IN THE COURT OF MS. POONAM CHAUDHARY : ADDL DISTRICT...

Appeal no. 475/18 M/s Tarun Buildwell Pvt. Ltd. Vs North DMC Page 1

IN THE COURT OF MS. POONAM CHAUDHARY : ADDL DISTRICT & SESSIONS JUDGE-CUM PRESIDING OFFICER, APPELLATE TRIBUNAL, M.C.D, DELHI. APPEAL NO. 475/2018 M/S TARUN BUILDWELL PVT. LTD, (A COMPANY INCORPORATED UNDER THE COMPANIES ACT) 2900, BAZAR SIRKI WALAN, LAL KUAN, DELHI-110006. THROUGH ITS AUTHORISED SIGNATORY, SHRI RADHA KRISHAN GOYAL. .......APPELLANT VS NORTH DELHI MUNICIPAL CORPORATION, THROUGH ITS COMMISSIONER, S.P. MUKHERJEE CIVIC CENTRE, JAWAHAR LAL NEHRU MARG, MINTO ROAD, NEW DELHI. .......RESPONDENT DATE OF FILING APPEAL : 16.07.2018 DATE OF ORDER : 17.12.2019

ORDER

1. By way of the present appeal under section 347 B read with Section

345 A of the Delhi Municipal Corporation Act, 1957 hereinafter referred

to as „the DMC Act‟, appellant has assailed the order of sealing bearing

No. 02/SO/80/2017 dated 11.10.2017 passed by Shri Kapil Rastogi,

Deputy Commissioner, City Sadar Pahar Ganj Zone, Delhi, in respect of

property No. 2900, Sikri Walan, Lal Kuan, Delhi (hereinafter referred to

as the property in question).


2. It is alleged that the appellant is a Company incorporated under the

Companies Act. the Board of Directors have authorized Shri Radha

Krishan Goyal to sign, verify, file and institute the present appeal.

3. It is further alleged that the appellant is the owner of the built-up

property in question admeasuring 592.86 Sq.Mtrs., having purchased

the same vide Sale Deeds dated 07.10.2013 and 11.10.2013

respectively. It is also stated that the property in question is assessed to

property tax, it was constructed prior to 08.02.2007. It is further stated

that as the property in question was in dilapidated condition and it

required immediate repairs, as envisaged under 2.14 of Building Bye-

Laws, 2016 ( 6.4.1 of Unified Building Bye Laws of 1983) prevalent at

the relevant time, although no permission was required for carrying out

repairs, but, in order to avoid any objections, the appellant obtained the

permission for repair from the Corporation and the same was granted

by the Corporation vide letter dated 29.09.2016. The appellant

thereafter carried out permissible repairs.

4. It is further alleged that the Master Plan 2021 came into force w.e.f.

07.02.2007 and as the property in question is situated in Special area

as such in view of the regulations 16 of MPD 2021, the regulations

framed by the Government of India and notified on 17.01.2011, as per

the Notification dated 17.01.2011, 100% ground coverage is permitted


and the setbacks are not to be insisted upon in a property as property is

situated in Special Areas.

5. It is further alleged that as in view of the Notification dated 17.01.2011,

100% ground coverage and FAR permitted under Regulation 4.4.3 are

applicable to the premises situated in Villages, unauthorized regularized

Colonies and Special Areas.

6. It is also alleged that Chapter XV of MPD 2021 pertains to Mixed-use

and allowing non-residential activities in residential premises

(Regulations 4.4.3. of MPD 2021). It is also averred the property in

question is situated on a Notified Commercial Road as is evident from

Notification dated 15.09.2006 (Annexure D-City Zone, Sl. No. 13) as

such, non-residential activities are permissible on the ground floor and

first floor of the property in question.

7. It is also stated that the property in question is situated in a Special

Area, where the parking is not possible, as such, the legislature in its

wisdom while notifying regulations for Special Area dated 17.01.2011

had specifically provided in clause 3 (ix) as to the applicability of various

paras of Chapter XV of Master Plan 2021 to the same. The Legislature

had intentionally deleted the applicability of provisions 15.4 in the

Special Area.


8. It is also alleged that the appellant applied for regularization on

18.09.2017 along with requisite plans and documents. It is also stated

that as the property is situated in a colony categorized as “E” for the

purposes of house-tax. The appellant is ready and willing to pay the

charges for parking as Notified by Government of India from time to

time in respect of the property in question.

9. It is further alleged that the Corporation issued Show Cause Notice

under Section 343 (1) of the Act dated 29.09.2017 and thereafter issued

Show Cause Notice under Section 345-A of the DMC Act to which reply

was filed. It is further alleged that the property in question was sealed

arbitrarily on 12.10.2017. Appellant moved an application for de-sealing

before the Corporation pursuant to which it was de-sealed temporarily

for 15 days. The appellant during the said period had carried out the

requisite rectifications, the property was thereafter re-sealed.

10. It is further alleged that the respondent passed speaking order under

Section 343 (1) of the DMC Act dated 18.12.2017 thereby giving

protection in respect of the ground floor and first floor of the property in

question from any coercive action in view of the in National Capital

Territory of Delhi (Special Provisions) Second Amendment Act 2011 as

amended from time to time and extended till 31.12.2020.


11. It is further averred that the respondent had taken demolition action in

the property in question on 19.03.2018 and 20.03.2018 whereby the

unauthorized construction on the second floor was removed. It is further

alleged that as construction on the ground floor and first floor is under

Statutory protection in view of the order of Competent Authority dated

18.12.2017, as such, appellant applied for permanent de-sealing of the

property in question. It is also alleged that sealing is an interim

arrangement for the purposes of carrying out the provisions of the Act

i.e. demolition. It is also stated that as no coercive action demolition

could be taken in view of the speaking order dated 18.12.2017 till

31.12.2020 the appellant could not be deprived from using his property.

12. It is further stated that the appellant could not file the appeal within the

stipulated period of 30 days from the date of the impugned order i.e.

11.10.2017, as the appellant has approached the department for de-

sealing of the property in question and official of respondent, had

assured him of favourable order. It is alleged that well settled of law

that technicalities should not come in the way of imparting justice. It is

stated that there are cogent and sufficient reasons for not filing the

appeal within the stipulated period from the impugned order dated

11.10.2017. The delay is neither intentional nor deliberate but due to

above facts and circumstances.


13. Notice of the appeal was issued to the respondent who filed reply and

record.

14. As regards the question of limitation, the submissions made in the

application u/s. 5 of the Limitation Act read with section 347B and

343(2) of the DMC Act are that the delay occurred as appellant was

pursuing his application for de-sealing against the impugned order with

the Corporation and was assured of favourable order by the officials of

respondent / MCD. It is also stated that delay in filing of appeal is

unintentional.

15. In view of the submissions made in the application, which is supported

by affidavit of appellant, in my view the appellant has shown sufficient

cause for condonation of delay. It is to be noted that the words

“sufficient cause” in Section 5 of the Limitation Act have to be given

liberal construction to advance the cause of substantial justice as held

by Hon‟ble Supreme Court in State of West Bengal Vs. Administration

Howrah Municipally, AIR 1972 SC 749. The application for condonation

of delay is accordingly allowed.

16. The impugned order has been assailed on the ground that it is arbitrary,

against the mandatory provisions of the Act and principles of natural

justice. It is further stated that the appellant was not afforded a


reasonable opportunity of hearing. It is also alleged that the impugned

order is vague, as it lacks in material particulars, and is void in toto, in

support of said submission reliance has been placed on a decision of

Hon‟ble High Court of Delhi in case titled Masanic Ceno V/s MCD of

Another 2000(55) DRJ. It is stated that the property in question is in

existence much prior to 08.02.2007 and entitled to the protection under

the National Capital Territory of Delhi Laws (Special Provisions) Second

Amendment Act 2011 as amended from time to time and extended till

31.12.2020. It is further alleged that the Competent Authority had

granted protection to the ground floor and first floor of the property in

question vide order dated 18.12.2017 passed under section 343 (1) of

the Act. Thus no coercive action could be taken till the statutory

protection is in force. It is also alleged that the construction is within

compoundable and regularisable limits as provided under MPD 2021

read with notification dated 17.01.2011.

17. The appeal has been opposed by the respondent. The submissions

made in the reply to the application for early hearing are that protection

under the provisions of the Delhi Laws Special Protection (2nd

Amendment) Act, 2017 to construction on the ground and first floor of

the property in question had been wrongly accorded, against which it

had been administratively decided to file an appeal, so as to get it

quashed/set-aside. It is further stated that no benefit can be extended


to the appeal property on the basis of order dated 18.12.2017. It is also

stated that the discretion given in the impugned sealing order is a mere

typographical error, the allegation against appellant are of unauthorized

construction, actionable under section 345-A of the DMC Act, 1957 (as

amended up to date). It is denied that no Show Cause Notice was

served by way of pasting. It is alleged that photographs thereof had

been taken in terms of the circulars/directions issued by respondent. It

is denied that the regularization application was dismissed due to non-

availability of parking space in plot, as per the provisions of Master

Plan- 2021. It is further stated that rectification plan was submitted by

appellant on 09.09.2019. As per policy rectification plan cannot be

approved by the department, only regularization plan can be

considered. Thus the appellant had to first rectify the non

compoundable deviations in consultation with the approved Architect

and thereafter submit the regularization plan. It is also stated that

appellant has to get the unauthorised construction regularised.

18. On the other hand, it is submitted by Ld. Counsel for appellant that

impugned order dated 11.10.2017 has been passed in a mechanical

manner, as the description of the property mentioned therein is “Stilt

floor, GF, FF, SF and TF with projection on MPL Land whereas the

property in question at the time of passing the impugned order

comprised only of GF, FF, and SF, there was no stilt floor and third floor


in the same. It is also started that the show cause notice dated

03.10.2017 under section 345-A dated 03.10.2017 also does not

mention regarding the construction at stilt floor and third floor. The

same, it states as under:-

“Unauthorised construction of ground floor, first floor and second floor”

19. It is further submitted by Ld. Counsel for appellant that the respondent

in reply to the application moved by the appellant for early hearing had

admitted that the discrepancy in description of the appeal property in

the impugned sealing order stating that it was due to a typographical

error. It is also contended that the said discrepancy cannot to be said to

be a typographical error but is arbitrary and shows that casual approach

of the respondent. Ld. Counsel for appellant in support of his

submission that entire impugned order is bad in law, has placed

reliance on a decision of Hon‟ble High Court in case titled as

“P.D.Gupta Vs. MCD”, 1974 RLR, it has been held that if part of the

order is on wrong premise, the entire order is bad in law. The relevant

extract of the judgement is as under:-

“DMC Act 1957 Section 343(1) of demolition notice contains of

directions, one which is intra vires and the other ultra vires, the whole

notice is bad.“


20. It is further contended by Ld. counsel for appellant that the property

was booked for unauthorized construction vide FIR and show cause

notice, u/s 343 of the DMC Act, dated 29.09.2017 was issued.

Thereafter, show cause notice u/s 345-A dated 03.10.2017 was issued.

It is also stated thereafter that impugned sealing order dated

11.10.2017 was passed and the property was sealed on 12.10.2017.

The sealing order was passed prior to passing of demolition order dated

18.12.2017. It is contended that it is an admitted case of the respondent

that the speaking order u/s 343 of the DMC Act dated 18.12.2017 was

passed subsequent to the sealing order. It is also contended that in the

demolition order dated 18.12.2017 the ground floor and first floor of the

appeal property was held to be protected under the Special Protection

Act and the second floor was ordered to be demolished. It is also

argued that the respondent had even acted upon the said speaking

order dated 18.12.2017, by demolishing the entire second floor of the

property in question on 19.03.2018 and 20.03.2018. It is also alleged

that the order dated 18.12.2017 was passed on the basis of house tax

record, of the year 2002 showing the existence of ground floor and first

floor. The record was duly verified by the Deputy Assessor and

Collector, City S.P.Zone, vide his report dated 15.12.2017, as

mentioned in the order dated 18.12.2017. It is also contended the

proceedings initiated by the respondent u/s 343 of the DMC Act were

thus concluded by passing the speaking order dated 18.12.2017 and


thereafter, demolition action was taken on 19.03.2018 and 20.03.2018

on the second floor of property in question. It is further submitted that

the respondent sealed the property in question on the false premise that

the speaking order under Section 343 & 344 of the Act dated

18.12.2017 is incorrect eventhough till date the said order has been

neither set-aside nor modified by the respondent, It is also submitted

that the respondent is estopped from contending that the speaking

order dated 18.12.2017 is incorrect as the same has also been acted

upon by the respondent.

21. It is also contended by Ld. counsel for appellant that the respondent vide

its letter dated 29.09.2016 had allowed the appellant to carry out

permissible repairs. The said letter also mentions the existence of

ground floor, first floor and second floor in the property in question, as

such, it does not lie in the mouth of the respondent to contend that the

appellant was carrying out unauthorized construction on the date of its

booking i.e. 29.09.2017, in the form of ground floor, first floor, and

second floor.

22. It is also alleged by Ld. Counsel for appellant that an order u/s. 345-A

can be passed only when an order u/s. 343 of the Act exists. In this

regard reliance has been placed on a decision of the Hon‟ble High

Court of Delhi, in the case titled as “M/s Ahuja Property Developers Pvt.


Ltd Vs. MCD”, wherein it has been held that the power to seal the

property is a temporary measure subject to final decision u/s 343 of the

DMC Act. Reliance was also placed on the full bench decision of

Hon‟ble High Court in case titled “Bajaj Departmental Store, D.

Bhowmick and Others, Ms. Devendere Kaur & Ors. and D.S. Marketing

Pvt. Ltd. Vs. MCD & Ors.” wherein it was held that an order u/s 345A of

the DMC Act can be taken recourse to only, when there exist a

demolition order. The same cannot be taken recourse to in any other

contingency.

23. During the pendency of the appeal, an application moved by applicant

under Order 1 Rule 10 CPC was dismissed vide order dated 11.12.2018

on the ground that the applicant failed to show any ground to be

impleaded as a necessary party to the present appeal. As regards the

prayer of applicant in the said application to direct respondent / MCD to

file the entire record and documents. The respondent/MCD was

directed to place on record the entire record of sealing proceedings,

demolition proceedings as well as regularization proceedings and

record of Monitoring Committee. Another prayer made by applicant for

staying of proceedings was also declined.

24. The applicant thereafter moved an application for directing the

respondent / MCD for compliance of order dated 11.12.2018. It was


stated that the counsel for the respondent No. I had falsely stated that

the entire record has been filed as directed vide said order. It was also

alleged that documents mentioned in para 3 of the application had not

been placed on record.

25. It was further alleged that applicant be allowed to file documents and

depose as a witness. The applicant has placed on record an order of

the Hon‟ble High Court dated 27.11.2019 passed in Writ .petition No.

12498/19 titled Kusum Sehgal Vs. North DMC, alongwith the said

application, whereby applicant was given liberty to move an appropriate

application before this Tribunal and directed that in case the said

application is filed before this tribunal, it be dealt with as per law.

26. Reply has been filed by appellant to the application opposing the

application stating that the applicant has no locus standi to fie

application and it has been filed only to harass the appellant. It is also

stated that all the documents mentioned in the application are already

on record.

27. Ld. Counsel for the appellant alleged that the prayer of applicant to be

examined; witness is misconceived as the Tribunal cannot has no

jurisdiction to allow a third party to appear as a witness. In fact

applicant has no right to participate in the proceedings. It is further


alleged in the present case appellant has not claimed any relief against

the applicant.

28. Ld. counsel for respondent / MCD did not file reply to the said

application but submitted that the entire record of sealing, demolition,

regularization and Monitoring Committee had been filed.

29. Another application has been moved by applicant for direction to the

concerned official / Monitoring Committee through respondent / MCD to

place on record the CD submitted by applicant to respondent / MCD

before final disposal of the appeal. The averments made in the

application are that applicant had made recordings regarding

unauthorized construction raised by appellant and CD was handed over

to respondent.

30. The CD on the record of respondent was played pursuant to the prayer

made in the application, the CD was played in the presence of

applicant, and parties and their counsels but it did not contain any

recording.

31. I have perused the order of Hon‟ble High Court dated 27.11.2019. The

relevant extract is as under :


”Noting the submissions made by the petitioner,

liberty is granted to the petitioner to move an

appropriate application before the ATMCD with the

request to be allowed to appear as a witness. In

case such an application is filed ATMCD may deal

with the same as per law uninfluenced by any

observations made by this Court.”

32. I have considered the submissions made by Ld. counsel for parties on

the said application.

33. The provisions of section 347 C provide the procedure to be followed by

Appellate Tribunal.

34. Rule 14 of the Appellate Tribunal Procedure Rules relates to production

of additional evidence before the Tribunal. Rule 17 relates to orders and

directions in certain cases.

35. As regards the prayer of applicant, it is to be noted that it has been held

by Hon‟ble High court of Delhi in 45 1991 DLT 616 Hardayal Singh

Mehta V/s MCD the power under rule 14(4) of the Appellate Tribunal

Procedure Rules can be exercised only in exceptional cases where


Tribunal is satisfied that the production of documents or examination of

witness is necessary to enable the Tribunal to decide the appeal.

36. It is to be noted the present appeal is preferred by appellant against the

order of sealing passed by quasi juridical authority. Therefore, the

Corporation and Commissioner would be respondents / necessary

parties to the appeal. The applicant has failed to show that she has any

interest in the subject matter of appeal. It is also to be noted the

applicant may have furnished information or material to the Corporation

against the appellant‟s property for initiating action of demolition /

sealing against, it but as applicant does not have any interest in the

subject matter of appeal, thus in my view the examination of applicant

as a witness is not required for effective adjudication of the appeal.

37. Moreover, Ld. counsel for respondent / MCD had submitted that the

entire material / information furnished by applicant as well as the record

of sealing, demolition, regularization and Monitoring Committee had

been placed on record before this Tribunal.

38. Thus in my view, as applicant has no interest in the impugned order

passed by the quasi judicial authority, as such she cannot claim any

interest in the decision of the appeal. The Tribunal has no power to


decide any dispute between applicant and appellant. Thus the

applications moved by applicant are dismissed.

39. As regards the merits of the appeal, it is to be noted that vide order

dated 18.12.2017 the Competent Authority had granted statutory

protection to ground and first floor of the property in question. It is also

to be noted that show cause notice u/s. 345-A was given regarding

unauthorized construction of ground floor, first floor and second floor but

impugned sealing order has been passed regarding “stilt floor, ground

floor, second floor and third floor and projections on the municipal land”.

The said discrepancy was not explained by the respondent, the

submission that it was a typographical error is without any substance. I

also do not find any merits in the contentions of Ld. counsel for

respondent / MCD that protection to the ground floor and first floor of

the appellant‟s property has been wrongly accorded. It is to be noted

that the order dated 18.12.2017 has not been set aside till date or got

quashed.

40. The prayer made in the appeal is for de-sealing of ground floor and first

floor of the property in question in view of the order dated 18.12.2017.

Thus, in view of the statutory protection granted to ground floor and first

floor of the property in question of the NCT of Delhi Laws Special

Provisions Act 2011 as extended till 31.12.2020 by the Competent


Authority, the respondent is directed to de-seal the ground floor and first

floor, as it is protected from coercive action till 31.12.2020.

41. In the abovesaid facts and circumstances, I accordingly directed

respondent / MCD to de-seal the ground floor and first floor of the

property in question bearing no. 2900, Sikri Walan, Lal Kuan, Delhi

within two weeks of the date of this order. Appellant is directed not to

misuse it or raise unauthorized construction therein. The respondent

will be at liberty to take demolition / sealing action in accordance with

law, in case the protection granted by Government / Parliament is

withdrawn during the period 31.12.2020 or is not extended after

31.12.2020. The respondent will also be at liberty to take action in case

the status quo regarding construction is violated or the property is put to

misuse.

42. Appeal stands disposed off.

43. The file of the department, if any, be returned to the respondent

alongwith copy of this order. File be consigned to record room.

(POONAM CHAUDHARY) AD&SJ-cum-P.O.

Appellate Tribunal : MCD 17.12.2019.

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