two rooms as mentioned in the show cause notice (i.e. show cause notice No. B/UC/WZ/10/146 dated 23.07.2010 and it was thus submitted by the appellant that the Ld. Appellate Tribunal had only to decide whether the two rooms had been constructed by the appellant illegally or not RCA No. 56/2013 Page 4/8 and if there had been unauthorized construction against the building bye laws 6.4.1, an opportunity should have been given to the appellant by service of a notice under Section 343 of the Delhi Municipal Corporation Act by the Appellant Tribunal, which was not served and that it had not been contended by the respondent i.e. the MCD at any stage that construction had been raised by the appellant except the two rooms which according to the appellant had been unauthorisedly constructed by the appellant on the back side of the First Floor of the property in question. The appellant thus submitted that the principles of natural justice had been violated.
Interalia it was submitted by the appellant that the Ld. Appellate Tribunal erred in holding in one place that the appellant stated that the construction was more than 15 years old and had at another stage stated that the construction was more than 30 years old and it was submitted by the appellant that the crux of the matter was that the construction was old, and whether it was 15 years or 30 years old did not matter and that anything that existed prior to February 2007 in terms of the provisions of the Special Provisions Act could not have been ordered to be demolished till December 1914.
Interalia the appellant submitted that the Ld. Appellate Tribunal had not properly perused the sale deed dated 13.09.2002 and RCA No. 56/2013 Page 5/8 had overlooked the established norm that land is inelastic and cannot be increased or decreased in any manner and that in fact there existed a mezzanine floor and a first floor which were always stated to be above the first floor and second floor.
Interalia the appellant submitted that no PTR i.e. the Property Tax Return was filed for the year 20042005 and that the PTR for the 20052006 had been filed and that the Ld. Appellate Tribunal had not perused the document properly and that the Ld. Appellate Tribunal did not take into consideration that the appeal was only in respect of two rooms which had been booked under the show cause notice of the respondent and that the Appellate Tribunal was not to take into account any other construction and it was never the case of the respondent that any other unauthorized construction had been raised by the appellant.
Interalia the appellant submitted that the provisions of Rule 19(1) and (3) of the Appellate Tribunal Procedure (Rules 1988) were not applicable as the appellant had concealed anything.
A perusal of the verdict of the Ld. PO Appellate Tribunal MCD and a perusal of the records of the Ld. Appellate Tribunal MCD, makes it apparent that the contention of the appellant in relation to the aspect that the property tax form for the year 20042005 had not been RCA No. 56/2013 Page 6/8 filled in by the appellant is incorrect as the same is found placed on the record by the appellant on the records of the Ld. PO MACT.
As regards the submission made on behalf of the appellant that the Ld. Appellate Tribunal MCD had exceeded its jurisdiction and had not confined itself to the points in issue which related only to the alleged unauthorized construction of two rooms by the appellant, it is essential to observe that the verdict of the Ld. Appellate Tribunal MCD makes it apparent that the entire analysis made by the PO MACT is in relation to the allegations levelled by the respondent of raising of unauthorized construction of the two rooms which through the analysis of the Ld. PO MACT is clearly made out to have been done by the appellant in contravention of Rule 6.1 of the building by laws. There is thus no infirmity in the impugned judgment dated 09.05.2013 of the Ld. Appellate Tribunal in appeal No. 280/AT/MCD/2012 as it is held that the Ld. Appellate Tribunal MCD has not exceeded its jurisdiction and had only analyzed the evidence before itself.
As regards the damages and litigations cost of `25,000/ and `5,000/, respectively, imposed on the appellant vide the impugned judgment, taking into account the factum that the unauthorized construction has already been demolished pursuant to the RCA No. 56/2013 Page 7/8 impugned judgment, the damages of `25,000/ and litigation cost of `5,000/ imposed vide the impugned judgment are reduced to `10,000/ and `2,500/ respectively which be paid by the appellant to the respondent within a period of 15 days from today failing which they would be recovered coercively as directed by the Ld. PO MACT. Copy of this order be sent to the Ld. PO MACT and the records be returned.
The appeal is disposed off accordingly and the records of RCA No. 56/2013 be consigned to the Record Room.
Announced in the Open Court (Anu Malhotra)
today this the 26th day of District & Sessions Judge/ ARCT
May, 2014 (West) Delhi
RCA No. 56/2013 Page 8/8