IN THE COURT OF MS. POONAM CHAUDHARY : ADDL DISTRICT ...mcdonline.gov.in/at/judgementorder/26.pdf · A NO. 51/2019 GYAN MANDIR SOCIETY VS SDMC Page 2 2. The brief facts leading to

A NO. 51/2019 GYAN MANDIR SOCIETY VS SDMC Page 1

IN THE COURT OF MS. POONAM CHAUDHARY : ADDL DISTRICT & SESSIONS JUDGE-CUM PRESIDING OFFICER, APPELLATE

TRIBUNAL, M.C.D, DELHI. APPEAL NO. 51/2019 GYAN MANDIR SOCIETY, THROUGH AUTHORISED SIGNATORY, SHRI K.S.VAID, MANAGER OF THE INDIAN SCHOOL, AT JOSIP BROZ, TITO MARG, NEAR MOOLCHAND FLYOVER, SADIQ NAGAR, NEW DELHI. .......APPELLANT

VS SOUTH DELHI MUNICIPAL CORPORATION, THROUGH ITS COMMISSIONER, MCD HEADQUARTERS, CIVIC CENTRE, NEW DELHI. .......RESPONDENT DATE OF FILING APPEAL : 21.01.2019 DATE OF ORDER : 29.01.2020.

ORDER

1. By way of the present appeal u/s 347B of the Delhi Municipal

Corporation Act 1957, (hereinafter referred to as the Act) the

appellant has assailed the order of demolition order dated 10.01.2019

passed by A.E.(Bldg) Shri S. L. Saini u/s 343 of the Act.


2. The brief facts leading to the filing of the present appeal are that the

appellant is a registered society and Shri K. S. Vaid, Manager of the

school i.e. The Indian School, is duly authorized by the appellant to

sign, verify, file the present appeal on behalf of the society vide

resolution dated 25.05.2018, passed by the members of the executive

committee.

3. It is further alleged that the appellant was allotted a plot of 2.340

Acres about 300 Sq. Mtrs. for running a Middle School, vide perpetual

lease deed dated 29.10.1996. The appellant had got the building plan

sanctioned from the MCD and constructed the building for running the

school strictly as per sanctioned plan for running a school.

4. It is further alleged that as the school was doing well is subsequently

upgraded to Senior Secondary School and thereafter a supplemental

lease deed dated 18.09.2006 was executed by the Land and

Development office in furtherance of the previous perpetual lease

deed dated 29.10.1996.

5. It is also alleged that after the upgradation of the school the appellant

applied for additions in the school building to meet the requirements

for providing proper class rooms and other facilities to its students. It

is alleged that there are about 3000 students in the school and two

shifts are being run in the school. The MCD vide letter dated

14.02.2007 sanctioned the building plans for construction of

addition/alterations in the existing school building.


6. It is also alleged that the respondent after inspection of the property in

question had issued completion certificates in respect of both the

sanction plans vide completion certificates dated 02.02.1996 and

21.01.2009. It is also alleged that the permissible FAR for the plot of

the appellant is 150% as per the existing building bye-laws the

appellant has utilized only 109.44% of FAR at the time of the grant of

the Completion certificate in the year 2013. The additions made by

the appellant are within the permissible FAR of 150%. The appellant

had constructed some porta cabins in January, 2014, adjoining the

play grounds for sports and change room, and one for storage of

sports equipments/goods. The said cabins are not permanent but are

permissible under the Building Bye-Laws. That the appellant had also

constructed a solar energy system on the roof top of building for

preservation of energy and keeping city green. The appellant had

constructed a support structure for giving proper support to the solar

energy panels for the safety of the students and the school.

7. It is further alleged that even the basement is permissible in the

education institutions and the appellant had applied for the

regularization of the structure. The officials of the respondent visited

the property on 01.01.2019 on the basis of some false complaints and

pointed out certain additions alleged to be against the sanction plan.

The appellant immediately made a representation dated 02.01.2019

and had informed the respondent that there is no violation against the

building bye-laws and no illegal construction had been carried in

violation of the sanctioned plan and had also submitted that if any


deviations are found beyond the permissible limits and compoundable

limits, the appellant is willing to pay the requisite compounding fee for

the same. It is further alleged that the respondent without considering

the said representation dated 02.01.2019 issued a show cause notice

dated 01.01.2019, to appellant which was served on the appellant by

speed post on 04.01.2019, alleging the deviation against completion

plan dated 21.01.2009 in the shape of :

a. One room and six shops (Porta Cabins), one toilet at play ground.

b. Lift (ground to terrace floor) has been installed in the year open to

sky.

c. One small water body at side set back at left side.

d. A small temporary tin shed for parking and one generator room in

the side set back at right side.

e. Eight number of porta cabin which are being used as Classes room

at terrace.

f. Two big halls (tin shed) with solar panels on the roof of terrace.

g. Unauthorised construction of basement floor.

8. It is also alleged that appellant had given reply to the said show cause

notice dated 08.01.2019 stating therein that the porta cabins at the

ground were used for sports and change room, book shop and (2

porta cabins) were used as canteen. It is also alleged that all the

above said structures are temporary and a lift has been installed

exclusively for disabled children, children with special needs and

elderly faculty members visiting the school. The appellant had stated


in their reply dated 08.01.2019 that they would remove the water body

parking shed and pump room.

9. It is also alleged that the small water body and the temporary

structure for parking and generator room had been removed. Two

alleged big halls on the terrace were support structures for solar

panels. The appellant had requested for a personal hearing before the

passing of any final order. The respondent however neither

considered the reply of the appellant nor gave any personal hearing

and passed the impugned order on 10.01.2019 in violation of the

principles of natural justice and mandatory provisions of the Act. It is

also alleged that the respondent without any justification also issued

notice under section 345A of DMC Act, although the appellant was

neither raising any construction nor any work was in progress and the

construction in question was in existence for the last many years,

even the basement has been in existence since 1996.It is further

alleged the respondent also failed to appreciate that porta cabins are

permissible under the Unified Building Bye-laws under Clause 2.0.1

(d) (xv) for which no permission is required. The porta cabins are not

permanent structures and were made to provide sports/change

room/toilet facility and canteen facilities to the students. The

respondent had wrongly alleged the porta cabins as rooms and

shops, although the same are temporary structures and can’t be

dismantled within no time and have been in existence since January,

2014 and as such they are protected under the Special Protection Act

and against which no demolition action could be taken.


10. It is also alleged that the impugned order has been passed ignoring

the fact that basement is permissible in the school building and the

same was constructed at the time when initial construction was

raised. The appellant had already applied for the regularization of the

same as the same is within the permissible and compoundable limits.

It is also alleged that the respondent had failed to appreciate that the

addition in the set back are compoundable

11. It is also alleged that the impugned order is non-speaking order as it

does not specify the details of the area which is non-compoundable

and the area which is more than the permissible FAR and is

compound able, so that the appellant could rectify the

defaults/additions in the property, as permissible under the Act and

building bye-laws.

12. Notice of the appeal was issued to respondent who filed various

status reports and the record.

13. I have heard the Ld. Counsel for parties and perused the record.

14. The property in question was booked vide FIR dated 01.01.2019 on a

complaint for deviations against Completion 03/CC/B/CZ/09 dated

21.01.2009. The respondent had filed various status reports. In the

initial status reports, it was stated that the officials of respondent of

South Delhi Municipal Corporation (SDMC) inspected the school

premises on 01.01.2019, pursuant to a complaint. The building plan /


property in question, was sanctioned in the year 1993 vide File No.

644/B/HQ/1993 for the construction of school building having

provision of Ground, First, Second and Barsati Floor. The occupancy

certificate was issued vide File No. 03/CC/B/CZ/2009 dated

21.01.2009. During inspection, deviations against completion plan

came to the notice, details of which are as under:

(i) One room & six shops (porta cabins), one toilet at playground.

(ii) Lift (ground floor to terrace floor) has been installed in the area

open to sky.

(iii) One small water body at side setback at lift side.

(iv) A small temporary tin shed for parking and one generator room

in the side setback at right side.

(v) Eight number of porta cabins which are being used as class

rooms at terrace.

(vi) Two big halls (tin shed) with solar panels on the roof at terrace.

(vii) Unauthorized construction of basement floor.

It was further stated that Noticee filed reply dated 08.01.2019 in

response to aforesaid show cause notice. The respondent /SDMC

considered the same but as the reply was found unsatisfactory, the

respondent passed demolition order dated 10.01.2009 and sent it to

the Noticee on 16.01.2019 through speed post with the direction to

demolish the alleged deviations / unauthorized construction within six

days. It was further stated that noticee preferred present appeal

against the demolition order, This Tribunal restrained respondent /

SDMC from taking any coercive action in the property, in question,


pursuant of impugned order till next date of hearing. The Tribunal

also directed appellant to file affidavit giving details of construction

with measurements of the existing construction along with existing site

plan and photographs of the property in question within five working

days, failing which stay order granted shall deemed to be vacated and

directed to concerned AE(B) to verify whether details of constructions

mentioned.

15. It was also stated the official of respondent /SDMC accordingly

inspected the site to ascertain whether construction shown in the plan

adhered the existing structure at site or not. The site inspection

revealed that existing site plan was not in accordance with the

structures existing at site. There were number of inconsistencies in

the structure (s) shown in the plan vis-a-vis existing at site, details of

which are mentioned as under:-

Basement Floor

(a) Stair dimensions missing.

(b) 2 dimensions of unexcavated area missing.

(c) Dimension of open space / vacant space in rear corridor missing.

Ground floor

(a) Wooden enclosures in entrance lobby not shown/exist at site

(32.75 Sqm. i.e. 352.54 app)

(b) Stairs leading to basement on RHS front blocked with brick wall &

wooden plank.


(c) Wooden enclosures at LHS staircase lobby.

(d) Wooden enclosure inside auditorium

(e) Steel ladder in rear of auditorium

(f) A pucca counter (3.4mx3.5m) between dance area and

auditorium.

(g) Extension of steps adj. Dance area extended toward LHS side

setback.

(h) Wooden enclosure in rear staircase lobby

(i) Steel frames used for parking on RHS side set back still exist / not

shown in the drawing.

(j) In play ground (i) Wired enclosure for kids covering 35.50

Mtx9.50m (ii) basket ball court 31.50m x 17.85 mt. With Kota

Stone flooring (iii) Cemented cricket practice net.

(k) Pumps enclosure at RHS on Play ground.

(l) Cemented cooking platform and 5 porta cabin / shops on RHS set

back of play ground.

(m) CC flooring between toilet block and 5 porta cabins in rear RHS

corner of ground.

First Floor

(a) 2 partitions in computer lab.

(b) Enclosure (4.2mx2.45m) by wooden panelling, in LHS staircase

lobby and AV room.

(c) Enclosure (6.1mx2.2m) in rear stair case lobby being used as

headmistress room.


Second Floor

(a) Partition wall converting computer room into two regular class

rooms.

(b) Change in the size of store adj computers room by shifting its front

wall.

(c) Enclosure (6.15mx2.2m) by wooden panelling in the lobby in rear

staircase lobby being used as head mistress room.

(d) Social science room has been converted into two separate class

rooms. The partition not shown in the drawing.

(e) Music room partitioned to make two separate rooms-one as maths

lab and other as western music room.

(f) Library has been extended by decreasing the adjoining class room

size which is being used as Indian Music room now.

(g) Enclosure in LHS stair case lobby (4.6mx2.40m) by glass and

aluminium panelling, which is used as extension of library.

Third Floor

(a) Dance room on RHS has been converted into separate class

rooms by using wooden panelling.

(b) Enclosure in RHS staircase lobby (6.10mx2.5m) being used as

examination room.

(c) Enclosure in LHS staircase lobby (4.85mx2.40m) made by

wooden panelling and glass, being used as medical store.

(d) Though shown in drawing as rooms, the boys and Girls toilet block

shown in CC have been converted into two separate rooms

partitioned by wooden plan.


Terrace Floor

RHS stair case in front right not shown.

LHS stair case in front shown which terminates at third floor only.

The steel frames used as base for solar panels have been

enclosed by translucent sheets, Electricity connection, lights as

well fans installed at terrace, below the solar panel, Music

instruments were also seen in the hall below solar panels,

indicating as if this area was being used for music classes.

16. It was also stated by respondent that it had initiated sealing

proceedings u/s 345-A of the DMC Act 1957 against alleged

deviations/unauthorized constructions and show cause notice bearing

No. D/12/SHOW CAUSE NOTICE/DC/EE(B)-1/CZ/2019 dated

18.01.2019 was issued in the name of above named Noticee.

However, in view of interim stay granted by this Hon’ble Tribunal vide

order dated 22.01.2019, further proceedings have been kept in

abeyance.

17. The respondent also filed another status report dated 11.04.2019.

stating that appellant had filed application for regularization of excess

coverage / structure, which do not form part of completion plan. The

same was processed vide File No. 06/B/UCR/CZ/19 dated

18.01.2019. The shortcomings in the submitted case were conveyed

to the appellant vide letter No. D/476/AE(Bldg.)-1/Central Zone dated

25.01.2019 for carrying out necessary compliance. It was also

submitted that as per policy, as long as existing structure consists of


non-compoundable coverage / structure, the application for

regularization cannot be processed. Since school authorities failed to

demolish / remove the non-compoundable structures despite sufficient

time, respondent rejected the application for regularization and

conveyed the same to the applicant / appellant. The appellant was

given liberty to remove the non-compoundable structure and get the

rejected application revived.

18. Respondent filed further status report stating that pursuant to

application moved by appellant for regularization after rectifying non-

compoundable deviations the property in question was inspected and

it was found that rectification undertaken were not complete. The

department had received a letter dated 09.09.1991 from appellant

informing that they had undertaken rectification work in the school

building. The non-compoundable deviations existing at site were

found as under :

NON-COMPOUNDABLE DEVIATIONS EXISTING AT SITE:-

Sr.No. Floor Details of Deviations Status

1. Basement Basement was required to be filled up as it cannot be used as class room without NOC from Fire Department.

To be complied with

2. Ground Floor

Wooden enclosures in entrance lobby not shown/exist (32.75 sqm i.e. 352.5 app.

Not removed.

Stair leading to basement on Not removed.


RHS front blocked with wall & wooden plank.

Wooden enclosure at LHS staircase lobby.

Not removed.

Wooden structure inside auditorium

Not removed.

Steel ladder in rear auditorium

Removed.

A pucca counter (3.4x3.5mm) between dance area and auditorium

Removed.

Extension of steps adj. Dance and extended toward LHS side setback.

Not removed.

Wooden enclosure in rear staircase lobby.

Removed.

Steel frames used for parking on RHS side set back still exist not shown in the drawing

Removed

In play ground i) Wired enclosure for kids covering 35.50x9.50m (ii) basked ball court 31.50mx17.85m with Kota Stone flooring (iii) Cemented cricket practice net.

Not Removed.

Pumps enclosure at RHS of Play Ground.

Removed.

Cemented cooking platform adj 5 porta cabin / shops on RHS set back of play ground.

Not removed.

CC flooring between toilet block and 5 porta cabins in rear RHS corner of ground.

Not removed.

One Room & six shops (porta cabins), one toilet at playground.

Not removed.


LIFT (Ground Floor to terrace Floor) has been installed in the area open to sky).

Not removed.

3. First Floor 2 Partitions in computer lab. Not removed.

Enclosures (4.2m x 2.45m) by wooden panelling in LHS staircase lobby adj. AV room).

Not removed.

Enclosure (6.1m x2.2m ) by wooden panelling in the lobby in rear staircase lobby being used as head mistress room

Removed.

4. Second Floor Partition wall converting computer rooms into two regular class rooms.

Not removed.

Change in the size of store adj. Computers room by shifting its front wall.

Not complied with.

Enclosure (6.15m x 2.2m) by wooden panelling in the lobby staircase lobby being used as head mistress room.

Removed.

Social science room has been converted into two separate rooms. The partition not shown in the drawing.

Not complied with.

Music room partitioned to make western music room.

Not removed.

Library has been extended by decreasing the adjoining class room size which being used as Indian Music Room now.

Not removed.

Enclosure in LHS stair case lobby (4.6x2.4m) by glass and aluminium panelling, which is used as extension of

Not removed.


library.

5. Third Floor Dance room on RHS has been converted into two separate class rooms by using wooden panelling .

Not removed.

Enclosure in RHS staircase lobby (4.85mx2.40m) made by wooden panelling and glass, being used as medical store.

Not removed.

Though shown in drawing as rooms, the boys and Girls toilet block shown in CC have been converted into two separate rooms partitioned by wooden panel.

Partly modified.

6. Terrace Floor RHS stair case in front right not shown.

Not removed.

The steel frames used as base for solar panels have been enclosed by translucent sheets, Electricity connection, lights as well as installed at terrace, below the solar panel, Misc. Instruments were also seen in the hall below solar panels, indicating as if this area was being used for music classes.

Not cleared.

Two big halls (tin shed) with solar panels on the roof at terrace.

Not removed.

Eight number of porta cabins which are being used as class rooms at terrace.

Removed.


19. The impugned order has been assailed on the ground that action of

respondent is in violation of statutory provisions of the act and

principles of natural justice as no opportunity of hearing was afforded.

On the other hand, Ld. counsel for respondent contended that

statutory provisions were complied with, and as appellant failed to

show that the construction is authorized, the same is liable to be

demolished.

20. The next contention of Ld. counsel for appellant is that appellant has

complied with almost all the directions/deviations pointed out by

respondent. The appellant had also applied for regularisation but the

same was rejected vide order dated 06.05.2019 without assigning any

reason. The respondent had also arbitrarily revoked the Completion

plan of appellant vide order dated 08.05.2019. It is also alleged that

the Deputy Director of Education (DDE) had written a mischievous

letter to Delhi Fire Services and SDMC, referring to an alleged

inspection of 10.12.2018, whereas no such inspection took place and

raised an issue with regard to sanctioned plan of school building and

clarification as to whether necessary action i.e. withdrawal of NOC

has been cancelled or withdrawn. The Director of Delhi Fire Services

had thereafter suspended the fire safety certificate of school dated

20.09.2018 valid for three years from the date of issue. The DDE

acted at the behest of Committee on petitions GNCT Delhi.

21. It is also alleged that despite several rectifications and demolitions

done by appellant, the respondent without considering the same


issued new improvised directions asking the appellant to comply with

other additional requirements. The respondent cannot be permitted to

improvise its stand and put up more onerous conditions.

22. In this regard reliance has been placed upon a judgment of

Constitution of Hon’ble Supreme Court Bench’ in case titled Mahender

Singh Gill V/s. Chief Election Commissioner 1978(1) SCC 405

wherein it has been held as under :-

“The second equally relevant matter is that when a

statutory functionary makes an order based on certain

grounds, its validity must be judged by the reasons so

mentioned and cannot be supplemented by fresh

reasons in the shape of affidavit or otherwise.

Otherwise, an order bad in the beginning may, by the

time it comes to Court on account of a challenge, get

validated by additional grounds later brought out. We

may here draw attention to the observations of Bose,

J. in Gordhandas Bhanji “

23. It is also alleged that the construction of the property in question is

protected under the National Capital Territory of Delhi Laws Act which

provides that all notices issued by any local authority for initiating

action against encroachments or unauthorized development in

respect of areas referred to in Sub-section(1) shall be deemed to have

been suspended and no punitive action shall be taken till 31.12.2020.


24. It is also alleged that this Tribunal passed order dated 06.06.2019 in

Appeal No. 322/19 filed against revocation of completion plan dated

08.05.2019 and appeal no. 323/19 filed against order of rejection of

regularization plan dated 06.05.2019 directing the SDMC/respondent

to submit a report regarding non compoundable deviations. The

appellant received a communication dated 09.07.2019 wherein a list

of alleged non compoundable deviations were enclosed but till date

portions which can be regularised have not been intimated to

appellant are non-compoundable deviations in appeal no. 323/19

pointed out by respondent are as under :

1. Basement was required to be filled up as it cannot be used without

NOC from Fire Department. (Not filled up).

2. Lift (GF to Terrace Floor) has installed in area open to sky. (Not

removed).

3. Steel frames used as base for solar panels have not been brought

under permissible height. (Not removed).

4. Set back used to be cleared. (Not cleared).

25. Ld. Counsel for the appellant also alleged that there were no violation

against the Building Byelaws and no unauthorized construction has

been raised beyond the permissible limit as per sanctioned building

plan. It is also stated that the deviations beyond permissible limits are

compoundable.


26. It is also contended by Ld. counsel for appellant that even though

appellant removed all the said deviations the respondent thereafter

told the appellant to remove the following deficiencies:-

1. Basement-rooms at basement to be removed.

2. Ground floor : Side set back-staircase and tin shed to be removed

3. In play ground one swing to be shifted to other side.

4. Terrace floor: Two tin shed below the solar panels on the roof at

terrace to be remove.

27. The appellant also removed the same. It is stated that the appellant’s

request for regularization was again denied on 28.10.2019 wherein

new set of deficiencies were pointed out. The appellant rectified the

said deviations.

28. It is alleged by Ld. counsel for appellant that school building was

constructed in 1996 and building was constructed in 1996 and

completion certificate was given on 02.02.1996. Basement was part of

the building since 1996. Thereafter, some additions/alterations were

undertaken in the building and another completion certificate was

issued. It is further stated that the basement is permissible for parking

of vehicles/services and storage. It is also stated that the basement is

permissible in educational institutions as per Municipal by-laws for

parking, services, storage. The appellant is using the basement for

parking.


29. Ld. Counsel for the appellant contended that pursuant to the

impugned demolition order, appellant submitted action taken report

with list of rectifications carried out by the school which are as under :

Sl.No

Details of Deviations and (Status Report) of SDMC

Action Taken report of the School

1. Basement Basement was required to be filled up as it cannot be used as class room without NOC from the Fire Department (To be complied with)

Basement is not in used as confirmed by Delhi. Fire Service vide their letter dated 12.04.2019 after site inspection on 04.04.2019.(copy enclosed) – Ref. Annexure : 01 Ref.Annexure: 02 Regularisation of Existing Structure Plan including basement submitted to SDMC is pending for disposal / consideration.

2. Ground floor Wooden enclosure in entrance lobby not shown/exist (32.75 sqm i.e. 353.5 app. (Not Removed)

Removed – Ref.Annexure : 03

Stairs leading to basement on RHS front blocked with wall & wooden plank. (Not Removed)

Removed-Ref.Annexure : 04

Wooden enclosure at LHS staircase lobby. (Not Removed)

Removed- Ref.Annexure : 05

Wooden structure inside auditorium (Not Removed)

Removed – Ref.Annexure : 06

Steel ladder in rear auditorium. (Removed)

Removed


A pucca counter (3.4x3.5mm) between dance area and auditorium. (Removed)

Removed

Extension of steps adj. Dance and extended toward LHS side setback (Not Removed)

Removed- Ref.Annexure : 07

Wooden enclosure in rear staircase lobby (Removed)

Removed

Steel frames used for parking on RHS side set back still exist not shown in the drawing. (Removed)

Removed

In play groundi) Wired enclosure for kids covering 35.50x9.50m (ii) basket ball court 31.50m x 17.85m with Kota Stone Flooring (iii) Cemented cricket practice net. (Not Removed)

i) Wired enclosure Removed – Ref. Annexure : 08

ii) Approved RIDOCYL 5 layer Acrylic coating has been put on the surface of the ball court –Ref. Annexure : 09

iii) Cricket practicing pitch (Net Practice)- Covered with mat. Ref. Annexure : 10

Pumps enclosure at RHS of Play Ground (Removed)

Removed

Pumps enclosure at RHS of Play Ground (Removed)

Removed

Cemented cooking platform adj. 5 porta Removed-


cabin/shops on RHS set back of play ground.(Not Removed)

Ref.Annexure : 11

CC flooring between toilet block and 5 porta cabins in rear RHS corner of ground (Not Removed)

Removed-Ref. Annexure : 12

One room & six shops (porta cabins), one toilet at playground.(Not Removed)

Removed-Ref. Annexure : 13

Lift (Ground Floor to terrace floor) has been installed in the area open to sky).(Not Removed)

Used for the children with special needs and visiting senior faculty members. Included in permissible FAR.

3. First Floor 2 Partitions in computer lab. (Not Removed) Enclosures (4.2m x 2.45m) by wooden panelling in LHS staircase lobby adj. AV room) (Not Removed) Enclosure (6.1m x2.2m) by wooden panelling in the lobby in rear staircase lobby being used as head mistress room (Removed)

Removed- Ref. Annexure : 14 Removed- Ref. Annexure : 15 Removed

4. Second Floor Partition wall converting computer rooms into two regular class rooms (Not Removed) Change in the size of store adj. Computers room by shifting its front wall. (Not Complied with) Enclosure (6.1m x 2.2m) by wooden panelling in the lobby in rear staircase lobby being used as head mistress room. (Removed)

Removed-Ref.Annexure : 16 Complied as per plan.-Ref.Annexure : 17 Removed Complied as per


Social science room has been converted into two separate rooms. The partition not shown in the drawing.(Not Complied with) Music room partitioned to make separate rooms one as maths and as western music room (Not removed) Library has been extended by decreasing the adjoining class room size which being used as Indian Music room now.(Not Removed). Enclosure in LHS stair case lobby (4.6x2.4m) by glass and aluminium panelling which is used as extension of library. (Not Removed)

plan.- - Ref. Annexure : 18 Removed-Ref.Annexure : 19 Removed- Ref.Annexure : 20 Removed- Ref.Annexure : 21

5. Third Floor Dance room on RHS has been converted into two separate class rooms by using wooden panelling.(Not Removed) Enclosure in RHS staircase lobby (6.10mx2.5m) being used as examination room (Not Removed) Enclosure in LHS staircase lobby (4.85mx2.40m) made by wooden panelling and glass, being used as medical store (Not Removed) Though shown in drawing as rooms, the boys and girls toilet block shown in CC have been converted into two separate rooms partitioned by wooden panel. (Partly modified).

Removed-Ref.Annexure : 22 Removed- Ref.Annexure : 23 Removed- Ref. Annexure: 24 Separate rooms Removed and modified as per plan to boys and girls toilet block-Ref. Annexure: 25


6. Terrace Floor RHS stair case in front right not shown(Not Shown) The steel frames used as base for solar panels have been enclosed by translucent sheets, Electricity connection, lights as well installed at terrace, below the solar panel, Misc. Instruments were also seen in the hall below solar panels, indicating as if this area was being used for music classes (Not Clear) Two big halls (tin shed) with solar panels on the roof at terrace (Not Removed) Eight number of porta cabins which are being used as class rooms at terrace (Removed).

Shown in the Revised Plan. Cleared. To promote the special programs for renewal energy production by the Central Government, the School has installed solar power energy system and the support tin structure is for regular maintenance of the solar panels. Removed.

30. Ld. counsel for appellant also argued that lift is a part of the building

and secondly requirement of lift is also provided under the provisions

of “The Rights of Persons with Disabilities Act, 2016. It is further


submitted that the lift is already covered under the National Capital

Territory of Delhi Laws (special provisions) Second Act 2011 and,

therefore, the same cannot be termed as deviation.

31. It is also the validity of the demolition order dated 10.01.2019 has to be

ascertained with respect to the alleged deviations mentioned therein

and respondent SDMC cannot bring in new alleged deviations as the

same is barred in view of judgment of “Mohinder Singh Gill V/s Chief

Election Commissioner”(1975) 1 SCC 405 (Supra).

32. I have heard the Ld. counsels for parties and perused the record.

33. It is to be noted principles of natural justice require affording due

opportunity of hearing and opportunity of submitting documents.

Therefore, it is to be seen whether before passing the impugned

orders, the quasi judicial authority has acted in accordance with the

principles of natural justice or not.

34. The quasi-judicial authority is bound to conduct the proceedings in

accordance with the principles of natural justice. The cardinal principle

of natural justice is that none can be condemned without notice and

opportunity of being heard. It is not a mere formality and the same is

to be observed strictly before passing any order. The rule of law and

the principles of natural justice require that quasi-judicial authority

must conduct its proceedings in accordance with the principles of

natural justice. Justice should not only be done but the same should


also appear to have been done. In this regard, it has been held by

Hon’ble High Court of Delhi in case titled J.T. (India) Exports Vs.

Union of India & Another 94 (2001) DLT 301 (FB) has observed:

“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.”


35. Further held in AIR 1978 Supreme Court 597, Menka Gandhi Vs.

Union of India, it was held that although there may not be positive

words in the statute requiring that the party shall be heard, yet the

justice of common law will supply the omission of the legislature. The

principle of audi-alteram-partem which mandates that no one shall be

condemned un-heard, is part of rules of natural justice. Natural justice

is a great humanizing principle intended to invest law with fairness

and to secure justice and over the year it has grown into a widely

pervasive rule affecting large area of administrative action. Inquiry

must always be done. Doctrine of fairness in action demands that an

opportunity to be heard should be given to a person affected. The law

must now be taken to be well settled that even in administrative

proceedings which involves civil consequences, the doctrine of

fairness must be held to be applicable.

36. For the sake of repetition it may be stated the validity of the impugned

order is to be judged by the Tribunal on the basis of the reasons

mentioned in the impugned order and the documentary evidence

considered by the quasi judicial authority before passing the same. If

the quasi judicial authority has arrived at any finding without any

basis, then such finding can not be accepted as valid as held in

Mohinder Singh Gill & Anr. Vs. The Chief Election Commissioner,

New Delhi and Others, Supra.


37. It has also been held in 1976 Rajdhani Law Reporter

(Note) 139 titled as Budh Ram Vs. Municipal Corp. as

under :

Delhi Municipal Corporation Act, S. 343. Notice/order

of demolition U/s. 343 of the Act must be a speaking

order and should contain reasons. Upon failure MCD

cannot contend that petitioner had knowledge.

38. In the instant case as the order of demolition is not in accordance with

the statute which require giving of reasons, it is bad in law, reasons

are also essential as the order is appealable u/s. 343(2) of the Act.

The requirement was thus mandatory.

39. Thus the impugned order must be speaking one and should contain

reason. However, the perusal of impugned order goes to show that it

simply states as under :

a. One room and six shops (Porta Cabins), one toilet

at play ground.

b. Lift (ground to terrace floor) has been installed in

the year open to sky.

c. One small water body at side set back at left side.

d. A small temporary tin shed for parking and one

generator room in the side set back at right side.

e. Eight number of porta cabin which are being used

as Classes room at terrace.


f. Two big halls (tin shed) with solar panels on the

roof of terrace.

g. Unauthorised construction of basement floor.

Absolutely no reason has been given in the impugned order as to on

what basis the AE came to the conclusion that construction was

unauthorised. It is also to be noted that reply to show cause notice

was given but impugned order did not deal with the reply.

40. It is also to be noted that the order under section 343(1) is wholly non

speaking which is in contravention of the statute and thus

unsustainable. The impugned demolition order does not give any

reason as to how and why the AE(B) come to the conclusion that

construction was unauthorised. The order is thus in contravention of

section 343 of the Act which provides that apart from other formalities

mentioned therein the order has to contain a brief statement of

reasons.

41. In this regard it has been held by Hon’ble Supreme Court in Erusia

Equipment & Chemicals Ltd. Vs. State of West Bengal, AIR 1975 SC

266 that orders which were subject to judicial review must be in

compliance with principles of natural justice namely (a) proper

hearing, (b) decision by an unbiased mind, (c) taking into

consideration all relevant factors and (d) reasons to be recorded. The

impugned order clearly goes to show that there is a complete lack of


reasoning before arriving at the conclusion reflected therein. Hence

in my view the impugned order is not sustainable in the eyes of law.

42. For the foregoing reasons the impugned order dated 10.01.2019

cannot be sustained, the same is accordingly set aside. The appeal

stands allowed. The case is remanded back to the quasi judicial

authority for a fresh decision within a period of one month. The

decision be intimated to the appellant by registered post. The

appellant is directed to maintain status quo regarding construction,

title and possession of the property in question and shall not carry out

further construction or create third party interest therein or part with

possession of the subject property.

43. The record of Department be returned to respondent alongwith a copy

of this order.

File be consigned to record room.

(POONAM CHAUDHRY)

AD&SJ-cum-P.O.

Appellate Tribunal:MCD

29.01.2020

Documents

IN THE COURT OF MS. POONAM CHAUDHARY : ADDL DISTRICT ...mcdonline.gov.in/at/judgementorder/26.pdf · A NO. 51/2019 GYAN MANDIR SOCIETY VS SDMC Page 2 2. The brief facts leading to