Delhi District Court
Though Her Attorney/Husband vs North Delhi Municipal Corporation on 16 November, 2021
IN THE COURT OF SHRI GIRISH KATHPALIA,
PRINCIPAL DISTRICT & SESSIONS JUDGE (HQs)
TIS HAZARI COURTS, DELHI.
MCD Appeal No. 09/2019
Ms. VINITA JAIN
W/o VIJAY KUMAR JAIN
R/o 1790, OUTRAM LINE
GTB NAGAR, DELHI
THOUGH HER ATTORNEY/HUSBAND
Shri VIJAY KUMAR JAIN
S/o Shri RAJ KUMAR JAIN
R/o 1790, OUTRAM LINE
GTB NAGAR, DELHI
....APPELLANT
VERSUS
NORTH DELHI MUNICIPAL CORPORATION
THROUGH ITS COMMISSIONER
17TH FLOOR, SPM CIVIC CENTRE
NEW DELHI
.......RESPONDENT
Date of filing : 01.05.2019
First date before this court : 04.07.2019
Arguments concluded on : 10.11.2021
Date of Decision : 16.11.2021
APPEARANCE : Shri Dilip Rastogi, counsel for appellant
Shri Ashutosh Gupta, counsel for respondent
JUDGMENT
1. By way of this appeal brought under Section 347D of the Delhi Municipal Corporation Act, the appellant has assailed order dated 26.04.2019 of the learned Appellate Tribunal MCD, whereby her interim injunction application was dismissed. On service of MCD Appeal No. 09/2019 Vinita Jain vs NDMC Page 1 of 6 pages GIRISH KATHPALIA Date:
Digitally signed by GIRISH KATHPALIA2021.11.16 13:39:49 +05'30' notice, the respondent corporation entered appearance through counsel. I heard learned counsel for both sides and examined the records of AT MCD as well as of the North DMC.
2. As per the case set up by the appellant, being owner of the ground floor, first floor, second floor and third floor of premises bearing No. 3958/3, Gali Satte Wali, Chawri Bazar, Delhi under the registered sale deed dated 17.09.2008, when she was carrying out necessary repairs and renovation work in the year 2017, as envisaged in clause 2.14 of the New Unified Building Bylaws 2016, one of her tenants on the ground floor of the subject premises filed a civil suit as a counterblast to the eviction proceedings initiated by her against the said tenant. In the said suit, the tenant of the appellant alleged that the appellant had raised unauthorized construction in the subject property. According to the appellant, officials of the respondent corporation being hand in glove with the tenant, issued a show cause notice under Section 343 read with Section 344(1) of the Delhi Municipal Corporation Act, to which she sent reply dated 25.02.2019, duly received in the office of the respondent. After receipt of reply to the show cause notice, the respondent passed the demolition order dated 28.02.2019, without affording any opportunity to the appellant to be heard. Therefore, the appellant filed an appeal under Section 343(2) of the Delhi Municipal Corporation Act before the learned Appellate Tribunal MCD, assailing the demolition order dated 28.02.2019. In the said appeal, the learned ATMCD issued notice to the respondent for 26.04.2019. On 26.04.2019, after hearing both MCD Appeal No. 09/2019 Vinita Jain vs NDMC Page 2 of 6 pages GIRISH KATHPALIA Digitally signed by GIRISH KATHPALIA Date: 2021.11.16 13:39:30 +05'30' sides, the learned ATMCD dismissed the interim application for stay on the operation of the demolition order. Hence, the present appeal.
3. The respondent corporation opted not to file reply to the memo of appeal but opposed the same.
4. During final arguments, learned counsel for appellant took me through order dated 02.05.2019 of my learned predecessor whereby operation of the demolition order dated 28.02.2019 was stayed on the ground that the demolition order did not take into consideration the reply dated 25.02.2019 to the show cause notice. Learned counsel for appellant submitted that the legality of the demolition order dated 28.02.2019 is pending adjudication before the learned ATMCD, but till decision on the same, the demolition order is liable to be stayed.
5. On the other hand, learned counsel for respondent argued that even if the reply had been considered, it would have not made any difference for the purposes of passing demolition order because the appellant did not submit any evidence to show that the construction in question had been done prior to the year 2006. It was also contended by the learned counsel for respondent that the impugned order inadvertently recorded that no reply to show cause notice had been filed.
6. In the impugned order, despite having noticed that the reply dated 25.02.2019 to the show cause notice had been filed, but MCD Appeal No. 09/2019 Vinita Jain vs NDMC Page 3 of 6 pages GIRISH KATHPALIA Digitally signed by GIRISH KATHPALIA Date: 2021.11.16 13:39:11 +05'30' the demolition order wrongly mentioned that no reply had been filed, the learned ATMCD dismissed the interim stay application on the ground that the learned counsel for appellant could not produce any document reflecting the existence of the subject property prior to the year 2006. In the impugned order, the learned ATMCD held thus:
"I have asked the counsel for appellant to show the documents regarding existence of the property prior to the year 2006 as stated in the reply to the show cause notice and the counsel for appellant has failed to point out any documents showing the existence of the subject property prior to the year 2006.
Nothing is mentioned in the appeal as to when the third floor was constructed in case the ground floor to second floor was in existence at the time of purchase of the property.
In the absence of any document in support of the claim of the appellant in the reply filed to the show cause notice and no document regarding existence of the entire property in the same condition has been placed on record, the appellant has not approached the tribunal with clean hands, therefore, in the absence of any supporting documents in support of the claim of the appellant, I do not find any ground to grant interim stay against the impugned demolition order dated 28.02.2019. The interim stay application is dismissed accordingly."
Having so dismissed the interim stay application, the learned ATMCD posted the matter for filing further documents if any by the appellant and for further arguments.
7. The question as to whether or not the third floor of the subject property was constructed prior to the year 2006 is a matter to be considered by the learned ATMCD in the appeal filed by the present appellant under Section 343(2) of the Delhi Municipal MCD Appeal No. 09/2019 Vinita Jain vs NDMC Page 4 of 6 pages GIRISH KATHPALIA Digitally signed by GIRISH KATHPALIA Date: 2021.11.16 13:38:52 +05'30' Corporation Act. And it is for consideration of this question that the learned ATMCD vide impugned order posted the appeal for filing of further documents.
8. But so far as the interim relief is concerned, it cannot be ignored that the appellant was deprived of a fair opportunity to be heard and at the same time, it also cannot be ignored that the demolition order prima facie suffers non-application of mind.
9. Admittedly, reply dated 25.02.2019 to the show cause notice, (page 29 of the ATMCD records) was duly received by the respondent, but the demolition order dated 28.02.2019 (page 30 of the ATMCD records) wrongly mentioned that no reply to the show cause notice had been received. Had the quasi-judicial authority been aware of the reply to the show cause notice, the appellant would have been given an opportunity to produce the necessary documents, which did not happen and thereby the appellant was deprived of an opportunity to be heard effectively.
10. If submission of learned counsel for respondent is accepted that it was inadvertently mentioned in the demolition order that no reply has been received, that in itself would at least prima facie taint the demolition order on the ground of non-application of mind.
11. Therefore, in my considered view, the appellant had succeeded in establishing at least prima facie case before the learned MCD Appeal No. 09/2019 Vinita Jain vs NDMC Page 5 of 6 pages GIRISH KATHPALIA Digitally signed by GIRISH KATHPALIA Date: 2021.11.16 13:38:32 +05'30' ATMCD that she was not given effective opportunity to be heard, and balance of convenience obviously favouring the appellant as the subject construction has not so far been demolished, denial of interim injunction would cause irreparable damage to the appellant. Consequently, the appellant is certainly entitled to be protected by way of stay on the operation of the demolition order impugned before the learned ATMCD till disposal of the appeal under Section 343(2) of the Delhi Municipal Corporation Act.
12. Of course, a rider is also added that the above observations are only prima facie and shall not bind the learned Tribunal for arriving at independent conclusion for disposal of the appeal.
13. In view of above discussion, the impugned order of learned ATMCD is set aside and the present appeal is allowed thereby holding that the operation of the demolition order dated 28.02.2019 shall remain stayed till disposal of the appeal by the learned ATMCD.
14. The ATMCD records be sent back alongwith copy of this judgment and appeal file be consigned to records. Announced through video conferencing on this 16th day of November, 2021 Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date: 2021.11.16 13:38:14 +05'30' (GIRISH KATHPALIA) Principal District & Sessions Judge (HQ) Tis Hazari Courts, Delhi MCD Appeal No. 09/2019 Vinita Jain vs NDMC Page 6 of 6 pages