Appeal no. 177/12, 176/12, 112/12, 536/11 & 111/12 Page 1

IN THE COURT OF MS. POONAM CHAUDHARY : ADDL DISTRICT & SESSIONS JUDGE-CUM PRESIDING OFFICER, APPELLATE TRIBUNAL, M.C.D, DELHI. APPEAL NO. 177/12

1. SMT. SUDERSHAN, W/O SHRI MAHIPAL SINGH,

T-21, BLOCK-T, GREEN PARK MAIN, NEW DELHI-110016.

2. SMT. SABRA MALIK,

WIFE OF SHRI HANIF MALIK, R/O H.NO. RZ-55/6, TUGLAQABAD EXTEN. NEW DELHI-110019. APPELLANTS VS MUNICIPAL CORPORATION OF DELHI, THROUGH ITS COMMISSIONER, CITY CIVIC CENTRE, MINTO ROAD, DELHI-110006. RESPONDENT DATE OF FILING APPEAL : 10.04.2012 DATE OF ORDER : 29.11.2019 APPEAL NO. 176/12 SH. RAJESH GUPTA (HUF), THROUGH RAJESH GUPTA KARTA, S/O SHRI L.C.GUPTA, R/O H.NO. E-22, GEETANJALI ENCLAVE, NEW DELHI-110017. APPELLANTS VS

Appeal no. 177/12, 176/12, 112/12, 536/11 & 111/12 Page 2

MUNCIPAL CORPORATION OF DELHI THROUGH ITS COMMISSIONER, CITY CIVIC CENTRE, MINTO ROAD, DELHI-110006. RESPONDENT DATE OF FILING APPEAL : 10.04.2012 DATE OF ORDER : 29.11.2019 APPEAL NO. 112/12 1. SMT. SUDERSHAN,

W/O SHRI MAHIPAL SINGH, R/O H.NO. T-21, BLOCK-T, GREEN PARK MAIN, NEW DELHI-110016.

2. SMT. SABRA MALIK WIFE OF SHRI HANIF MALIK, R/O H.NO. RZ-55/6, TUGHLAQABAD EXTENSION, NEW DELHI-110019 APPELLANTS VS MUNICIPAL CORPORATION OF DELHI, THROUGH ITS COMMISSIONER, CITY CIVIC CENTRE, MINTO ROAD, DELHI-110006. RESPONDENT DATE OF FILING APPEAL : 19.03.2012 DATE OF ORDER : 29.11.2019 A.NO. 536/11 1. SMT. SUDERSHAN,

W/O SHRI MAHIPAL SINGH R/O H.NO. T-21, BLOCK-T, GREEN PARK MAIN,

Appeal no. 177/12, 176/12, 112/12, 536/11 & 111/12 Page 3

NEW DELHI-110016

2. SHRI RAJESH GUPTA (HUF), THROUGH RAJESH GUPTA KARTA, S/O SHRI L.C.GUPTA, R/O H.NO. E-22, GEETANJALI ENCLAVE, NEW DELHI-110017.

3. SMT. SABRA MALIK,

WIFE OF SHRI HANIF MALIK, R/O H.NO. RZ-55/6, TUGHLAQABAD EXTENSION, N.DELHI-110019. APPELLANTS VS MUNCIPAL CORPORATION OF DELHI, THROUGH ITS COMMISSIONER, TOWN HALL, CHANDNI CHOWK, DELHI-110006. RESPONDENT DATE OF FILING APPEAL : 04.11.2011 DATE OF ORDER : 29.11.2019 A.NO. 111/12 SHRI RAJESH GUPTA (HUF), THROUGH RAJESH GUPTA KARTA, S/O SHRI L.C.GUPTA, R/O H.NO. E-22, GEETANJALI ENCLAVE, NEW DELHI-110017. APPELLANT VS MUNICIPAL CORPORATION OF DELHI, THROUGH ITS COMMISSIONER, CITY CIVIC CENTRE, DELHI-11006. RESPONDENT DATE OF FILING APPEAL : 19.03.2012 DATE OF ORDER : 29.11.2019

Appeal no. 177/12, 176/12, 112/12, 536/11 & 111/12 Page 4

ORDER

1. By way of this order, I shall dispose of the appeal No.536/11 filed against

the order of demolition dated 08.12.2021 passed by AE(B) Shri Ravi Kant

Gupta order of demolition dated 16.09.2011 passed by AE (B), Sh. S. K.

Bhasin, orders of demolition dated 28.09.2011 passed by AE (B), Sh. P. K.

Rastogi. The order dated 08.12.2010 was issued in respect of basement

and ground floor, demolition order dated 16.09.2011 was passed in respect

of the first floor and demolition order dated 28.09.2011 was in respect of

third and fourth floor of property No. TA-102-103 Main Okhla Road,

Tuglakabad Extension, New Delhi.

2. Appeal No. 111/12 has been filed against order of sealing dated

03.11.2011 in respect of third floor and part of fourth floor of property

bearing No. TA-103 Tuglakabad Extension.

3. Appeal No.111/12 been filled against order of sealing dated 03.11.11 in

respect of third floor and part fourth floor of property no.TA-103

Tuglakabad Extension.

4. Appeal No. 112/12 has been filed against order of sealing dated 03.11.2011

in respect of property No. TA-102, Tuglakabad Extension.

Appeal no. 177/12, 176/12, 112/12, 536/11 & 111/12 Page 5

5. Appeal No. 176/12 has been filed against rejection of regularisation of

property no. TA-103, Appeal No. 177 has been filed against rejection of

regularisation of property No. TA-102, Main Okhla Road, Tuglakabad

Extension.

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

the property bearing Municipal No. TA-102 admeasuring 100 Sq. Yards

(out of 200 sq.yards) at Main Okhla Road, Tughlakabad Extension, New

Delhi, forming part of Khasra No. 483 was purchased by the appellants

from its erstwhile owners vide registered sale deed dated 25.06.2010 and

registered in the name of appellant No. I.

7. It is further stated that the property bearing No. TA-103 admeasuring 132

Sq.Yards Main Okhla Road, Tughlaqabad Extension, New Delhi, part of

Khasra No. 484 admeasuring 132 sq. yds. was purchased by appellant No.

2 vide registered vide sale deed dated 22-06-2010. Appellant No. 3

purchased left side portion of property No. TA 102, Main Okhla Road,

Tuglakabad Extension, New Delhi vide registered sale deed dated

25.06.2010.

8. It is also stated that that though construction in the property was old and

existing at the time of its purchase by appellants but appellants did not

Appeal no. 177/12, 176/12, 112/12, 536/11 & 111/12 Page 6

notice that the constructions existing at site were not mentioned in the sale

deeds of the appellants.

9. It is also alleged that as the property in question was in dilapidated

condition the appellants on the advice of the architect, contacted the

concerned officials of respondent for grant of permission to carry out

necessary repairs and on personal meeting the AE(Bldg) South Zone,

MCD it was revealed that permission was required to be obtained from

the MCD for complying out the repairs envisaged in building bye laws

6.4.1.

10. It is further alleged the appellants thereafter started carrying out the repair

and reconstruction work of dilapidated portions of the property in question

i.e. Re-plastering, re-flooring, re-roofing, change of slabs of stairs giving

the external facade a new look by fixing tiles etc.

11. It is also alleged that some people of locality having an evil eye on the

property in question and with an intent to blackmail and extort money from

the appellants, lodged false complaints against them in MCD and officials

of respondent demolished some portion of the property in question without

serving show cause or demolition order on the appellants on the pretext

that action was taken at ongoing stage of unauthorised construction,

even though no construction was going on .

Appeal no. 177/12, 176/12, 112/12, 536/11 & 111/12 Page 7

12. It is also alleged that the appellants thereafter stopped the repair work in

the property, however, on 02-11-2011 the officials of BSES Rajdhani

Power Limited disconnected the electric supply of the property in question

and handed over a copy of the letter dated 19-10-2011 wherein all the four

demolition orders were referred to. The appellants immediately contacted

the officials of respondent for supplying copies of the orders but they

refused to do so.

13. It is also alleged that the respondent had no right to demolish/seal the

property in question because no unauthorised constructions had been

carried out by the appellants. It is also stated that neither show cause

notice as warranted under DMC Act was served jupon the appellants nor

any opportunity of personal hearing was afforded to them before demolition

action was taken and property in question was sealed.

14. That the impugned orders have been assailed on the grounds that they

are bad in law, arbitrary, illegal and without jurisdiction as the appellants

were not served with the show cause notice on orders, neither an

opportunity of personal hearing was afforded to them. It is also stated that

the impugned orders were passed in mechanical manner without

considering the fact and circumstances of the case.

Appeal no. 177/12, 176/12, 112/12, 536/11 & 111/12 Page 8

15. It is further stated that even on merits the impugned orders are illegal as

they have been passed without considering whether the alleged

unauthorised constructions existed since prior to 08.02.2007 and was

protected under the NCT of Delhi Laws (Special Provisions) Act 2011 as

amended from time to time as no record from the department of House Tax

was ever called for the purpose of verification of construction existing in the

property in question. The inspection of site was also not carried out by the

AE (B).

16. It is also alleged that demolition orders were not in consonance with

Section 343 of DMC Act as they do not describe the details of unauthorized

construction, the date on extent of unauthorized construction. The

impugned sealing orders were assailed on the grounds that action under

section 345 A could be taken only if conditions mentioned under section

343 and 344 existed. It is also alleged that although there is no provision

for show cause notice to be given before action is taken under section 345

A of the Act but principles of natural justice require that a show cause

notice has to be issued of however small duration, before action taken

under section 345 A of the Act. It is further that the respondent did not

follow the mandatory provisions of Act and the principles of natural justice

as such the impugned orders are liable to be set aside.

Appeal no. 177/12, 176/12, 112/12, 536/11 & 111/12 Page 9

17. It is also contended that appellants are owners of properties in question

having purchased the same for valuable consideration. The appellants are

the persons at whose instance construction and repairs have been carried

out in the property in question as such they were entitled to show cause

notice and an opportunity of hearing. The appellants were, however,

neither served with show cause notice neither any opportunity of hearing

was given to them before passing of the impugned orders.

18. As regards the service of notice under section 343 of the DMC Act,

reliance is placed on “Krishan Gopal Vs MCD” 1972 ILR DEL 272 in which

Hon’ble High Court of Delhi has held:-

HELD, that S.444(2) cannot be made applicable to S.343 by impliedly

holding that the person at whose instance the construction is made must

be either the owner or occupier.

HELD therefore, that Section 444(2) is a very drastic provision because it

states that a document which is so addressed may be served by delivery to

any person who may be on the land or building. This seems to be at

variance with the rest of the provisions of Section 444, which contain

provisions for the service of the person intended to be served personally,

unless he cannot be found.

HELD, that it is the person concerned with the erection who has to be

served and that person is the person at whose instance the erection or

work has been commenced. If such a person cannot be identified then

Appeal no. 177/12, 176/12, 112/12, 536/11 & 111/12 Page 10

every person at whose instance the work of erection may have been

commended has got to be served. This necessity includes the owners of

the building.

19. Reliance is also placed on a decision of Hon’ble Supreme Court in case

titled Mahender Singh and Ors V/s MCD 34/1988 DLT 118 wherein it has

been held as under:-

“Held that it is not the case of Municipal Corporation of Delhi that the

officials of the Corporation could not have found out the names of other

owners of the buildings from their own record before sending a show cause

notice. Even in the proceedings recorded by the zonal Engineer, it is not

mentioned that new construction was being done at the instance of the

owners of the building, so in law it was required that the show cause notice

ought to have been issued in the name of owners of the building.

Moreover, the demolition order has been made in the name of the

petitioners who are the owners of the building and a show cause notice

also in law should have been served in the name of the owners of the

building. This is a mandatory requirement of law that no demolition order

should be made against a person unless and until a show cause notice has

been served on that very person.

Held further that the service 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 or not being caused when

Appeal no. 177/12, 176/12, 112/12, 536/11 & 111/12 Page 11

a mandatory provision has not been complied with. In case the zonal

Engineers was of the view that it was Khem Chand who had erected the

unauthorized construction, then the demolition order should have been

passed against Khem Chand, but that is not position here. The demolition

order admittedly had been passed against the petitioners and not against

Khem Chand. So, the law required that before passing the demolition

order against the petitioners show cause notice ought to have been issued

in their names and served on them. As it has not been done, it must be

held that 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.

20. Reliance is also placed on a decision of Hon’ble Supreme Court in case

titled DCM Vs. MCD & others reported as 73 (1998) DLT 227, whenever it

has been held as under :-

“The question under consideration before us is fully covered by the

decision of Supreme Court in G.Nageswara Rao v. A.P.S.R.TCorpn, 1959

SC 308 (para 31). This was a case of quasi judicial inquiry and the

Supreme Court clearly laid down that the decision has to be given by the

same officer who heard the party concerned. In our view in quasi judicial

inquiry this is no answer that the order has been passed in accordance

with the material on record specially when oral hearing is envisaged and

has in fact been given to the party. The importance or oral hearing cannot

Appeal no. 177/12, 176/12, 112/12, 536/11 & 111/12 Page 12

be nullified by saying that the authority has considered all the submissions

contained in the written arguments., Oral hearing generates discussion

and lead to clarification of doubt, if any, which the authority while has to

decide might be having in its mind. The importance of benefit of a healthy

discussion can never be ever emphasized. It is a basic tenet of law by

which were are governed. If what has been urged on behalf of the

respondent was to be accepted, it would be as good as saying that no oral

hearing is required in judicial or quasi judicial matter

For all these reasons the impugned assessment order dated 11th August,

1997 passed by the Joint Assessor and Collector, Municipal Corporation of

Delhi is hereby set aside and the matter is remanded back to the

concerned authority for fresh assessment in accordance with law.

21. It is further alleged by Ld. counsel for appellants came to know of the

impugned demolition order on 02.11.2011 when officials of BSES

Rajdhani Power Limited handed over a copy of letter dated 19.10.2011in

which the respective file nos. were mentioned. The appeal was, therefore,

filed on 04.11.2019 in respect of all demolition orders passed in files of

respondent. It is also contended that property was sealed on 08.11.2011.

22. It is alleged that as appellants were neither served with show cause notice

nor afforded an opportunity of hearing as such the period of limitation shall

Appeal no. 177/12, 176/12, 112/12, 536/11 & 111/12 Page 13

commence from the date of knowledge of order i.e. 02.11.2011. The

appeal is thus whether the period of limitation.

23. It is alleged that as regards the condonation of delay in filing of appeal, it

has been held by Hon’ble High Court in case titled Umroo Singh V/s MCD

1996 DLT 671 as under:-

“It is necessary that the notice of demolition under section n 343 of the

DMC Act should be shown to have been delivered to the person who had

made the construction on a particular date, and that only then their

limitation would start to run for the purposes of the appeal, demolition of a

building on the part of a building is a serious matter and entails a good deal

of loss to the person who had made construction. The legislature in its

wisdom provides he notice of demolition must be delivered to that person

and cannot merely be served in the way other notices are served under

section 444 of the Act.”

24. On merits it was contended by Ld. Counsel for appellants that the

impugned demolition orders were neither served on appellants nor were

they afforded an opportunity of personal hearing. It is alleged that the FIR

shows that it was got registered on the basis of the complaint. It is further

alleged show cause notice dated 18.08.2010 has been issued in the name

of Rajesh Gupta and the same was served by pasting on 18.08.2010. The

notice has not been served in accordance with law. Demolition order dated

Appeal no. 177/12, 176/12, 112/12, 536/11 & 111/12 Page 14

25.08.2010 was issued in pursuance to Show Cause Notice and has been

served by pasting on 26.08.2010.

25. Ld. Counsel of appellants further contended that the construction in the

property in question exists since is prior to cut off date i.e. 08.02.2007, as

such it is entitled for protection from any coercive action under NCT of

Delhi Laws (Special Provisions) Act , 2011, as amended from time to time.

26. It is also contended by Ld. Counsels of the appellants that the persons at

whose instance construction/repairs have been carried out in the property

in question and they were thus entitled for Show Cause Notice, opportunity

of being heard personally before passing the alleged demolition orders, as

is provided u/s 343(1) of DMC Act, Respondent, however, failed to comply

with the mandatory requirement, as is provided u/s. 343(1) of the Act.

27. Ld. counsel for appellant further alleged that in File No. File No.

18/B/UC//CZ/EE-II/CZ/10 dt. 01.12.2010 the FIR was got registered on

complaint. Show Cause Notice dt. 01.12.2010 issued in the name of

Rajesh Gupta which is alleged to have been served by way of pasting.

Demolition Order dt. 08.12.2010 has also been alleged to have been

served by way of pasting on 09.12.2010.

Appeal no. 177/12, 176/12, 112/12, 536/11 & 111/12 Page 15

28. It is also alleged that as regards file No. 90/B/unauthorised

construction/EE/II dated 08.09.2011 , the show cause notice was served

by pasting, the demolition order darted 16.09.2011 was also served by

pasting.

29. It is further contended by Ld. counsel for appellant that in respect of file

No. 91/B/UC/EE-II/CZ/11 dt. 08.09.2011 shows that Show Cause Notice dt.

23.09.2011 has been issued in the name of Shri Hanif Malik who has no

concern with the property except the fact that he is the husband of

appellant No. 3. Show Cause Notice has been alleged to have been

served by way of pasting on 23.09.2011.

30. As regards, maintainability of consolidated appeal challenging various

Notices/Orders passed by Corporation against various portions of the

same property, it is argued by Ld. Counsel for appellants that there is no

provision under DMC Act which requires that separate Appeals have to be

filed against separate demolition Orders pasted by respondent from time to

time, in respect of same property. It is further argued that all the orders are

in continuation of earlier orders and the same stands merged in the last

order. It is further contended that Section 343(2) provides that any person

aggrieved by the order of the Commissioner may prefer an Appeal before

Appellate Tribunal. Even in DMC Appellate Tribunal (Procedure) Rules,

1986. There is no provision that Composite Appeal, cannot be filed. The

Appeal no. 177/12, 176/12, 112/12, 536/11 & 111/12 Page 16

above provision only requires contents of the order of Notice appealed

against, has to be set forth precisely.

31. It is further submitted that issue of filing Composite Appeal u/S. 169 & 170

of DMC Act against Assessment Order passed by respondent, relating to

house tax, came up for hearing before Hon’ble High Court of Delhi in Writ

Petition (Civil) No. 1305/2014 and 4440/2014 titled “Urban Development

Corporation Ltd. Vs. SDMC” decided on 04.02.2015 wherein it was held as

under:-

“It is well settled that the manner in which appeals are filed is a procedural

matter; since the Tribunal was of the view that separate appeals needs be

filed for each assessment year, the said condition would be satisfied if

separate court fee is paid and separate numbers are assigned to appeals

in respect of different assessment years, albeit, on the paper book of the

consolidated appeal.

In view of the aforesaid circumstances, without expressing any opinion on

the merits of the controversy, the present petitions are disposed of with a

direction that the petitioner would pay the requisite court fee in respect of

each Tribunal shall assign separate appeal numbers for appeals in respect

of each assessment year and the consolidated appeal filed shall,

accordingly, carry multiple numbers. The appeals shall be heard on the

basis of the consolidated appeal treating the same as nine separate

appeals. Pending application also stands disposed off”.

Appeal no. 177/12, 176/12, 112/12, 536/11 & 111/12 Page 17

32. Ld. counsel of appellant further alleged Appeal No. 111/ATMCD/2012

which has been filed against the order of sealing dt. 03.11.2011 in respect

of Third Floor and part of 4th floor of the property bearing No.TA-103. The

entire property consisting of Basement, Ground Floor, First Floor, Second

Floor, Second Floor, Third Floor and part of Fourth Floor was sealed on

08.11.2011. It is alleged that neither any Show Cause Notice nor any Order

of Sealing was served on the appellant.

33. Ld. counsel for appellant also submitted that Appeal No.

112/ATMCD/2012 has been filed against the Order of Sealing dt.

03.11.2011 in respect of property bearing No. TA-102, appellant was not

aware of the order even through the property was sealed on 03.11.2011. It

is stated that copy of Order of Sealing was supplied on 13.03.2012.

Appellant was not aware of the order though the property was sealed on

03.11.2011. Hence, Appeal was filed on 14.03.2012 alongwith Application

for Condonation of Delay.

34. Ld. counsel for appellant further alleged that first Sealing Order dt.

28.12.2010 was passed by Shri Deepak Hastir, Dy. Commissioner (Central

Zone) in respect of unauthorized construction of basement and Ground

Floor and further unauthorised constructions of First Floor vide File No.

2622/B/Seal It is stated that the alleged Show Cause Notice was issued in

Appeal no. 177/12, 176/12, 112/12, 536/11 & 111/12 Page 18

file no. D-17/EE(B)-II/CZ/10 dt. 15.12.2010 in the name of Rajesh Gupta

owner/Builder. There is no report as to how and in what manner Show

Cause Notice has been served and on what basis Sealing Order dated

28.12.2010 has been passed. The Deputy Commissioner passed the

impugned order in a mechanical manner. The basement, Ground Floor and

First Floor was sealed on 08.11.2011, was per report of JE in another

sealing file at page 4/N. Thus, this order stands merged in order dated

03.11.11 which was executed on 08.11.2011.

35. Ld. counsel for appellant also alleged that second sealing order was

passed in another File No. 2775/B/Seal dt. 03.11.2011/08.11.2011 in

respect of “Unauthorized construction (File No. 426/V/UUC/CZ/2010 dt.

18.08.2010), 18/B/UC/CZ/EE-II/2010 dt. 01.12.2010 and 90/B/UC/CZ/EE-

II/2011 dt. 08.09.11, unauthorized constructions at Third Floor and

unauthorized construction at part of 4th Floor” alleged to have been passed

on 03.11.2011 was executed on 08.11.2011. It is also alleged that the

show cause notice dt. 19.10.2011 vide File No. D/360/DC/EE (B)

II/CNZ/19.10.2011 shows that Show Cause Notice is alleged to have been

issued in the name of Hanif Malik who has no concern with the property.

Moreover there is no cogent evidence of service of show cause notice.

36. Ld.counsel for appellant further contented that show cause notice has to

be served/issued before passing any order of sealing or demolition,

Appeal no. 177/12, 176/12, 112/12, 536/11 & 111/12 Page 19

complete description of the property has to be mentioned in the order. It is

contended the impugned orders were passed in the present case without

complying with mandatory provisions of law. In support of the said

submission reliance has been placed on the decision in Asian Hotels Ltd.

Vs. U.O.I” Municipal Corporation Cases 1993 Page 289; “T.M. Apartment

Pvt. Ltd. & Anr. Vs. DDA & Another” 41 (1990) DLT 139, “Ahuja Property

Developers (P) Ltd. Vs. MCD” 42 (1990 ) DLT 474, “Goodwill India Food

Limited Vs. NDMC”, “Ms. Surinderjit & others Vs. DDA” AIR 1993 DEL

130,”

37. Ld. counsel for appellant further contended that .Appeal No.

176/ATMCD/2012 has been filed against Rejection of Regularization in

respect of property No. TA-103. Appeal No. 177/ATMCD/2012 has been

filed against Rejection of Regularization in respect of property No. TA-102.

It is contended that regularization plan had been submitted, however, the

same was rejected on the ground that structure need to be rectified to bring

the same within permissible norms as per the policy. It is further stated

that an order had been passed for rectification, but the property was not

de-sealed in view of the action initiated by CBI in respect of the property in

question. Tribunal passed Order on 11.03.2016 adjourning the Appeals

sine die with liberty to appellant to seek revival of the same after filing of

Closure Report by CBI or any Court of Law.

Appeal no. 177/12, 176/12, 112/12, 536/11 & 111/12 Page 20

38. It is further alleged CBI submitted its Closure Report and the same was

accepted by Shri Pulastya Pramachala, Ld. Special Judge, P.C. Act, CBI,

Karkardooma Courts, East District, Delhi vide Order dated 07.06.2017.

Accordingly, Application under Rule 17 of DMC Appellate Tribunal

(Procedure) Rules, 1986 was filed seeking revival of the Appeals and the

same was allowed and all the Appeals were revived.

39. It is further argued by Ld.counsel for appellants that the proceedings in

respect of demolition and sealing are bad in law and are liable to be

quashed/set aside. The regularization application if moved by appellants

be considered during the course of proceedings before Quasi Judicial

Authority.

40. It is also alleged that so far as the question of giving protection under the

Statute from any coercive action against the property in question under

NCT of Delhi Laws Special Provisions Act 2011 as amended from time to

time, the same is to be adjudicated upon by respondent while deciding the

proceeding u/s. 343(1) and 345-A of the DMC Act.

41. I have heard the Ld. Counsel for appellants and respondent and perused

the record.

Appeal no. 177/12, 176/12, 112/12, 536/11 & 111/12 Page 21

42. Ld. Counsel for appellants contended that delay in filing of appeals was

due to the fact that appellants were neither served with Show Cause Notice

nor granted opportunity of hearing before impugned orders were passed.

The appellants came to know of the impugned demolition orders on

02.11.2011 when officials of BSES Rajdhani Power Ltd. visited their

property on 02.11.2011 and handed over copy of letter dated 19.10.2011

showing passing of demolition orders. The appeals were thereafter filed on

04.11.2011.

43. The averments made in the applications for condonation of delay are

supported with an affidavit of the appellant that appellants were never

served with show cause notices of demolition or sealing. In view of the

submissions made, in my view the appellant have shown sufficient cause

for condonation of delay. As regards the sufficient cause in Section 5 of the

Limitation Act, it has been held by Hon’ble Supreme Court in case titled

CJ Ramagwada V/s Special Land Acquisition Officer that the expression

sufficient clause is to be given liberal consideration to advance the cause

of justice. The application of condonation of delay is accordingly allowed.

44. It is also contended by Ld Counsel for appellants that the impugned orders

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

principles of natural justice. It is also stated that the impugned order of

demolition lack in material particulars as neither the details nor

Appeal no. 177/12, 176/12, 112/12, 536/11 & 111/12 Page 22

measurement nor extent of alleged unauthorized constructions have been

given. The sketch of unauthorized construction was also not prepared.

45. On the other hand the Ld Counsel for respondent submitted that statutory

provisions have been complied with. It is 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 exists.

46. It is also submitted by Ld. counsel for appellants that unauthorized

construction did not warrant demolition as it is compoundable. It is also

alleged that demolition should be the last resort only in case the

construction cannot be regularized or compounded.

47. 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.

Appeal no. 177/12, 176/12, 112/12, 536/11 & 111/12 Page 23

48. It is 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 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.

49. 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 alone the impugned

demolition order and the appellate order are liable to be set aside”.

Appeal no. 177/12, 176/12, 112/12, 536/11 & 111/12 Page 24

50. It is to be noted that Show Cause Notice u/s 344 (1) 343 dated

01.12.2010 was served by pasting the names and addresses of witnesses

are not mentioned. The demolition order dated 08.12.2010 was served by

pasting but again the names and addresses of witnesses are not

mentioned. The Show Cause Notice dated 10.08.2010 was also served by

pasting. It is simply stated pasted in the presence of MCD staff / JE,

Kushwant Kumar and Idris, the addresses of witnesses are not mentioned.

The order of demolition dated 25.08.2010 was also pasted in the presence

of MCD staff (JE) Meena and Shahdab Alam. It is further to be noted that

show cause notice dated 08.09.2011 and demolition order dated

10.09.2011 were pasted in the presence of MCD staff designation of one of

them is not mentioned. Show cause notice dated 23.09.2011 and

demolition order dated 28.09.2011 were also pasted in the presence of

MCD staff, the designation of one witness is not mentioned.

It is further to be noted that as per the reports the concerned official went to

the site but as the owner/builder did not receive the notices and were not

available as such it was pasted. The report does not show who was found

present at the site and who refused to accept the notice. The endorsement

on notice, states that it was pasted in the presence of 2 witnesses but no

explanation has been given as to why pasting was resorted to and why

efforts were not made to serve the appellants by speed post/registered

post, service by pasting can be resorted to as lost resort, in case it

Appeal no. 177/12, 176/12, 112/12, 536/11 & 111/12 Page 25

becomes impossible to serve the notice by other modes. It is to be noted it

has been held by Hon’ble High Court in Umrao Singh Vs. MCD 1966 DLT

471 that demolition of a building is a serious matter and entails great deal

of loss to the owner occupier. Thus legislature in its wisdom provided that

notice of demolition must be served to the person concerned and not

merely served under section 444 of the Act. In this case in my view no

genuine efforts were made to serve the show cause notice on appellants.

The appellants were thus not afforded an opportunity of being heard before

impugned orders of demolition were passed. It is further to be noticed that

similarly there is no proof of service of show cause notice under section

345 A of the Act as copy of internet delivery reports have not been filed.

51. It is to be noted that MCD had under an office order No.31/Addl./Commr./

Engg./10 dated 15.04.2010 passed directions with reference to service of

show cause notices which is as under :-

“It is observed that service of show cause notice upon owner is found

unsatisfactory and unreliable and, as such, most of the appeals, filed

against the demolition orders, are allowed by the courts for lack of service

of show cause notice upon owner. It has, therefore, been decided that

pasting of notice should be supported by photographic evidence. The JE

concerned will ensure the photographic evidence of pasting of notice and

such evidence will form part of U/C and sealing files. EE(B) of respective

Appeal no. 177/12, 176/12, 112/12, 536/11 & 111/12 Page 26

zone shall ensure the uploading of information regarding unauthorized

construction on MCD website soon after the passing of the necessary

orders for demolition.”

Another circular of MCD dated 06.12.2016 issued by Chief Law Officer

SDMC provides as under:-

“It has been observed that the Executive Engineers of SDMC are passing

demolition order/sealing order without verifying the service of show cause

notice. The Appellate Tribunal has also observed that this is very careless

attitude or some deliberate act to give benefit to the property owner as they

knew very well that case will not stand to the scrutiny of the Court on this

ground alone. Therefore, the Quasi Judicial Authority should ensure that

service has been done properly before passing any order under DMC Act.

Further the service, as far as possible should be done by way of speed

post and a copy of internet delivery report with postal receipt should be

kept on record and where service is not possible and pasting is to be done,

photograph of pasting be taken and signatures of witness be obtained with

their name and address.

In number of cases, the service of show cause notice of demolition or

sealing is done by way of pasting or speed post, but necessary proof with

regard to its service by pasting and signatures of two witnesses is not

taken by the department. In case of service by speed post, the tracking

report showing the service of the same upon the owner/builder is not

Appeal no. 177/12, 176/12, 112/12, 536/11 & 111/12 Page 27

placed in the u/c file, with the result the stay order are passed and finally

appeals are allowed.

All concerned are hereby requested to kindly take note of the aforesaid

orders and to ensure the compliance of such orders.

52. It is the case of appellant that there is no unauthorized construction being

raised. Under the said circumstances it was incumbent upon the

respondent to have mentioned in the notice as to what was exactly

unauthorized construction / deviation / excess coverage which had been

carried out by the appellants to enable them to raise objection or give

explanation. The notices are however conspicuously silent in this regard.

Thus, I find force in the contentions of Ld. counsel for appellants that the

notices are vague in as much as they do not give the details of the

unauthorized construction.

53. The sealing orders were challenged on the ground that principles of

natural justice were not followed as the show because notice were served

whether opportunity of hearing was afforded. Provision of section 345 A of

the Act came up for consideration before Hon’ble High Court in case titled

Ahuja property developers Private Limited V/s MCD 1990 DlT 474 and it

was hled that as sealing of property may affect the civil rights thus,

principles of natural justice would be read with section 345 A which require

Appeal no. 177/12, 176/12, 112/12, 536/11 & 111/12 Page 28

show cause notice to be issued of however, small time may be before

action is taken under section 345 A of the DMC Act.

54. In 2001 AD Delhi 911 Masonic Club V/s MCD and Another , it was held

that notice was not properly served there was no specific mention as to the

unauthorised construction area of unauthorised construction and date of

the construction. The notice was thus no action in the eyes of law and

since premises were sealed without giving any opportunity to appellant it

was directed to be desealed with direction to respondent to give notice in

accordance with law.

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

speaking which is in contravention of the statute and thus unsustainable.

The impugned demolition order does not give any reason 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. In this regard, it has been held by Hon’ble

Supreme Court in Erusia Equipment and Chemicals Ltd v/s State of W.B

AIR 1975 SC 226 that orders which are subject to judicial review must be

in compliance with the principles of natural justice, namely, (a) proper

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

Appeal no. 177/12, 176/12, 112/12, 536/11 & 111/12 Page 29

relevant factors and excluding the irrelevant factors; and (d) reason to be

recorded.”

56. Thus before action can be taken by authorities for sealing under Section

345-A of the Act, the principles of natural justice are required to be followed

and show cause notice is to be issued to the persons effected

57. Thus in my view the entire proceedings initiated by issuance of show

cause notices which culminated in the order of demolition and sealing were

vitiated as mandatory provisions of the Act and principles of natural justice

were not complied with.

58. For the foregoing reasons, the impugned demolition and sealing orders

are set aside and the appeals assailing the said orders are allowed.

Resultantly, the appeals against rejection of regularization are also

allowed. The respondent to consider application for regularization if moved

by appellant. The appeals are remanded back to the quasi judicial

authority for fresh decision within two months. The appellants are directed

to maintain the status quo with regard to the construction, title and

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

construction and they shall also not assign, part with possession or create

third party interest in the said property. As the property in question was

sealed without affording an opportunity to appellants it is liable to be de-

Appeal no. 177/12, 176/12, 112/12, 536/11 & 111/12 Page 30

sealed. The respondent is directed to deseal it within 2 weeks of the date

of this order.

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

copy of this order. Attested copy of the order be placed in appeal file No.

176/16, 112/12, 536/11, 111/12. Files be consigned to record room.

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

Appellate Tribunal : MCD 29.11.2019