Delhi District Court
Mehrasons Jewellers Pvt. Ltd vs Municipal Corporation Of Delhi on 13 March, 2012
IN THE COURT OF MRS. SUNITA GUPTA:
DISTRICT & SESSIONS JUDGE: DELHI
MCD appeal No. 03/2012
Unique ID No. 02401C0600682011
Mehrasons Jewellers Pvt. Ltd.
C/o S-555, Greater Kailash Part-II,
New Delhi.
Through Mr. Pawan Mehra,
Director. ...........Appellant
Versus
1- Municipal Corporation of Delhi,
through its Commissioner,
Town Hall,
New Delhi
2- The Deputy Commissioner,
Municipal Corporation of Delhi,
Karol Bagh Zone,
New Delhi.
3- Assistant Engineer (Building) - I,
Karol Bagh Zone,
Nigam Bhawan,
D.B. Gupta Road,
Dev Nagar,
New Delhi-110 005. ..............Respondents.
Date of institution of appeal : 22.12.2011
Date when final arguments were heard: 02.03.2012
Date of pronouncement of judgment :13.03.2012.
JUDGMENT :-
Appellate jurisdiction of this court has been invoked (MCD Appeal No.03/2012) (Page 1 of 16) under Section 347-D Delhi Municipal Corporation (for short, the DMC Act) feeling aggrieved by the order dated 31.10.2011 passed by the Appellate Tribunal, Municipal Corporation of Delhi (for short, the MCD) in appeal No. 623/ATMCD/2010.
2- Briefly stated the facts giving rise to the filing of the present appeal are that the Appellant came to be owner of entire basement, half ground floor, half first floor, complete second floor, staircase, terrace rights and open spaces alongwith the undivided share in the plot underneath of the property situated at 2, Ajmal Khan Road, New Delhi by virtue of agreement to sell, general power of attorney, coupled with other documents executed in their favour by one M/s. Bombay Builders Pvt. Ltd, sometimes in the year, 1995. One Mr. Ramesh Kumar Madan has alleged that he is the owner of the other half of the property. In order to put the property to good use, the appellant carried out certain internal repairs works and some renovation works in their portion of the building in the month of May-June, 2010 and also undertook the work of repairing the staircase leading upto the first floor and the second floor of the property. Before doing so, the appellant duly informed the respondent vide letter dated 15.05.2010. Shri Ramesh Madan filed a complaint with the police and the MCD, alleging that the appellant is carrying on illegal and unauthorized construction in their portion of the premises. Not only this, he also filed a civil suit seeking permanent and (MCD Appeal No.03/2012) (Page 2 of 16) mandatory injunction against the appellant in which the MCD was also made a party. A detailed reply was filed by the Appellant. In the meantime, a show cause notice dated 07.07.2010 was received by the Appellant from the MCD. In response to which, appellant gave a detailed reply on 09.07.2010 and some additional submissions on 13.07.2010. The appellant was served with the notice dated 13.07.2010 from the MCD, whereby the appellant was directed to appear in person on 20.07.2010. The appellant made detailed written submissions on 19.07.2010. The appellant also filed an application for regularization as per appendix `Q'. In order to avoid any controversy, the Appellant had applied for the regularization of deviations and offered to pay the necessary fees and charges. A demolition order dated 13.09.2010 was issued alleging that the existing construction in the premises was unauthorized and could not be regularized and directed that it be demolished within six days. Feeling aggrieved by this order, an appeal was preferred before the Appellate Tribunal (MCD), which was dismissed vide impugned order dated 31.10.2011. This order has been challenged by filing the present appeal. Alongwith the appeal, there is also one application under Section 5 read with Section 14 of the Limitation Act, 1963.
3- Notice of the appeal was given to the respondent.
(MCD Appeal No.03/2012) (Page 3 of 16) 4- I have heard Shri Arun Batta, Counsel for the Appellant
and Ms. Pooja Kalra, Counsel for the respondent and have perused the records.
5- Firstly, I shall take up the application under Section 5 r/w Section 14 of the Limitation Act. It was submitted by the learned Counsel for the appellant that the appellant had preferred a Writ Petition (C) No. 8921/2011 in the Hon'ble High Court of Delhi against the impugned judgment and order dated 31.10.2011 and the writ petition was filed on 21.11.2011. However, when the matter was taken up by the Hon'ble High Court on 21.12.2011, the petitioner withdrew the petition with liberty to approach this court in terms of the decision of Hon'ble Supreme Court in Amrik Singh Lyallpuri Vs.Union of India and others, 2011(4) SCALE 854. Hence the appellant has filed the present appeal. It was submitted that since the appellant had moved the Hon'ble High Court within the stipulated period, the bar of limitation would not come in the way in terms of Section 14 of the Limitation Act, 1963. However, by way of abundant precaution, application seeking condonation of delay was filed. As such, it was submitted that delay in filing the appeal, if any, be condoned.
6- The application is opposed by the learned Counsel for the respondent on the ground that in order to attract Section 14 of the Limitation Act, Appellant must have acted with due (MCD Appeal No.03/2012) (Page 4 of 16) diligence and good faith. The Division Bench of the Hon'ble High Court, vide order dated 26.10.2010 had granted six weeks' time to the appellant to seek redressal of grievances. The appeal against demolition order was decided by the Appellate Tribunal (MCD) whereby the appeal filed by the appellant was dismissed. As per the orders of Hon'ble High Court, protection for six weeks was granted which was operative from 31.10.2011 to 12.12.2011. Instead of filing the appeal before this court, the appellant invoked the writ jurisdiction of Hon'ble High Court and when the matter came up before the Hon'ble High Court, the appellant simply withdrew the writ petition without seeking any liberty to file the appeal before this forum nor any direction was given by the Hon'ble High Court that the time spent in the wrong forum would not be counted for limitation purposes. Thereafter also, the appellant filed the appeal mentioning it as RCA. Therefore, it was listed before the Addl. District & Sessions Judge and thereafter, it was transferred to this court. The appellant has not been acting with due diligence nor sufficient cause has been shown to explain as to why the appeal was not filed before the appropriate forum, as such, the application under Section 5 r/w Section 14 of the Limitation Act is liable to be dismissed.
7- Chapter XVI of the DMC Act deals with building regulations. Section 332 of the Act prohibits erection of any (MCD Appeal No.03/2012) (Page 5 of 16) building or execution of any work specified in Section 334 except with the previous sanction of the Commissioner. Section 343 of the Act empowers the Commissioner to pass appropriate orders where the erection of any building or execution of any work is commenced without or contrary to the sanction referred to in Section 336 or in contravention of any condition according to which such sanction has been accorded or in contravention of any of the provisions or bye-laws made thereunder, the commissioner may, in addition to any other action that may be taken, make an order directing that such erection or work shall be demolished by the person at whose instance the erection of work has been commenced or is being carried on or has been completed, within such period as may be, specified in order of demolition. However, before passing such a demolition order, a show cause notice is required to be served upon the person, thereby granting him a reasonable opportunity of showing cause why such order shall not be made. Any person aggrieved by an order of the Commissioner, can prefer an appeal as per Section 343(2) of the DMC Act to the Appellate Tribunal.
8- It is not in dispute that a show cause notice was duly served upon the appellant in pursuance of which he submitted the reply and detailed submission. After affording him due opportunity of hearing, the demolition order dated 13.09.2010 was passed. As stated above, the remedy available to the (MCD Appeal No.03/2012) (Page 6 of 16) appellant was to file an appeal before the Appellant Tribunal (MCD) as prescribed under Section 343(2) of the DMC Act. However, the record reveals that instead of preferring an appeal before the Appellate Tribunal (MCD), the appellant filed a writ petition before the Hon'ble High Court. Vide order dated 21.09.2010, Hon'ble Mr. Justice R.S. Endlaw, dismissed the writ petition observing that the same is not maintainable. However, liberty was given to the appellant to challenge the order of demolition before the Appellate Tribunal (MCD). Not satisfied with this order, LPA No. 763/10 was preferred by the Appellant. When the matter came up for hearing, the appellant informed the Hon'ble High Court that he had already preferred an appeal before the Appellate Tribunal (MCD) and order of Hon'ble Single Judge was modified to the extent that if the appellant meets with unsuccess before the Appellant Tribunal (MCD), the order passed by Single Judge shall not be given effect to for a further period of six weeks so that Appellant would be in a position to approach the appropriate forum for redressal of his grievances. Thereafter, the Appellate Tribunal (MCD) dismissed the appeal preferred by the appellant, vide order dated 31.10.2011. Here again, the appellant filed a writ petition challenging the impugned order. When the matter came up before the Hon'ble High Court, he withdrew the writ petition reserving his right to approach the Appellate Authority namely District Judge, against the impugned order dated 31.10.2011. The writ petition was accordingly, dismissed as (MCD Appeal No.03/2012) (Page 7 of 16) withdrawn.
9- Things do not rest here. When the appeal was preferred, it was mentioned as RCA with the result that the appeal was assigned to Shri Pankaj Gupta, Addl. District Judge. However, Shri Pankaj Gupta, Addl. District Judge sent the file observing that the appeal has been preferred against the order passed by the Appellate Tribunal (MCD) and vide letter No. 4462/DHC/ Gaz./GI/2011, dated 22.11.2011, sent by the Hon'ble High Court, the appeals against the orders of MCD Tribunal are to be heard by the District Judges only. Thereafter, the appeal was taken on the board of this court. The result of the aforesaid discussion goes to show that at every stage, the appellant has been choosing the wrong forum. When the demolition order was passed, the appeal was required to be filed before the Appellate Tribunal (MCD) as per Section 343(2) of the DMC Act, but instead of filing the appeal before the Appellate Tribunal (MCD) , as stated above, a writ petition was filed before the Hon'ble High Court and thereafter, LPA was also filed. Then only the appeal was preferred before the Appellate Tribunal (MCD). Under Section 347-D of the DMC Act, the appeal against the orders of the Appellate Tribunal (MCD), shall be preferred before the Administrator i.e. the Hon'ble Lt. Governor of Delhi. However, in Amrik Singh Lyallpuri Vs.Union of India and others, Civil Appeal No.5075 of 2005 (decided on 21-4-2011), Hon'ble Supreme Court (MCD Appeal No.03/2012) (Page 8 of 16) observed that the appeal will not lie to the Administrator since he is an Executive Authority and therefore, the appeal against the Appellate Tribunal (MCD) would lie before the Judicial Authority. In order to show his bonafide, he even did not approach the Hon'ble Lt. Governor, challenging the order, passed by the learned Appellate Tribunal (MCD). In fact, as stated above, he approached the Hon'ble High Court and invoked the writ jurisdiction. Even at that time, while withdrawing the writ petition, the appellant did not sought any direction from the Hon'ble High Court that time spent in invoking the writ jurisdiction should not be counted for the purpose of calculating the period of limitation. The result of the aforesaid discussion is that at every stage, the appellant has been choosing the wrong forum. It is settled principle of law that ignorance of law, is no excuse. Even it is not the case of the appellant that he was not aware of the legal procedure and therefore, he could not approach the appropriate forum for seeking remedies available to him under the law. In order to claim benefit of Section 14 of the Limitation Act, it was incumbent upon the appellant to show that he acted in good faith and was exercising due diligence. Both these things are missing in the instant case. Under the circumstances, the appellant has failed to assign sufficient cause for not preferring the appeal within the prescribed period. As such, since the appeal has been filed beyond prescribed period of limitation, the appeal is liable to be dismissed on this ground (MCD Appeal No.03/2012) (Page 9 of 16) only.
10- Even if it is taken that the Court should take a liberal approach and delay in filing the appeal be condoned, even then on merits also, the appellant has not good case in view of the discussion made hereinafter.
11- It was submitted by the learned Counsel for the Appellant that the repair, renovation, maintenance work that was undertaken by the Appellant in the staircase area was permitted as per the building byelaws and no permission was required for the same. There was no excess coverage in the basement, ground, first or second floor of the appellant and the work undertaken, permissible under the building bye-laws, cannot be labeled as an unauthorized construction. The builder of the said property had constructed the staircase in the existing area while constructing the property in 1991. The MCD issued `C' & `D' forms to the builder in the year 1991 despite the alleged change in the location of staircase. Therefore, to treat the staircase as unauthorized construction after a period of nearly two decades was completely arbitrary, unjust and unfair. Furthermore, the building bye-laws currently in force permit the regularization of such deviations upon payment of the prescribed free to be charges and therefore, the appellant applied for regularization as per appendix `Q'. The result of regularization was never communicated to the (MCD Appeal No.03/2012) (Page 10 of 16) appellant. Moreover, mere endorsement on the plan does not mean that if subsequent bye-laws permit addition or alteration that same cannot be allowed. Since the appellant was never communicated about the rejection order, there was no occasion for him to file appeal against said order. He also referred to the house tax record for submitting that third floor was already in existence inasmuch as if there was an unathorized construction, then why house tax was levied. He also referred to the letters written by the respectables of the locality that there does not exist any unauthorized constructions. Reference was also made to the written submissions filed before the Appellate Authority (MCD), where reference was made to the decision dated 12.11.2010 taken by the Technical Committee. Relying upon this submission, it was submitted that if the decision was taken by Technical Committee only on 12.11.2010, then how could the demolition order be passed prior to that and the application for regularization was rejected. As such, it was submitted that the impugned order suffers from infirmities and the same be set- aside.
12- Rebutting the submission of the learned Counsel for the Appellant, it was submitted by the learned Counsel for the Respondent that the order of the Appellate Authority (MCD) is valid, legal and justified. She contended that quasi-judicial authority has passed the order after checking the records of (MCD Appeal No.03/2012) (Page 11 of 16) Building (HQ) and upon finding that the sanction building plan contained an endorsement that "the building shall have to be constructed and maintained strictly in accordance with standard drawing approved by the MCD and deviations will neither be allowed nor regularized". The appellant failed to produce the relevant documents before the Appellate Authority (MCD). He had been filing applications under Right to Information Act, but at no point of time, the appellant demanded the duplicate of the sanction plan and therefore, an adverse inference can be drawn that the appellant intentionally withheld the second part of the sanction plan and did not provide the same before the quasi-judicial authority, knowingly that it contained specific endorsement. The rejection letter dated 26.10.2011 was communicated to the person who had moved the application. There is nothing on record to show that any effort was made by the appellant to find out the outcome of the regularization application. The appellant cannot get any benefit from the report of the Technical Committee meeting held on 12.11.2010 inasmuch as the Committee was not dealing with the case of the appellant specifically. The Technical Committee meeting was held on certain agendas such as, clarifications of development control norms of shops-cum-residential plots designated as LAC in MPD-2001-2021 and revision of layout plan of public and semi-public area, Sector-3, Rohini, Delhi etc. Under the circumstances, it was submitted that the impugned order does (MCD Appeal No.03/2012) (Page 12 of 16) not suffer from any infirmity and as such, the appeal is liable to be dismissed.
13- I have given my thoughtful considerations to the respective submissions of the learned Counsel for the parties and have perused the record.
14- A perusal of the order passed by Appellate Authority (MCD) goes to show that it has dealt with each and every aspect of matter while passing the impugned order. The demolition order in question was passed on the ground that the construction raised is not in accordance with the sanction building plan and that unauthorised construction cannot be regularized. Appellant had changed the position of the staircase and shape of toilet and steps. The encroachment on public land in the share of steps on front side was also found besides complete unauthorized construction at 3rd floor in the shape of room, toilet and kitchen.
15- It is the case of the appellant that it only carried out renovation in the property and no new construction was carried out. However, neither before the Appellate Authority (MCD) nor before this forum, the appellant has produced the original sanction plan which was given to the previous owner of the property. It was observed by the Appellate Authority (MCD) that in reply to the show-cause notice dated 09.07.2010, the (MCD Appeal No.03/2012) (Page 13 of 16) appellant referred to sanction plan and produced only one part and stated that another part shall be submitted later on when it was traced or got a copy from the MCD. However, it was never produced by submitting that the same was not available. Nothing was placed on record to show that the appellant made any effort to get the second part of the sanction plan from MCD although he had been moving RTI applications addressed to the MCD. Further more, according to the appellant, when the construction was completed in the year, 1991, MCD had issued completion certificate and forms `C' & `D'. Even the completion certificate or form `C' & `D' were not produced before the Appellate Authority (MCD) or before this court, which would have shown that the construction as on date in the property in question is the same which was in existence when the completion certificate was issued. As such, for non-production of the second part of the plan, or the completion certificate and form `C' &`D' , an adverse inference was rightly down by the Appellate Authority (MCD).
16- As regards the submission of the learned Counsel for the Appellant that the construction on third floor was noted in the year, 1990 and accordingly house-tax was levied by MCD, that ipso facto does not give right to presumption that construction was authorised because mere payment of house tax is not sufficient to come to the conclusion that construction was authorised or that the MCD has condoned or regularize the (MCD Appeal No.03/2012) (Page 14 of 16) same. Purpose of levying house tax is entirely different.
17- It was submitted that Shri Ramesh Madan, co-owner of the property has compromised with the appellant and civil suit has been withdrawn. This fact, simplicitor was rightly not considered to be a ground to set-aside the demolition order because the court was required to see the legality and validity of the demolition order and not the source from which proceedings eminated. It may be that till the time Shri Ramesh Madan filed a civil suit, alleging the activities undertaken in the property by the appellant as unauthorised, the unauthorized construction inside the premises went un-noticed by the MCD Officials. It was only thereafter that the MCD Officials swung into action and the demolition order was passed. But the mere fact that the co-owner of the property has now compromised with the appellant, does not make an unauthorized construction authorised.
18- The appellant has not challenged the legality or validity of show-cause notice or the demolition order on the ground of vagueness or the procedure adopted by quasi judicial authority. In fact, there was no violation of principle of natural justice inasmuch as a show-cause notice as contemplated under Section 343 of the DMC Act was served upon the appellant to which he submitted a reply and detailed submissions. It was only thereafter that the demolition order was passed. In order (MCD Appeal No.03/2012) (Page 15 of 16) to substantiate the averments made in the additional submission, the appellant had ample opportunity to prove that the alleged unauthorized construction mentioned in the show- cause notice is not unauthorized or that the appellant was merely carrying out repairs or renovation but he failed to do so with the result that the demolition order was passed. Even before the Appellate Authority (MCD) the appellant failed to produce any document to show that the existing construction is in accordance with sanction plan. So far as regularization is concerned, same was rejected and no appeal was preferred against the rejection order. Therefore, that aspect of the matter cannot be considered in the present appeal. In fact, a perusal of the impugned order goes to show that the learned Presiding Officer, Appellate Authority (MCD) has considered each and every aspect of the matter and has passed a detailed speaking order which does not suffer from infirmity or perversity. There is no merit in the appeal. The same is hereby dismissed.
A copy of the order be sent to the Appellate Tribunal, MCD alongwith the records. Appeal file be consigned to record room.
Announced in open Court
on 13.03.2012 (SUNITA GUPTA )
DISTRICT & SESSIONS JUDGE
DELHI
(MCD Appeal No.03/2012) (Page 16 of 16)