Delhi District Court
Shri Ramesh Chand vs Municipal Corporation Of Delhi on 14 March, 2012
1
IN THE COURT OF SHRI O.P. GUPTA,
DJ&ASJ-In-Charge(West)/ARCT,DELHI
***
Unique ID NO. 02401C0480312011
RCA No. 14/11
Shri Ramesh Chand
S/o Late Shri Sardar Singh
R/o H. No. WZ-6,
Titarpur Village,
Delhi.
....Appellant
Versus
Municipal Corporation of Delhi
Through its Commissioner
Town Hall, Chandni Chowk,
Delhi - 110006. ....Respondent
Date of Institution : 15.10.2011
Arguments heard on : 06.03.2012
Date of Order : 14.03.2012
ORDER
1. The present appeal u/s 347-D Delhi Municipal Corporation Act is directed against order dated 6.10.2010 passed by Ld. Appellate Tribunal, MCD.
2. It is astonishing that appellant is enjoying the premises without there being any stay. Perusal of the file reveals that Hon'ble Lt. Governor never stayed operation of the order of sealing/demolition/vacation the premises of RCA No.14 /11 1 of 10 2 the appellant. Mere pendency of the appeal is operating as stay.
3. In short the facts are that appellant was at one time tenant in portion of Ground Floor of property No. WZ-6, Titarpur, Delhi @ Rs. 30/- per month under Sh. Balwant Singh. He filed repeated suits for injunction restraining the landlord from dispossessing him except in due course of law. The last suit was disposed of on the statement of defendant on 21.4.2010. Thereafter a settlement was arrived at between the appellant and sons of original owner Balwant Singh according to which the appellant vacated the portion of his tenancy, rent was reduced to Rs. 15/- per month which stood paid till 30.6.2008. After sometime sons of Balwant Singh transferred the property to M/s Tamanna Realtors Pvt. Ltd. who tried to dispossess the appellant from remaining tenanted premises. The appellant again filed a suit for injunction. During the pendency of the suit, the purchaser offered a portion of the property to the appellant and executed a sale deed on payment of nominal amount because the RCA No.14 /11 2 of 10 3 appellant had already suffered a lot in pursuing litigation. A portion of the first floor measuring 66.72 Sq. Yds. Comprising of two rooms, one drawing room, two bath rooms cum toilet and one kitchen was sold vide sale deed dated 30.9.2009. All of sudden almost all part of the property was sealed by the staff of the MCD on 03.05.2010 except one or two portion including the one occupied by the appellant, on the ground of unauthorised construction. On 5.5.2010 a notice purporting u/s 349 MCD was served upon the appellant directing the appellant to vacate the premises within 24 hours so as to allow the official of the respondent to seal/demolish the said property. It was stated in the notice that the property had been booked for unauthorised construction and sealing/demolition orders u/s 343 (1)/345-A had been passed.
4. According to appellant the property was old one requiring necessary repair and before handing over possession, the owner had carried out the necessary repair. The appellant contacted official of MCD who did RCA No.14 /11 3 of 10 4 not provide details or particulars of sealing/demolition order. Hence he filed an appeal against order dated 27.4.2010 passed by Deputy Commissioner ( West ). The main attack of the appellant was that MCD could not resort to sealing without serving a show cause notice u/s 345-A. The Deputy Commissioner did not bother to consult House Tax Department which is maintaining records of the properties about existence of construction. No spot verification or inspection was carried out. The impugned sealing order neither discloses date nor extent of unauthorised construction.
5. After going through the material on record, the Ld. Appellate Tribunal dismissed the appeal vide impugned order. He rejected the plea of the appellant that by virtue of section 147 of the Act, the respondent must be deemed to have acquired knowledge of the fact that appellant had become owner of the portion of the first floor of the property by virtue of registered sale deed and any further communication in respect of said portion ought to have been made with the appellant.
RCA No.14 /11 4 of 10 5
6. Sealing order in the name of the owner/occupier is in violation of mandate contained in section 345-A and in breach of principles of natural justice. The appellant had not carried out any unauthorised construction in any portion.
7. The plea of the respondent was that there was abundant evidence to show that huge unauthorised construction had been booked and sealing order in respect of entire building had been passed after complying with the provisions of law. Show cause notice dated 16.4.2010 had been issued in the name of owner/occupier, owner/builder. The same was served by pasting on 23.4.2010. Report dated 3.5.2010 shows that out of 24 dwelling units 23 dwelling units had been sealed on that date and one unit (perhaps belonging to appellant ) was not sealed because the same was occupied. Accordingly vacation notice was directed to be issued to the occupier of the said unit. The same is in the name of owner/occupier/Ramesh Chand. ( appellant).
8. The Ld. Appellant Tribunal observed that it was not RCA No.14 /11 5 of 10 6 the case of the appellant that he was the person at whose instance alleged unauthorised construction had been carried out. Rather according to the appellant it was M/s Tamanna Realtors Pvt. Ltd. who had carried out the unauthorised construction. Mere fact that appellant purchased portion of first floor of the property from M/s Tamanna Realtors Pvt. Ltd. did not make him entitle to show cause notice u/s 345-A of the Act because it was not the appellant at whose instance alleged unauthorised construction had been carried out. Moreover the sealing order had been passed in respect of entire unauthorised construction existing in the form of stilt, ground floor, first floor, second floor and third floor. The case of the appellant could not be individualised or segregated from the remaining case.
9. I have gone through the material on record and heard the arguments. At the very outset I may mention that Section 345 A MCD Act does not speak of any show cause notice. But right of hearing is inherent right and principal of natural justice require that one should be heard before any RCA No.14 /11 6 of 10 7 adverse order is passed against him. In Ahuja Property Developers Vs. MCD 42 (1990) DLT 474 our own Hon'ble High Court held that show cause notice is must U/s 345A of the Act.
10. The question which boils down is as to whom the said notice was required to be addressed. Law requires notice to be served on owner/occupier. There is no requirement of notice being in the name of specific individual. Infact the MCD cannot be expected to know the name of owner/occupier at whose instance unauthorised construction had been carried out. That is why the legislature deemed it sufficient to provide that notice may be given to the owner /occupier by designation. In taking this view I am fortified by decision of our own Hon'ble High Court in Krishan Gopal Vs. MCD ILR (1972) 1 Delhi 272 in which it was held that there was no provision in the Act to enable MCD to know the name of the owner.
11. On analogical ground reliance can also be placed on Ram Narayan Vs. MCD 1991 Rajdhani Law Reporter 318 in which it was held that tenant is not entitled to show RCA No.14 /11 7 of 10 8 cause notice.
12. The counsel for the appellant submitted that Section 128 (6) of the Act provides that on written request by Commissioner, the Registrar or Sub Registrar of Delhi appointed under Indian Registration Act shall furnish such particulars regarding registration of instrument of transfer of immovable properties in Delhi, as the Commissioner may from time to time require. I feel that it is only enabling provision and not a obligatory provision.
13. The counsel for the respondent suitably replied the above arguments by submitting that Section 128 (1) MCD Act obliged the transferor /transferee to apply for mutation within three months of execution of instrument for the transfer or registration. It is not the case of the appellant that he ever applied for mutation.
14. Record of house tax is primarily meant for ascertaining the name and address of the person liable to pay house tax, the amount of tax, the period in arrears. It has nothing to do with the extent of construction or the age of the construction. The appellant is trying to confuse RCA No.14 /11 8 of 10 9 house tax record with unauthorised construction.
15. The counsel for the appellant relied Ms. Surinderjit & Ors. Vs. Delhi Development Authority AIR 1993 Delhi 130 in which it was held that where a property constructed long back was occupied by the parties, sealing of it by order of Vice Chairman of DDA without giving any reasons and opportunity of hearing is not proper. The same is not applicable to the facts of the given case.
16. The counsel for the appellant also relied upon Masonic Club Vs. MCD & Anr. 2000 (55) DRJ 602 in which the show cause notice was held to be bad on the ground that it did not mention the area of unauthorised portion and date of construction. The same is clearly distinguishable.
17. In the status report filed by the respondent before Lt.
Governor in pursuance of order dated 20.10.2010, it is mentioned that area of the plot is 460 sq. meters, as per Master Plan, Delhi 2021 the maximum permissible coverage is 75%, FAR is 225 and number of dwelling units are 6. As per directions of Hon'ble Supreme Court only five dwelling units are permissible. There are 24 dwelling units RCA No.14 /11 9 of 10 10 in property in question. Thus the entire building is in violation of Master Plan as well as orders of Hon'ble Supreme Court. The property was sealed in pursuance of direction dated 26.04.2010 passed by Hon'ble High Court in Civil Writ Petition No. 2771/10 titled as Sushil Kumar Vs. Chairman & Ors.
18. In my opinion the Ld. Appellate Tribunal had rightly held that on the face of plea taken by the appellant that he had not carried out any unauthorised construction, he was not entitled to any show case notice. There is no infirmity in the impugned order. The appeal is dismissed. Appeal file be consigned to record room.
Announced in open court on
this 14th March, 2012. (O.P. GUPTA)
DJ&ASJ-In-Charge(West)/ARCT
Delhi
RCA No.14 /11 10 of 10