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.
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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.
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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
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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
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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.
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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 /
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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,
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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.
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(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.
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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.
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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
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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.
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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.
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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.
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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.
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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
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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.
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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.
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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.
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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
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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-
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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
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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
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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
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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
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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.”
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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.
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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.
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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
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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