Delhi District Court
Smt. Madhu Kalra vs The Commissioner on 7 June, 2018
IN THE COURT OF SHRI TALWANT SINGH
DISTRICT & SESSIONS JUDGE (HQs)
TIS HAZARI COURTS, DELHI
CNR No.: DLCT010104282017
MCD Appeal 14/2017
Smt. Madhu Kalra
W/o Sh. Pradeep Kalra
R/o B506, Welcome Apartment
Sector9, Rohini
Delhi110085 .....Appellant
Versus
The Commissioner
North DMC, Minto Road,
New Delhi
Through Asstt. Engineer (Building)I
Civil Line Zone, 16, Rajpur Road
Delhi. .....Respondent
Date of filing of Appeal : 19.07.2017
Date of reserving Order : 14.05.2018
Date of Order : 07.06.2018
ORDER ON ON APPEAL UNDER SECTION 347(D)
OF DELHI MUNICIPAL CORPORATION ACT, 1957
MCD Appeal 14/17 Madhu Kalra v. The Commissioner, North DMC Page 1 of 7
The appellant has filed the present appeal against impugned order dated 02.06.2017 passed by Ld. AT:MCD Delhi in which an appeal filed by the appellant against demolition order of North DMC dated 01.10.2015 was dismissed.
2. Notice of the appeal was issued to the respondent. Record of AT:MCD was summoned. I have heard Ld. Counsel for the parties and perused the record.
3. It is submitted by Ld. Counsel for the appellant that no show cause notice was issued prior to passing of demolition order; even no demolition order was served; property as shown in show cause notice is different from property of the appellant; property of the appellant was damaged in fire and same was repaired/ reconstructed for which no sanction/permission of the North DMC was required as per Building Bye Laws 6.4.1.; one Sunit Pal Singh had filed a suit in Civil Court for permanent injunction against the appellant (defendant No.3 there); notice is to be addressed to owner/occupier; Site Plan shows that it is a three sided property in a Gali but notice shows that it is on main road and only 2 sides are open; even address mentioned in the notice is wrong; contents of the affidavit with photos were admitted by the MCD before AT:MCD; wrong report regarding service of notice was filed as it says that no one was found present, so it was pasted and there is a letter dated 13.10.2015 which states that demolition order was passed but the demolition order itself is dated 01.10.2016.
MCD Appeal 14/17 Madhu Kalra v. The Commissioner, North DMC Page 2 of 74. On the other hand, Ld. Counsel for North DMC has submitted that notice dated 01.10.2015 was served and report was filed on 05.10.2015; under Section 334 of the DMC Act, permission/ sanction is required for reconstruction; appellant had not filed report showing extent of construction before AT:MCD and MCD's action was disclosed by A.E. in Civil suit.
5. In this case, an FIR was registered on 21.09.2015 as unauthorized construction of one hall at ground floor after demlishing old existing structure and unauthorized construction of one hall at first floor of property No. 68, Rajendra market, Kashmere Gate, Delhi was noticed. Thereafter, show cause notice was issued on 21.09.2015 itself to the owner/occupier/builder of property No. 68, Rajendra market, Kashmere Gate, Delhi. On 22.09.2015, official of the MCD visited the site in question for service of show cause notice but no one was found present, hence, permission to serve the notice through pasting was sought. Again on 23.09.2015, site in question was visited but no one was found present and since permission to serve the notice by way of pasting was given, hence, notice was pasted at the site on 24.09.2015. Reply was to be given by the concerned party within 3 days. No reply was given by the appellant, hence, vide noting dated 01.10.2015, approval to issue demolition order was sought and consequently, demolition order dated 01.10.2015 was passed in respect of property No. 68, Rajendra market, Kashmere Gate, Delhi. No one was found present to receive the demolition order, hence, after grant of permission to serve MCD Appeal 14/17 Madhu Kalra v. The Commissioner, North DMC Page 3 of 7 the demolition order by way of pasting, the demolition order was pasted on 05.10.2015 at the site in question.
6. There is another noting dated 13.10.2015 seeking approval for issuing demolition order. But there is also such like noting dated 01.10.2015, hence, such like subsequent noting does not affect the case of the MCD as demolition order was already passed on 01.10.2015 and same was served on the appellant by way of pasting on 05.10.2015. Even the photographs placed on record show that altogether a new/fresh construction was raised in the property in question and by no stretch of imagination it can be said that only repair/renovation work was done. Even no dispute has been raised on behalf of the appellant as to authenticity of such photographs.
7. Section 444(d)(ii) of the DMC Act provides that if the addressee of the notice can not be found, service can be effected by affixing the same on some conspicuous part of his last known place of residence or business, if within the Union Territory of Delhi. When the show cause notice or demotion order were sought to be served on the appellant, she was not found at property in question and having no other option, the service of show cause notice and demolition order was rightly effected by way of pasting. Thus no fault can be found with such service.
8. Limitation to file an appeal against demolition order is 6 days. Demolition order was pasted on 05.10.2015, whereas appeal against the said order was filed on 18.12.2015 i.e. after about one month MCD Appeal 14/17 Madhu Kalra v. The Commissioner, North DMC Page 4 of 7 and 6 days. Thus, it was rightly held by AT:MCD that appeal was also barred by limitation.
9. Even otherwise in the FIR, show cause notice and demolition order, description of the property is given as shop No. 68, Rajendra Market, Kashmere Gate, Delhi except in the site plan where it is given as shop No. 68, Rajendera Market, Tis Hazari, Delhi. There is only one Rajendra Market under the jurisdiction of North DMC, which is near Tis Hazari but abutting Kashmere Gate. Such a variance can not be said to be fatal to the case of North DMC and appellant could not have been misled by such variation in description of the property.
10. Ld counsel for the appellant has placed reliance on the following judgments :
(1) Krishan Gopal vs. Municipal Corporation of Delhi ILR 1992 (1) Delhi 272 wherein it has been held that service of the notice is to be effected on the owner or occupier of the land or building. It is further held that every person at whose instance the work or erection may have been commenced has got to be served. In the present case, notice to show cause was duly served by way of affixation and it was addressed to owner/occupier/builder.
(2) Mahinder Singh & Ors. vs. Municipal Coproration of Delhi 34 (1988) DLT 118. In this case show cause notice was issued in the name of father of the owner of building;
owner filed reply and demolition order was passed against the owner. It was held that demolition order was bad as no show cause notice was served on the owners. Hence, in the present case notice was duly served upon the owner/occupier/builder by affixation.
MCD Appeal 14/17 Madhu Kalra v. The Commissioner, North DMC Page 5 of 7(3) North Delhi Municipal Corporation vs. Raju Soni 2018 (1) CLJ 3 (NOC) Del wherein demolition was done without notice to the owner/occupier, demolition was held to be bad. In the present case, due notice to show cause dated 21.09.2015 was served by affixation.
(4) Dev Bhushan since deceased through Lrs vs. Pradeep Kumar 2018 (1) CLJ 279 (Del.). In this case, notice was affixed in presence of an employee of the petitioner but there was no repor of refusal to receive notice but Ld. ARC held that respondent was served; respondent was proceeded ex parte; process server was never examined. It was held that there was no servive of summons, hence, eviction order was set aside. This judgment is not applicable, because no one was found at the site so the notice was served by way of affixation on owner/occupier/builder.
11. There is no dispute as to ratios laid down these judgments. But in this case, appellant/owner of the shop could not be met at the spot, hence, show cause notice/ demolition order were duly served as provided Section 444(d)(ii) of the DMC Act. No reply was given by the appellant to show cause notice. Hence, demolition order was passed. The photographs on record support the contention of North DMC that a new construction was being raised without sanction of building plan. Another grudge of the appellant is that the spot of illegal construction as shown in the show cause notice is not her property. There may be minor errors in hand drawn map of the show cause notice, but the same has no effect on merits as the notice was duly served on the owner/builder/occupier by affixation at the shop in question.
MCD Appeal 14/17 Madhu Kalra v. The Commissioner, North DMC Page 6 of 712. In view of abov discussion, I hold that there is no illegality or impropriety in the impugned order. Appeal has no merit. Same is accordingly dismissed. Record of AT:MCD be sent back along with copy of the order.
Appeal file be consigned to record room.
Digitally signed by TALWANT TALWANT SINGH
SINGH Date: 2018.06.08
12:46:23 +0530
Announced in the open Court (TALWANT SINGH)
Dated: 7th June, 2018 District & Sessions Judge (HQs)
Tis Hazari Courts : Delhi
MCD Appeal 14/17 Madhu Kalra v. The Commissioner, North DMC Page 7 of 7