IN THE COURT OF MS. POONAM CHAUDHARY : ADDL ...mcdonline.gov.in/at/judgementorder/23.pdfKHASRA NO. 225, LADO SARAI, NEW DELHI-110030. APPELLANT VS SOUTH DELHI MUNICIPAL CORPORATION,

Appeal nos. 933/2018, 934/2018, 935/2018, 936/2018, 937/2018, 938/2018, 99/2019, 100/2019, 101/2019, 102/2019, 103/2019 & 104/2019 SMT. SARLA SEJWALVS SDMC Page 1

IN THE COURT OF MS. POONAM CHAUDHARY : ADDL DISTRICT & SESSIONS JUDGE-CUM PRESIDING OFFICER, APPELLATE TRIBUNAL, M.C.D, DELHI. APPEAL NOS. 933/2018, 934/2018, 935/2018, 936/2018, 937/2018, 938/2018, 99/2019, 100/2019, 101/2019, 102/2019, 103/2019 & 104/2019

SH. AZHAR HUSAIN, S/O SH. HUSSAIN ZAMIN, R/O FLAT NO. A-5, SECOND FLOOR, PLOT NO. F-221, FRONT SIDE, KHASRA NO. 225, LADO SARAI, NEW DELHI-110030. APPELLANT

VS

SOUTH DELHI MUNICIPAL CORPORATION, THROUGH ITS DY. COMMISSIONER, SOUTH ZONE, GREEN PARK, NEW DELHI RESPONDENT

APPEAL NO. 934/2018 SH. ANISH PAL, S/O SH. RANBIR SINGH, R/O FLAT NO. A-8, THIRD FLOOR, PLOT NO. F-221, FRONT SIDE, KHASRA NO. 225, LADO SARAI, NEW DELHI-110030. ...APPELLANT VS SOUTH DELHI MUNICIPAL CORPORATION, THROUGH ITS DY. COMMISSIONER, SOUTH ZONE, GREEN PARK, NEW DELHI ...RESPONDENT APPEAL NO. 935/2018 SH. B. P. SHUKLA, S/O LATE SH. BASUDEO, R/O FLAT NO. A-7, THIRD FLOOR,


PLOT NO. F-221, FRONT SIDE, KHASRA NO. 225, LADO SARAI, NEW DELHI-110030. ...APPELLANT VS SOUTH DELHI MUNICIPAL CORPORATION, THROUGH ITS DY. COMMISSIONER, SOUTH ZONE, GREEN PARK, NEW DELHI ...RESPONDENT APPEAL NO. 936/2018

SH. SURESH CHANDRA BHATT, S/O LATE SH. JAMUNA DUTT BHATT, R/O FLAT NO. A-3, FIRST FLOOR, PLOT NO. F-221, FRONT SIDE, KHASRA NO. 225, LADO SARAI, NEW DELHI-110030. ...APPELLANT VS SOUTH DELHI MUNICIPAL CORPORATION, THROUGH ITS DY. COMMISSIONER, SOUTH ZONE, GREEN PARK, NEW DELHI ...RESPONDENT APPEAL NO. 937/2018 SH. SUSHIL MESSY SIONEE, S/O SH. PREM MESSEY PARDESI, R/O FLAT NO. A-1, UPPER GROUND FLOOR, PLOT NO. F-221, FRONT SIDE, KHASRA NO. 225, LADO SARAI, NEW DELHI-110030. ...APPELLANT VS SOUTH DELHI MUNICIPAL CORPORATION, THROUGH ITS DY. COMMISSIONER, SOUTH ZONE, GREEN PARK, NEW DELHI ...RESPONDENT


APPEAL NO. 938/2018 SH. JYOTI SHARMA, W/O SH. DILEEP KUMAR MAMDEO R/O FLAT NO. A-4, FIRST FLOOR, PLOT NO. F-221, FRONT SIDE, KHASRA NO. 225, LADO SARAI, NEW DELHI-110030. ...APPELLANT VS SOUTH DELHI MUNICIPAL CORPORATION, THROUGH ITS DY. COMMISSIONER, SOUTH ZONE, GREEN PARK, NEW DELHI ...RESPONDENT DATE OF FILING APPEALS 21.12.2018 DATE OF ORDER 16.01.2020 APPEAL NO. 99/2018 1. SMT. SARLA SEJWAL,

W/O LATE RAVINDER SEJWAL, R/O F-221, KHASRA NO.225, VILLAGE LADO SARAI, NEW DELHI

2. SHRI SANJAY SEJWAL

S/O PREET SINGH R/P F-204, VILLAGE LADO SARAI, NEW DELHI

3. SHRI BHISHAM KUMAR

S/O SHRI AMAR JEET SINGH R/O E-43, PARYAVARAN COMPLEX, SAIDULAJAB, DELHI – 110030


4. SHRI SUSHIL MASSEY SIONEE, S/O SHRI PREM MASSEY PARDESI

5. SMT. NALINI MASSEY SIONEE

D/O SHRI CHANDRA SHEKHAR GHATGE BOTH R/O F-221, UPPER GROUND FLOOR (GROUND FLOOR), KHASRA NO.225, VILLAGE LADO SARAI, NEW DELHI

6. MRS. JYOTI SHARMA, W/O SHRI DILEEP KUMAR NAMDEO R/O F-221, FIRST FLOOR KHASRA NO.225, VILLAGE LADO SARAI, NEW DELHI

7. MRS. ANITA SURESH,

W/O SHRI SURESH CHANDRA BHATT 8. SHRI SURESH CHANDRA BHATT

S/O LATE JAMUNA DUTT BHATT BOTH R/O F-221, FIRST FLOOR KHASRA NO.225, VILLAGE LADO SARAI, NEW DELHI

9. MR. AZHAR HUSAIN

S/O MR. HUSSAIN ZAMIN R/O F-221, SECOND FLOOR KHASRA NO.225, VILLAGE LADO SARAI, NEW DELHI

10. SMT. RENU SHUKLA

W/O SHRI R. P. SHUKLA 11. SHRI B. P. SHUKLA,

S/O LATE BASU DEO SHUKLA, BOTH R/O F-221, THIRD FLOOR KHASRA NO.225, VILLAGE LADO SARAI, NEW DELHI

12. MRS. SUGANDHA CHATURVEDI

W/O MR. ANISH PAL


13. SHRI ANISH PAL

S/O MR. RANBIR SINGH BOTH R/O F-221, THIRD FLOOR KHASRA NO.225 VILLAGE LADO SARAI, NEW DELHI APPELLANT

VS SOUTH DELHI MUNICIPAL CORPORATION, CIVIC CENTRE, MINTO ROAD, NEW DELHI-110022 RESPONDENT

DATE OF FILING APPEAL 08.12.2019

DATE OF ORDER 16.01.2020 APPEAL NO: 100/2018 1. SMT. SARLA SEJWAL,







5. SMT. MALINI MASSEY SIONEE

D/O SHRI CHANDRA SHEKHAR GHATGE BOTH R/O F-221, UPPER GROUND FLOOR


(GROUND FLOOR), KHASRA NO.225, VILLAGE LADO SARAI, NEW DELHI





9. MR. AZHAR HUSAIN






W/O MR. ANISH PAL

13. SHRI ANISH PAL S/O MR. RANBIR SINGH BOTH R/O F-221, THIRD FLOOR KHASRA NO.225 VILLAGE LADO SARAI, NEW DELHI ...APPELLANT


VS SOUTH DELHI MUNICIPAL CORPORATION, CIVIC CENTRE, MINTO ROAD, NEW DELHI-110002 ...RESPONDENT DATE OF FILING APPEAL 08.02.2019 DATE OF ORDER 16.01.2020 APPEAL NO. 101/2018 1. SMT. SARLA SEJWAL,







5. SMT. NALINI MASSEY SIONEE


6. MRS. JYOTI SHARMA, W/O SHRI DILEEP KUMAR NAMDEO R/O F-221, FIRST FLOOR KHASRA NO.225, VILLAGE LADO SARAI,


NEW DELHI 7. MRS. ANITA SURESH,



9. MR. AZHAR HUSAIN






W/O MR. ANISH PAL

13. SHRI ANISH PAL S/O MR. RANBIR SINGH BOTH R/O F-221, THIRD FLOOR KHASRA NO.225 VILLAGE LADO SARAI, NEW DELHI ....APPELLANT

VS SOUTH DELHI MUNICIPAL CORPORATION, CIVIC CENTRE, MINTO ROAD, NEW DELHI-110002. ....RESPONDENT


DATE OF FILING APPEAL 08.02.2019 DATE OF ORDER 16.01.2020 APPEAL NO. 102/2018 1. SMT. SARLA SEJWAL,











W/O SHRI SURESH CHANDRA BHATT


8. SHRI SURESH CHANDRA BHATT S/O LATE JAMUNA DUTT BHATT BOTH R/O F-221, FIRST FLOOR KHASRA NO.225, VILLAGE LADO SARAI, NEW DELHI

9. MR. AZHAR HUSAIN






W/O MR. ANISH PAL


VS SOUTH DELHI MUNICIPAL CORPORATION, CIVIC CENTRE, MINTO ROAD, NEW DELHI-110022 ...RESPONDENT DATE OF FILING APPEAL 08.02.2019 DATE OF ORDER 16.01.2020


APPEAL NO. 103/2018 1. SMT. SARLA SEJWAL,














9. MR. AZHAR HUSAIN






W/O MR. ANISH PAL


VS SOUTH DELHI MUNICIPAL CORPORATION, CIVIC CENTRE, MINTO ROAD, NEW DELHI-11002 ...RESPONDENT DATE OF FILING APPEAL 08.02.2019 DATE OF ORDER 16.01.2020 APPEAL NO. 104/2018 SMT. SARLA SEJWAL, W/O LATE RAVINDER SEJWAL R/O F-221, KHASRA NO. 225, VILLAGE LADO SARAI, NEW DELHI ...APPELLANT


VS SOUTH DELHI MUNICIPAL CORPORATION, CIVIC CENTRE, MINTO ROAD, NEW DELHI-110002. ...RESPONDENT DATE OF FILING APPEAL : 08.02.2019 DATE OF ORDER : 16.01.2020

ORDER

1. Vide this common order, I proceed to decide appeals No.933/18, 934/18,

935/18, 936/18, 937/18 & 938/18 filed against order of demolition dated

24.10.2017 passed by AE(B), Sh. Vijay Pal Singh, South Zone in respect

of property falling in Khasra No.225, Village Lado Sarai, New Delhi. I also

proceed to decide Appeals No. 99/18, 100/18, 101/18, 102/18, 103/18 and

104/18 vide this common order as they relate to same property Khasra

no.225, Lado Sarai.

2. Appeal No.99/19 has been filed against order of demolition dated

15.12.2017 passed by AE(B), Sh. Sanjeev Jain in respect of property

No.F-221, Khasra No. 225, Lado Sarai, New Delhi. Appeal No.100/18 has

been filed against order of demolition dated 19.01.2018 passed by AE(B),

Ramesh Kumar in respect of property No. F-221, Khasra No. 225, , Lado

Sarai, New Delhi. Appeal No.101/18 has been filed against order of


sealing passed by Dy. Commissioner, South Zone in respect of property

No.F-221, Khasra No 225, Lado Sarai, New Delhi.

Appeal No.102/18 has been filed against order of sealing passed by Dy.

Commissioner, South Zone in respect of property No.F-221, Khasra No.

225, Lado Sarai, New Delhi. Appeal No.103/18 has been filed against

order of demolition dated 24.10.2017 in respect of property No.F-221,

Khasra No. 225, Lado Sarai, New Delhi.

Appeal No.104/18 has been filed in respect of sealing order against

property No.F-225, Lado Sarai, New Delhi passed by Dy. Commissioner,

Vishwender.

3. Briefly stated the facts of the case giving rise to the appeal are that the

appellants are the owners of the properties in question on the plot No. 221

Khasra No. 225, Lado Sarai, New Delhi.

4. The averments made are that the appellants purchased different flats in

the property No. F-221 Khasra No. 225 situated in extended Lal Dora of

Village Lado Sarai, Mehrauli, Delhi. It is also alleged that neither show

cause notice nor impugned demolition-sealing orders were served on the

appellants neither opportunity of personal hearing was afforded.

5. It is also submitted that the impugned order were issued by the

respondent in the name of one Ravi Sejwal, who was never the owner and


landlord of the property in question. It is further stated that the appellants

were never served with show cause notice. The appellant had applied for

compounding of the existing structure, but the respondent refused the

same. It is also alleged that the constructions in the property are very old

and they fall in Lal Dora area. It is also stated that no Show Cause Notice,

demolition Notice, or show cause notice u/s 345A was ever served on the

appellants for unauthorised construction. It is also alleged that the

impugned orders are bad in law as the appellants have not raised any new

contraction. The action of the respondent is violative of mandatory

provisions of the Act and principles of natural justice as no opportunity of

hearing was afforded to the appellants.

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

report and record. Status report was filed stating that respondent has

taken necessary punitive actions against the unauthorized construction

in the property under reference as the property in question was booked

thrice vide file no. (1) 534/UC/B-II/SZ/2017; (2) 624/UC/B-II/SZ/2017

dated 07.02.2017, and (3) 26/UC/B-II/SZ/2018 dated 12.01.2018, on the

ground of unauthorized construction. Further action is under

contemplation and will be taken in due course of time as per policy of

the Department. It is also stated that as per record service of show

cause notices issued u/s 343/344 of the DMC Act, was pasted at site.

However, no proof of service by pasting is available on record. It is


further stated that as per record sealing show cause notice were also

not served upon the appellant. As regards regularization of the property

of the applicant, it is submitted an application for the same, which is

under process.

7. I have heard the Ld. Counsel for appellant and respondent and perused

the record.

8. It is contended by Ld Counsel for appellant that the impugned order has

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

principles of natural justice as such it is liable to be set aside. It is also

stated that the impugned order lack in material particulars as neither the

details nor measurement and extent of alleged unauthorized

constructions, have been mentioned therein.

9. On the other hand the Ld Counsel for respondent submitted 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 exists.

10. 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 principle 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 principles of natural justice. Justice should not

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

11. It is also to be noted that demolition of a building or apart thereof is a

serious matter and entails loss of money. It also leads to occupants

being rendered homeless. Thus the legislature in its wisdom provided

that notice of demolition must be to delivered to the person concerned

and not merely served in the manner notices are served under section

444 of the DMC Act.

12. It is to further be noted section 343 of the Act provides the procedure for

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

provides that 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.

13. Proviso to Clause-1 of Section 343 (1) of the 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

alone the impugned demolition order and the appellate order are

liable to be set aside.”

14. It is also well settled law that before taking any action under section 345-A

of the DMC Act, it is incumbent upon the respondent to serve the show

cause notice upon the person concerned and to afford him an opportunity

of hearing as sealing of property affects the civil rights of the citizens. The


law is well settled that even in administrative proceedings which involves

civil consequences, the doctrine of fairness must held to be applicable. In

this regard, it has been held in AIR 1981 SC 136 S.L. Kapur Vs.

Jagmohan, AIR 1984 SC 127, Liberty Oil Mills Vs. Union of India, that

principles of natural justice demands that a party should be heard before

order adversely affecting or entailing civil consequences is passed.

15. As regards the provision of a Section 345A of the DMC Act, 1957 it was

held by Hon’ble High Court in Ahuja Property Developers (P) Ltd. Vs. MCD

42 (1990) DLT 474 that although it is true that u/s 345A there is no

provision for any show cause notice being given before any action is taken

by the authorities under that provision, however, since the sealing of a

property may effects civil rights, principles of natural justice would be read

into Section 345A, which would require a show cause notice being issued.

However, for a small duration it may be, before any action u/s 345A, is

taken.

16. It is to be noted that in 2001 AD (Delhi) 911 Masonic Club Vs. MCD &

another, it was held that notice was not properly served. There was no

specific mention as to unauthorized portion, area of unauthorized portion

and date of construction. It was held by Hon’ble High Court that such a

notice is no notice in the eyes of law. Since, the premises were sealed

without giving any opportunity to the petitioner, the property was directed


to be desealed with the liberty to the respondent to give notice in

accordance with the law.

17. Thus, in proceedings u/s 345 (A) of the DMC Act 1957, quasi0judicial

authority has to also follow the principles of natural justice. In this regard it

has also been held by the Hon’ble High Court of Delhi. In case of J. T.

(India) Exports Vs. Union of India & Another 94 (2001) DLT 301 (FB) as

under :

“These Principles ware 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. Notices 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.”

18. In view of these above judicial pronouncements, it was incumbent upon

the respondent to serve a show cause notice and order upon the

appellants. Admittedly, in the instant cases show cause notice u/s 343/344

of the Act were pasted at site but no proof of pasting is available on

record and the sealing show cause notice were not served on appellant.

Thus as show case notice were not served upon the appellants and no

opportunity of being heard had been afforded to them , under these

circumstances, the sealing and demolition orders are bad in law and

same are liable to be set aside.

19. The impugned orders are accordingly set aside. The appeals are

remanded back to the quasi judicial authority to decide it afresh within a

month preferably. The respondent is directed to deseal the properties in

question falling in Property No. F-221, Khasra No. 225, Lado Sarai, New

Delhi-110030 within 2 weeks of the date of this order. However, as the

appellants are now aware of demolition and sealing proceedings, the

impugned demolition and sealing order will be treated as show cause


notices. The appellants are directed to appear before quasi Judicial

Authority on 01.02.2020 at 2.30 pm with reply and documents. The quasi

judicial authority will afford a personal hearing to appellant and decide the

matter afresh preferably within a month vide speaking order which be

communicated to appellants by registered post. Appellants are directed to

maintain status quo regarding construction title and possession of the

properties in question and shall not carry out further unauthorized

construction or repairs or create third party interest therein. A copy of order

and record be sent to the respondent. A copy of order be given Dasti to

Ld. counsel for parties.

20. File be consigned to record room.

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

Appellate Tribunal : MCD 16.01.2020

Documents

IN THE COURT OF MS. POONAM CHAUDHARY : ADDL ...mcdonline.gov.in/at/judgementorder/23.pdfKHASRA NO. 225, LADO SARAI, NEW DELHI-110030. APPELLANT VS SOUTH DELHI MUNICIPAL CORPORATION,