in the court of ms. poonam chaudhary : addl district &...

Appeal no. 327/19 & 385/19 MANOJ ARORA SHERAZ AHMED VS NORTH DMC

IN THE COURT OF MS. POONAM CHAUDHARY : ADDL DISTRICT & SESSIONS JUDGE-CUM PRESIDING OFFICER, APPELLATE TRIBUNAL, M.C.D, DELHI. APPEAL NO:327/2019

SHRI MANOJ ARORA,

S/O LT. SH. HARBANS LAL ARORA,

R/O 2216-2222, GALI INDER CHAMAR,

TELIWARA, DELHI-110006.

(THROUGH S.P.A.)

SHERAZ AHMED

S/O MR. SHAHZAD AHMED,

R/O 8975, NAYA MOHALLA,

PULBANGASH, AZAD MARKET,

DELHI-110006. APPELLANT

VS

NORTH DELHI MUNICIPAL CORPORATION,

THROUGH ITS COMMISSIONER,

MCD HEADQUARTERS,

CIVIC CENTRE,

NEW DELHI-110002. RESPONDENT

DATE OF FILING APPEAL : 20.05.2019

DATE OF ORDER : 07.01.2020

APPEAL NO. 385/2019 SH. MANOJ ARORA

S/O LT. SH. HARBANS LAL ARORA,

R/O 2216-2222, GALI INDER CHAMAR,

TELIWARA, DELHI-110006.

(THROUGH S.P.A.)

SHERAZ AHMED

S/O MR. SHAHZAD AHMED,

R/O 8975, NAYA MOHALLA,

PULBANGASH AZAD MARKET,

DELHI-110006. APPELLANT


VS

NORTH DELHI MUNICIPAL CORPORATION,

THROUGH ITS COMMISSIONER,

MCD HEADQUARTERS,

CIVIC CENTRE,

NEW DELHI-110002. RESPONDENT

DATE OF FILING APPEAL : 28.06.2019

DATE OF ORDER : 07.01.2020

ORDER

1. Vide this common order I proceed to dispose off appeal No. 327/19 filed

against order of sealing dated 21.05.2019 passed by the Deputy

Commissioner City Sadar Paharganj Zone Shri A.Gopi Krishna and

appeal No.385/19 against order of demolition dated 25.06.2019 passed

by AE(B) Shri A.K. Jain.

2. Briefly stated the facts of the case giving rise to the appeals are that the

appellant is one of the co-owners of the property bearing no. 2216-

2222, Gali Inder Chamar, Teliwara, Delhi, herein referred to as the

property in question. The appellant has filed the appeal through his

attorney. It is also alleged the property in question was initially owned

by Custodian and was sold in auction on 23.10.1955, sale certificate

was issued by Rehabilitation Department on 07.04.1962. It is also

alleged the property was then purchased by ancestor of appellant.

3. It is further alleged that the property in question is in existence since

several decades and on 27-03-1997 notice u/s 126 of DMC Act was

issued to owner for assessment in respect of addition made on second


and third floor. The existing structure is shown in order of assessment

dated 05.08.1997 by the House Tax Department. It is further alleged on

15.06.2013 Assistant Engineer passed an office noting/order stating

therein of receipt of complaint in respect of property in question being in

dangerous condition, the AE directed the owners to carry out necessary

repairs. Thereafter necessary steps were taken for repair as directed

vide said letter.

4. It is further alleged that as building was old it required repairs and after

consultation with their architect, the appellant carried out necessary

repairs. It is also stated that the appellant has not raised any

unauthorized construction, neither did he change its structure or the

height of the building. Only repair permissible under the Unified

building bye-laws old and new were carried out. It is also alleged that

the appellant was shocked to see when the officials of respondent came

to the property in question to take action of sealing and demolition on

the allegations that unauthorized construction had been raised. It is

alleged that construction in the property in question has been raised

much prior to the year 2006.

5. It is also stated that impugned order of demolition is vague as it does

not disclose part of building is unauthorized area of the same. It is also

submitted that the initial burden to prove that construction is

unauthorised is on the respondent.

6. It is further alleged that the impugned orders are based on conjectures

and surmises as Competent authority did not consider the documents

filed by the appellant nor afforded an opportunity of hearing to him. It is

further stated the order is not based on the facts and circumstances of

the case, inasmuch as the same has been passed by the respondent in


a mechanical manner without going through the record available with

the respondent’s House Tax Department and other Departments.

7. It is also alleged that it is settled law that the orders which are subject

to the judicial review must be in compliance with the principles of natural

justice i.e. (a) proper hearing, (b) decision by an unbiased mind, (c)

taking into consideration all the relevant factor and excluding the

irrelevant factors and (d) reasons to be recorded.

8. It is also submitted that it is a settled proposition of law and has been

held by Hon’ble Supreme Court of India “Siemens Engineering Vs UOI”

1976 SCL Supp 489 that the Administrative Authorities should accord

fair, proper and reasonable hearing to be persons sought to be effected

by their orders and should give sufficiently clear and explicit reasons in

support of orders given by them. The rule requiring reasons to be given

in support of an order is like the principle of “Audi Partem” which is a

basic principle of natural justice and this rule must be observed in

proper spirit and mere pretence of compliance with it would not satisfy

the requirement of law.

9. It is further alleged the impugned orders are bad in law and liable to be

set-aside, inasmuch as the property in question is protected from the

punitive action as it has been in existence much prior to year 2006, thus

in view of the National Capital Territory of Delhi Laws (Special

Provisions) Act, 2011, respondent cannot take any punitive action till

31.12.2020.

10. It is also alleged that the Competent Authority also completely failed to

consider that respondent did not serve show cause notices and order of

demolition and sealing upon the appellant.


11. It is also stated that the Competent Authority did not consider the record

including Notice u/s 126 of DMC Act issued to the erstwhile owner

dated 28.03.1997 showing existence of construction on Ground Floor,

First Floor, Second Floor and Third Floor and the Assessment Order

dated 05.08.1997 showing the addition of second and third floor.

12. It is also alleged that as the respondent did not afford full opportunity to

the appellant to produce documents in support of his contentions, the

impugned order is thus a nullity, as it is in violation principles of natural

justice.

13. It is further alleged that FIR dated 29.04.2019 shows that no labour was

found present at the site, thus it is not a case of ongoing construction. It

is also stated that the property in question bears no. 2216-2222 but the

impugned order has been passed only in respect of premises no.2222.

It is also contended that order of demolition is not in the name of

appellant but in the name of his attorney.

14. It is also contended that appellant had filed Writ Petition no. 5082/19

against the demolition / sealing proceedings as he was not served with

the show cause notices and orders of demolition or sealing. In the said

Writ Petition the show case notices of demolition and sealing were

supplied to appellant and the Hon’ble High Court had directed the

appellant to file reply within 3 days with the AE(B). The appellant had

accordingly filed reply through his attorney. The Competent Authority

however, failed to comply with the directions passed by Hon’ble High

Court in the above Writ Petition vide order dated 13.05.2019 as

appellant was not afforded an opportunity of hearing. The respondent

also failed to consider the reply of appellant.


15. Notice of the appeal was issued to the respondent who filed status

report and record.

16. I have heard the Ld. Counsel for appellant Shri Dalip Rastogi and Ld.

Counsel for respondent Sh. Dharamvir Gupta and perused the record.

17. Ld. Counsel for appellant contended that as the impugned orders have

been passed in violation of the statutory provisions of DMC Act and

principles of natural justice as such they are liable to be set aside.

18. On the other hand the Ld Counsel for respondent submitted that

statutory provisions have been complied with. It was also stated that as

the appellant failed to show that the construction is authorized and as

per the sanctioned plan the same is liable to be demolished. It is further

stated property was sealed as the conditions mentioned u/s 343 and

344 DMC Act exist. It is also alleged that as appellant was represented

by his attorney before the Corporation the order was issued in his

name.

19. It is to be noted that the impugned orders have been passed by the

quasi-judicial authority. It is a settled law that quasi-judicial authority is

bound to conduct the proceedings in accordance with the principles of

natural justice. The cardinal principal of natural justice is that no one

can be condemned without notice and an opportunity of being heard.

This is not a mere formality but mandatory before passing any order.

The quasi-judicial authority was thus bound to conduct its proceedings

in accordance with the principal of natural justice. Justice should not

only to be done but the same should also appear to have been done. In

this regard it has been held by Hon’ble High Court in J.T.India Experts

Vs UOI and Another 94 (20010 DLT 301 FB as under:-


1.“These Principles are well settled. The first and foremost

principle is what is commonly known as audi-alteram partem

rule. It says that none should be condemned unheard. Notice is

the first limb of this principle. It must be précised and un-

ambiguous. It should apprise the party determinately the case

he has to meet. Time given for the purpose should be adequate

so as to enable him to make his representation. In the absence

of a notice of the kind and such reasonable opportunity, the

order passed against the person absentia becomes wholly

vitiated. Thus, it is but essential that a party should be put on

notice of the case before any adverse order is passed against

him. This is one of the most important principles of natural

justice. It is after all an approved rule of fair play.

.Principles of natural justice are those rules which have been

laid down by the courts as being the minimum protection of the

rights of the individual against the arbitrary procedure that may

be adopted by a judicial, quasi-judicial authority while making an

order affecting these rights.

These rules are intended to prevent such authority from doing

injustice.”

20. It is also to be noted section 343 of the DMC Act provides the procedure

for taking any action of demolition in case of unauthorized construction.

It provides where erection of any building or execution of any work has

been commenced or is being carried on or has been completed in

contravention of any condition subject to which sanction has been

accorded or any contravention of any provisions of the act or bye laws,

then the Commissioner makes an order directing that such erection or


work has been commenced or is being carried on or has been

complied.

21. Proviso to Clause-1 of Section 343 (1) of DMC Act specifically provides

that no order of demolition shall be made unless the person concerned

has been given notice of showing cause why such order shall not be

made. The service of show cause notice on the persons concerned is

thus mandatory. In this regard it has been held in Mahender Singh and

Others Vs MCD 34 (1988) DLT 118 by the Hon’ble High Court as

under:-

“The services of show cause notice on the person concerned

before passing the demolition order is mandatory. There is no

question of any prejudice being caused or not being caused that

a mandatory provisions has not been complied with. As it has

not been done, it must be held that the whole proceedings

regarding passing of the demolition order are illegal and on this

ground along the impugned demolition order and the appellate

order are liable to be set aside.”

22. The Ld. Counsel for appellant submitted that show cause notice was

not served to all the owners. In this regard reliance has been placed on

AIR 1971 RLR (Note) 38 Madhusudan Vs Municipal Corporation

wherein it has been held:-

“The provision of giving notice to occupier or lessee does not

detract the importance of giving notice to all the owners”.


23. I find force in the said submission of Ld. Counsel for appellant that

demolition of a property has serious consequences as such the notice

has to be served on the person concerned. It is pertinent to notice that

legislature in its wisdom provided that notice of demolition must be

served on that person i.e. the person concerned so as to afford him an

opportunity of hearing before an adverse order affecting his rights is

passed. In this regard it has been held by Hon’ble High Court in Umrao

Singh Vs. MCD 1966 DLT 471 that demolition of a building or part of it

is a serious matter and entails great deal of loss to the person who

raised construction. The legislative therefore provided that notice of

demolition must be delivered to the concerned person and not merely

served in the manner other notices are served u/s. 444 of the Act.

24. The submissions of Ld. counsel for appellants is that notices were not

duly served; the track report of notice u/s. 345A sent by speed post

has not been filed.

25. In the instant case, show cause notice u/s. 344, 343 was issued to

Mustafa and sent by speed post. As per the report as the owner /

builder refused to accept the same, it was pasted. The report of

pasting has not been filed. Thus, it has not been brought on record as

to who was present at the site and who refused to accept notice. It is

to be noted that no genuine efforts were made to serve the show

cause notices. It is also to be noted no track report of service of show

cause notice u/s. 345A has been filed. There is no report of pasting of

show cause notice u/s. 345A, only photographs have been filed. I also

find force in the contention of counsel for appellant that in the

impugned sealing order it is stated that no reply has been filed,

whereas appellant had filed reply and given it to the AE as directed by


Hon’ble High Court in the Writ Petition against demolition and sealing

proceedings. Thus in my view the impugned sealing order was

passed without considering the reply of appellant and affording him an

opportunity of hearing and is violative of principles of natural justice.

26. I also find merits in the contention of Ld. Counsel for appellant that the

impugned order is vague as it does not given area of unauthorized

construction and the date thereof. The impugned demolition and

sealing orders are passed on the same allegations as under :

“unauthorised construction at ground floor, first floor and

second floor and raising of wall and girders at III Floor”.

27. It is the case of appellant that the construction is about 100 years old

and no new construction had been raised, only repairs were carried

out. Under these circumstances it was incumbent on the respondent

to have mentioned in the notice what exactly was the unauthorized

construction carried out by appellant and date of the same. The

notices are, however, silent in this regard. In my view the Quasi

Judicial Authority ought have given details of unauthorized

construction so as to enable the appellant to given explanation

regarding the proposed demolition and sealing actions.

28. It is to be noted that the order of sealing was passed prior to the order

of demolition even though action u/s 345A of the Act can be taken only

if the conditions u/s 343/344 of the Act exists. In this regard it has

been held in Ahuja Property Developers Pvt. Ltd. Vs. MCD 42

(1990) DLT 474 (DB) as under:-

“Section 343 provides for orders being passed for demolition of

stoppage of building and works inter alia on the ground that they


have been completed without or contrary to the sanctioned plan.

Section 344 provided for an order being passed stopping the

construction of a building or works in certain circumstances.

Section 345A, makes a reference to section 343 and section 344

in inter alia provides that action under section 345A can be taken

for sealing any building before or after making an order for of

demolition under Section 343 and 344 exist. It is true that under

Section 345A, there is no provision for any show cause notice

being given before any action is taken by the authorities under

that provision. In as much as the sealing of a property may act

civil right we would read into section 345A, the principles of

normal justice which would require a show cause notice being

issued, for however small duration it may be before any action u/s

345A is taken, the respondent should issue a show cause notice

and give an opportunity to the builder to explain as to why the

property should not be sealed. Though the said notice may be of

a short duration. Be that as it may we cannot appreciate the

contention of the learned counsel for the petitioner that section

345A contains arbitrary powers. As we have already observed

the said provision is attracted when an order under Section 343

or 344 can be made. The order which is to be passed u/s 345A, is

by way of an interim arrangement so that further mischief or

damage cannot be done. It is to prevent the use of the building

which has been constructed in violation of the law.”

29. I am thus of the view that entire proceedings initiated by issuance of

show cause notice which culminated in the order of sealing and


demolition are violative of principles of natural justice. In this regard it

has been held in 2001 AD Delhi 911 Masonic Club V MCD & Anr. that

since premises were sealed without giving any opportunity to

appellant, it be desealed.

30. For the foregoing reasons the impugned sealing order dated

21.05.2019 and demolition order dated 25.06.2019 cannot be

sustained and are set aside. The appeals are allowed. The appeals

are remanded back to the quasi judicial authority for fresh decision.

Fresh show cause notices be issued to owners / occupiers. The quasi

judicial authority will decide the case preferably within two months by a

speaking order and inform the decision to appellants by registered

post. The appellant is directed to maintain status quo regarding

construction, title and possession of the property in question.

Appellant will also not carry out repairs without the permission of

respondent. As the property was sealed without affording an

opportunity to appellant it is liable to be de-sealed, the respondent is

directed to de-seal it within two weeks of this order.

31. The file of department, if any, be returned with a copy of this order to

the respondent. An attested copy of order be placed in the file of

appeal no. 385/19.

File be consigned to record room.

(MS. POONAM CHAUDHRY) AD&SJ-cum-P.O.

Appellate Tribunal: MCD 07.01.2020.

in the court of ms. poonam chaudhary : addl district &...

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