Delhi District Court
Delhi Development Authority vs Shri Rajesh Kumar Yadav on 22 September, 2014
IN THE COURT OF Ms. ANU MALHOTRA
DISTRICT & SESSIONS JUDGE (WEST) : DELHI
(1) RCA No. 05/2013
Unique ID No. 02401C0000442013
Delhi Development Authority
Through its Vide Chairman
Vikas Sadan, I.N.A.
New Delhi. . . . . Appellant
versus
Shri Rajesh Kumar Yadav
R/o 77, Venus Apartments
Rohtak Road, Inder Enclave
New Delhi - 110 041. . . . . Respondent
(2) RCA No. 11/2013
Unique ID No. 02401C0000352013
Delhi Development Authority
Through its Vide Chairman
Vikas Sadan, I.N.A.
New Delhi. . . . . Appellant
versus
Shri Khushal Singh
S/o. Shri Gobind Singh
R/o 53, Venus Apartments
Rohtak Road, Inder Enclave
New Delhi - 110 041. . . . . Respondent
(3) RCA No. 07/2013
Unique ID No. 02401C0000272013
Delhi Development Authority
Through its Vide Chairman
Vikas Sadan, I.N.A.
New Delhi. . . . . Appellant
versus
RCA Nos. 01/13 to 13/13 Page1of15
Shri Manju Goyal
W/o. Shri Vivek Goyal
R/o 47, Venus Apartments
Rohtak Road, Inder Enclave
New Delhi - 110 041. . . . . Respondent
(4) RCA No. 13/2013
Unique ID No. 02401C0000392013
Delhi Development Authority
Through its Vide Chairman
Vikas Sadan, I.N.A.
New Delhi. . . . . Appellant
versus
Shri J. P. Srivastva
S/o. Late Shri Kamleshwar Prasad
R/o 44, Venus Apartments
Rohtak Road, Inder Enclave
New Delhi - 110 041. . . . . Respondent
(5) RCA No. 10/2013
Unique ID No. 02401C0000322013
Delhi Development Authority
Through its Vide Chairman
Vikas Sadan, I.N.A.
New Delhi. . . . . Appellant
versus
Smt. Kamla Devimal
W/o. Shri Jagdish Prasadmal
R/o 46, Venus Apartments
Rohtak Road, Inder Enclave
New Delhi - 110 041. . . . . Respondent
(6) RCA No. 04/2013
Unique ID No. 02401C0000472013
RCA Nos. 01/13 to 13/13 Page2of15
Delhi Development Authority
Through its Vide Chairman
Vikas Sadan, I.N.A.
New Delhi. . . . . Appellant
versus
Smt. Nirmal Sharma
W/o. Shri Sunil Sharma
R/o 137, Venus Apartments
Rohtak Road, Inder Enclave
New Delhi - 110 041. . . . . Respondent
(7) RCA No. 12/2013
Unique ID No. 02401C0000372013
Delhi Development Authority
Through its Vide Chairman
Vikas Sadan, I.N.A.
New Delhi. . . . . Appellant
versus
Shri Vijay Saxena
S/o. Shri Prem Bhadur Saxena
R/o 119, Venus Apartments
Rohtak Road, Inder Enclave
New Delhi - 110 041. . . . . Respondent
(8) RCA No. 03/2013
Unique ID No. 02401C0000492013
Delhi Development Authority
Through its Vide Chairman
Vikas Sadan, I.N.A.
New Delhi. . . . . Appellant
versus
Smt. S. K. Asthana
W/o. Shri B. P. Asthana
R/o 150, Venus Apartments
Rohtak Road, Inder Enclave
New Delhi - 110 041. . . . . Respondent
RCA Nos. 01/13 to 13/13 Page3of15
(9) RCA No. 01/2013
Unique ID No. 02401C0000342013
Delhi Development Authority
Through its Vide Chairman
Vikas Sadan, I.N.A.
New Delhi. . . . . Appellant
versus
Shri D. K. Sinha
S/o. Late Shri M. P. Sinha
R/o 148, Venus Apartments
Rohtak Road, Inder Enclave
New Delhi - 110 041. . . . . Respondent
(10) RCA No. 09/2013
Unique ID No. 02401C0000302013
Delhi Development Authority
Through its Vide Chairman
Vikas Sadan, I.N.A.
New Delhi. . . . . Appellant
versus
Smt. Rinkee Singh
W/o. Shri Rudradev Singh
R/o 42, Venus Apartments
Rohtak Road, Inder Enclave
New Delhi - 110 041. . . . . Respondent
(11) RCA No. 06/2013
Unique ID No. 02401C0000422013
Delhi Development Authority
Through its Vide Chairman
Vikas Sadan, I.N.A.
New Delhi. . . . . Appellant
versus
Smt. Usha Goyal
W/o. Shri S. K. Goyal
RCA Nos. 01/13 to 13/13 Page4of15
R/o 43, Venus Apartments
Rohtak Road, Inder Enclave
New Delhi - 110 041. . . . . Respondent
(12) RCA No. 08/2013
Unique ID No. 02401C0000292013
Delhi Development Authority
Through its Vide Chairman
Vikas Sadan, I.N.A.
New Delhi. . . . . Appellant
versus
Shri Pramod Kumar Trivedi
S/o. Late Shri C. B. Trivedi
R/o 136, Venus Apartments
Rohtak Road, Inder Enclave
New Delhi - 110 041. . . . . Respondent
and
(13) RCA No. 02/2013
Unique ID No. 02401C0000512013
Delhi Development Authority
Through its Vide Chairman
Vikas Sadan, I.N.A.
New Delhi. . . . . Appellant
versus
Shri J. C. Khanna
S/o. Late Shri H. R. Khanna
R/o 144, Venus Apartments
Rohtak Road, Inder Enclave
New Delhi - 110 041. . . . . Respondent
Date of institution : 03.01.2013
Judgment Reserved on : 28.07.2014
Date of pronouncement : 22.09.2014
RCA Nos. 01/13 to 13/13 Page5of15
JUDGMENT
This judgment shall dispose of 13 appeal Nos. 05/2013, 11/2013, 07/2013, 13/2013, 10/2013, 04/2013, 12/2013, 03/2013, 01/2013, 09/2013, 06/2013, 08/2013 and 02/2013 instituted on 03.01.2013 by the appellant the Delhi Development Authority through its Vide Chairman (hereinafter referred to as "the DDA") against different flat owners / respondents to the appeals of the respondents Rajesh Kumar Yadav, Khushal Singh, Smt. Manju Goyal, Shri J. P. Srivastva, Smt. Kamla Devimal, Smt. Nirmal Sharma, Vijay Saxena, Smt. S. K. Asthana, D. K. Sinha, Smt. Rinkee Singh, Smt. Usha Goyal, Pramod Kumar Trivedi and J. C. Khanna all of the same society i.e. Venus C.G.H.S., Inder Enclave, Paschim Vihar, New Delhi, all of which have been filed by the DDA against the common impugned judgment dated 23.11.2012 of the ld. Addl. District & Sessions Judge cum PO, Appellate Tribunal, MCD in appeal Nos. 586/AT/MCD/12, 588/AT/MCD/12, 604/AT/MCD/12, 605/AT/MCD/12, 606/AT/MCD/12, 607/AT/MCD/12, 610/AT/MCD/12, 611/AT/MCD/12, 612/AT/MCD/12, 613/AT/MCD/12, 614/AT/MCD/12, 615/AT/MCD/12 and 616/AT/MCD/12.
Vide the impugned judgment, the ld. Appellate Tribunal, MCD has quashed the order of demolition and sealing dated 22.08.2012 bearing No. F.23(47)/84/Bldg./31 issued by Shri K. M. Saxena, Deputy Director (Layout) Building, DDA addressed to the President / Secretary of the society i.e. Venus C.G.H.S., Inder RCA Nos. 01/13 to 13/13 Page6of15 Enclave, Paschim Vihar, New Delhi as a whole with it having been directed to the effect that it cannot be implemented even against those flat owners who have not appeared before the Tribunal holding it patently illegal and unsustainable. The appeals filed by the respondents herein before the ld. Appellate Tribunal, MCD against the said common demolition / sealing order dated 22.08.2012 of the Deputy Director (Layout) Building, DDA were filed as the said common demolition / sealing order dated 22.08.2012 was addressed to the President / Secretary of the society i.e. Venus C.G.H.S., Inder Enclave, Paschim Vihar, New Delhi mentioning therein that various types of unauthorized encroachments, illegal constructions, extentions, etc. had been raised against the sanctioned plan of the society by the different flat owners at different places either inside their flats or in the open / common area as detailed in the attached list and show cause notice was issued to the society and thereafter, office bearers of the society and few members attended some hearings but none took any responsibility of removal / rectification of the illegalities.
The respondents to the present appeals, who were the appellants before the ld. Appellate Tribunal, MCD thus sought that it was obligatory upon the DDA to issue a show cause notice and to give a reasonable opportunity to the person affected before passing any individual order and that issuance of a show cause notice to the society alone would not suffice to give a right of hearing to the individual flat owner to present his or her point of view.
RCA Nos. 01/13 to 13/13 Page7of15 It was also submitted in the appeals before the ld. Appellate Tribunal, MCD that the Deputy Director (Layout) Building, DDA i.e. Shri K. M. Saxena had himself in some cases realizing this aspect that the issuance of a show cause notice and giving an opportunity of having heard to the individual flat owners is essential had withdrawn previous orders in some cases and initiated fresh proceedings.
Vide the impugned order apart from quashing the said order of demolition and sealing dated 22.08.2012 of the DDA bearing No. F.23(47)/84/Bldg./31 issued by Shri K. M. Saxena, Deputy Director (Layout) Building, DDA addressed to the President / Secretary of the society i.e. Venus C.G.H.S., Inder Enclave, Paschim Vihar, New Delhi, the delay in submission of the appeals by the flat owners was also condoned taking into account that the flat owners had not been served with any notice and had learnt of the impugned order only when the DDA officials reached the site.
Vide the impugned order of the ld. Appellare Tribunal, MCD, it was also observed that the record and paragraph No. 13 of the affidavit of the Director (Bldg.) also indicated that some of the construction were in existence even prior to the year 2007 and that representations had also been received for not taking action due to the bar of the Delhi Laws (Special Provisions) Act, 2011 and thus, the determination of each and every flat owners' case to ascertain whether such protection was available or not, was essentially to be looked into.
RCA Nos. 01/13 to 13/13 Page8of15 Vide the impugned judgment, the ld. Appellate Tribunal, MCD thus directed : "In view of the above discussions, the order of demolition and sealing dated 22.08.2012 bearing No. F.23(47)/84/Bldg./31 issued by Shri K. M. Saxena, Deputy Director (Layout) Building, DDA addressed to the President / Secretary of the society i.e. Venus C.G.H.S. Ltd., Inder Enclave, Paschim Vihar, New Delhi is quashed and set aside as a whole. It can not be implemented even against those flat owners who have not approached this Tribunal because it is patently illegal and unsustainable.
All the 13 appellants are directed to furnish the details of present existing construction in their flats or surrounding area under their occupation if any alongwith relevant photographs as well as the plan giving measurement and description accompanied with an affidavit containing undertaking that no further construction shall be undertaken by them in their respective premises nor shall they undertake any addition, alteration, renovation, etc. without obtaining written prior permission of the Director (Bldg.). This compliance be done within 15 days failing which adverse inference shall be taken in subsequent proceedings if any against the defaulting appellant.
It is further ordered that respondent shall now issue fresh show cause notice to all the individual flat owners / occupants of the society as well as to society specifying the details of each and every unauthorized construction, deviation, encroachment, etc. within two months from today. The help of record of RCA Nos. 01/13 to 13/13 Page9of15 society can be also taken to find out the details of the owner / occupants. DDA is at liberty to conduct flat to flat survey or inspection of the society to ascertain the names and details of the owners and occupants and the latest position of the unauthorized construction, etc. The inspection of flats of 13 appellants shall be specifically carried out to ascertain whether they had submitted correct position of their flats, etc. in the plans and photographs. Liberty is given to the DDA to take the photographs and do videography of the inspection, survey as well as proof of service of show cause notice, etc. The show cause notices shall be served personally upon each flat owner/ occupant preferably at first instance and one copy be sent by speed post also. Every individual flat owner/occupant shall be given time of 15 days from the date of service to submit reply of the show cause notice and lateron shall also be given personal hearing. Flat owner/occupant can appear personally or through duly authorized representative for personal hearing before the quasi judicial authority on the date and time as fixed by him. In case, he or she would not be able to attend the personal hearing before quasi judicial authority, then submission in writing can be sent.
Now the entire proceedings shall be conducted by the Director (Bldg.) himself personally and has to be completed within the maximum period of one year. He is at liberty to bifurcate the case of each individual or can keep it in small groups as may be convenient to him but the speaking order shall deal with each flat separately. The concerned Director after considering the reply of each flat owner and RCA Nos. 01/13 to 13/13 Page10of15 submission made during personal hearing shall decide the case of each appellant and other flat owners separately by giving reasons. It is further directed that no flat owner/occupant shall seek any adjournment on any ground before quasi judicial authority for submitting reply of the show cause notice or for personal hearing. Concerned Director shall also specifically deal with the issue of availability of protection to each flat owner separately under Delhi Laws (Special Provisions) Act, 2011 if any.
Society as a whole is at liberty to apply for regularization of the unauthorized construction and if any revised plan for enhancement of FAR or compounding/regularization of unauthorized construction as the case may be is submitted on behalf of the society with the respondent for and on behalf of all members of the society within the period of two months, then respondent shall decide the same also expeditiously within the period of six months thereafter subject to completion of all the necessary formalities by the society and its members. It is also clarified that the benefit of excess FAR shall go to all the flat owners in the society in equal proportions but each individual flat owner shall have no right to apply individually for regularization of construction qua his or her flat only as at present rules do not permit for it.
Keeping in view the above observations especially non compliance of the specific order dated 5112012 by the Vice Chairman despite service of the copy of order in his office, non submission of any explanation of the show cause notice even in the affidavit of Director RCA Nos. 01/13 to 13/13 Page11of15 (Bldg.), condemnable approach of the respondent DDA in adopting double standards in similar situation, using pick and choose policy in giving benefit to some societies by following the judgment of High Court but creating doubt about the correctness of the same in respect of society of the appellants, repeatedly committing mistakes again and again by same officer and not mending the ways despite having ful knowledge of the guidelines and law laid down by our own High Court as well as taking of vague and unnecessary grounds in the affidavit of Director (Bldg.), I hereby by exercising the powers given under Rule 19(3) of Delhi Municipal Corporation Appellant Tribunal (Procedure) Rules, 1986, direct respondent DDA to pay litigation costs of Rs. 2,000/ each to all 13 appellants. DDA is also burdened with damages of Rs. 25,000/ payable in Prime Minister's Relief Fund as damages/compensatory costs under Rule 19 (1) of Delhi Municipal Corporation Appellate Tribunal (Procedure) Rules, 1986. Respondent is directed to deposit the above costs through separate cheques in the names of appellants and PM Relief Fund within 15 days with the Registrar of the Tribunal failing which it can be recovered through execution proceedings.
Accordingly, all the 13 present appeals are disposed off. Main signed judgment be kept in file No. 586/AT/MCD/2012 and copy of the same be kept in each file. One copy of the judgment be sent to Vice Chairman and Chief Legal Advisor of the DDA for information and compliance. Record of the respondent if any be returned with the copy of this judgment and appeal files be consigned to record room.
RCA Nos. 01/13 to 13/13 Page12of15 Notice of the appeals was issued to the respondents, who put in appearance and contested the appeals.
Written submissions on behalf of either side have been submitted and perused.
The records of the ld. Appellate Tribunal, MCD has also been requisitioned and perused.
On a consideration of the rival submissions addressed on behalf of either side, taking into account the factum that the alleged unauthorized constructions are alleged to have been made differently by each flat owner, the aspect of the applicability of Delhi Laws (Special Provisions) Act, 2011 to each flat owned by the respondents to the present appeals is essentially to be considered and cannot be ignored.
Furthermore, it is a cardinal principle of natural justice that none can be condemned without heard. In these circumstances, the demolition order of the property, which is bound to have serious repercussions, if made without an opportunity of being heard being granted to the person, who would be aggrieved thereby apparently cannot be sustained.
In these circumstances, it is held that there is no infirmity in the impugned judgment dated 23.11.2012 of the ld. Appellate Tribunal, MCD in appeals Nos. 586/AT/MCD/12, 588/AT/MCD/12, 604/AT/MCD/12, 605/AT/MCD/12, 606/AT/MCD/12, 607/AT/MCD/12, 610/AT/MCD/12, 611/AT/MCD/12, 612/AT/MCD/12, 613/AT/MCD/12, 614/AT/MCD/12, 615/AT/MCD/12 and 616/AT/MCD/12 whereby RCA Nos. 01/13 to 13/13 Page13of15 the order of demolition and sealing dated 22.08.2012 issued by Shri K. M. Saxena, Deputy Director of the DDA bearing No. F.23(47)/84/Bldg./31 issued by Shri K. M. Saxena, Deputy Director (Layout) Building, DDA addressed to the President / Secretary of the society i.e. Venus C.G.H.S., Inder Enclave, Paschim Vihar, New Delhi has been quashed and set aside as a whole.
The appellant i.e. DDA and the respondents to the present appeals are thus directed to abide by the directions dated 23.11.2012 of the ld. Appellate Tribunal, MCD in toto. The appeals of the DDA bearing RCA Nos. 05/2013, 11/2013, 07/2013, 13/2013, 10/2013, 04/2013, 12/2013, 03/2013, 01/2013, 09/2013, 06/2013, 08/2013 and 02/2013 are thus dismissed and the interim stay granted vide order dated 03.01.2013 is vacated.
The files be consigned to the Record Room and the records of ld. Appellare Tribunal, MCD be returned.
Original judgment be placed on the records of RCA No. 05/2013 and a copy thereof be placed on the records of all other connected appeals.
Announced in Open Court
today this the 22nd day of ( Anu Malhotra )
September, 2014 District & Sessions Judge (West)
Tis Hazari Courts/Delhi
RCA Nos. 01/13 to 13/13 Page14of15
RCA Nos. 01/13 to 13/13 Page15of15