Mahinder Singh And Ors. vs Municipal Corporation Of Delhi
1987 Latest Caselaw 547 Del

JUDGMENT

P.K. Bahri, J.

(1) The petitioners have prayed for issuance of a writ of certiorari for quashing the judgment dated April 26, 1979, passed by Shri D.C. Aggarwal, Additional District Judge, as appellate authority under the Delhi Municipal Corporation Act by which he dismissed the appeal against the demolition order dated November 27, 1978, passed by the Municipal Corporation of Delhi.

(2) Admitted facts leading to the filing of this writ petition, in brief, are that the petitioners are owners in possession of property No. 4, Bharat Nagar, Village Khizrabad, New Delhi, which is stated to be part of Khasra No. 13/23. It was the case of the petitioners that they had raised the building somewhere in the year 1947-48 and the respondent could not now demolish on the ground that the building was unauthorisedly constructed in view of Section 195 of the Punjab Municipal Act which was then applicable in Delhi, as no proceedings for demolition took place within six months of completion of the said building. It was averred that a ( show cause notice under Section 343 of the Delhi Municipal Corporation Act (for short 'the Act') prior to the passing of the demolition order in question was issued by the Municipal Corporation of Delhi in the name of Shi Khem Chand, father of the petitioners, in respect of two rooms and a well as depicted in sketch drawn on the said show cause notice. This notice was actually delivered to Rajinder Singh, one of the petitioners. Khem Chand had admittedly sent a reply mentioning that he has nothing to do with the building in question and no recent constructions have been made and only some repairs have been effected by the petitioners who are the real owners of the property in question and mutation already stands effected in the name of the petitioners showing them as owners in the record of the Municipal Corporation. Along with the reply to the show cause notice certain photo copies of the documents were filed showing that there had been certain tenants in this building and thus there had been erected no new construction. It appears from the record produced before me by the Municipal Corporation of Delhi that in the proceedings before the Corporation Shri Mohinder Singh, one of the petitioners, appeared on his behalf and also on behalf of other co-owners. The zonal Engineer recorded the proceedings in which he also narrated the facts pleaded by Shri Mohinder Singh. Mohinder Singh had denied that any new construction had been raised except that he admitted that Suresh Chand, tenant, had placed a few sheets adjoining his shop which he has removed and the fact may be verified at the site. He also mentioned that the rear wall to which objections had been raised has been also reduced to the height of 5"' which was the old height of the wall. These proceedings were recorded on November 15, 1978.

(3) It appears that at the back of the petitioners the Zonal Engineer concerned called for record pertaining to house-tax and after noticing that the 120 name of the tenant disclosed in the reply did not appear in the house-tax record, the Zonal Engineer gave a report that the two rooms are unauthorisedly constructed recently and so also the rear wall and the order of demolition was passed on November 24, 1978 by Shri Tirath Raj, Zonal Engineer (Building). I may mention that he had mentioned in the demolition order that a portion of the shop of Suresh Chand is old construction and only the extended portion of his shop is re::ent unauthorised construction besides another shop which is also unauthorised construction and they were depicted in a sketch on the demolition order. An appeal was filed against the demolition order by the petitioners. It may be pertinent to mention that show cause notice was issued in the name of Khem Chand while the demolition order has been made against the petitioners. During the pendency of the appeal the Additional District Judge had appointed a Local Commissioner who inspected the spot and at random had removed bricks from the disputed portions which were of the year 1977-78 and thus he gave the opinion that the said portions of the building in dispute were recently constructed. He also filed a plan prepared by him according to the existing position at the spot and earmarked the portions which were recently constructed and they tally with the sketch appearing on the demolition order. No objections were filed to the report of the Local Commissioner and after hearing arguments, the Additional District Judge dismissed the appeal.

(4) Mr, Budhiraja, counsel for the petitioners, has challenged the impugned orders on various grounds, firstly, that show cause notice had not been issued in the name of the petitioners who were admittedly the owners of the building in question and thus the demolition order passed against them is vitiated as mandatory provisions of Sections 343 & 344 requiring the show cause notice as pre-requisite for passing the demolition order had not been complied with. He has further argued that the proceedings before the Zonal Engineer, who passed the impugned order, suffered from lack of providing proper hearing to the petitioners inasmuch as proceedings have been carried on at the back of the petitioners and evidence which had been relied upon in the shape of the record of the house-tax was not collected in the presence of the petitioners and was not brought to the notice o) the petitioners before passing the demolition order and thus rules of natural justice have been violated vitiating the demolition order. Thirdly, it was argued that the Additional District Judge had not provided any opportunity to the petitioners for filing objections to the report of the Local Commissioner and so the order of the Additional District Judge is also vitiated as it has been passed in violation of rules of natural justice. Lastly, it was pleaded that the report of the Local Commissioner was not valid inasmuch as the Local Commissioner had no expert knowledge in determining whether a particular construction is old one or a recent one as he was only a stenographer in the court and so, no reliance could be placed on such a report. Sections 343 & 344 of the Act read as follows: "343. Order of demolition and stoppage of buildings and works in certain cases and appeal. (1) Where the erection of any building or execution of any work has been commenced, or is being carried on or has been completed without on contrary to the sanction referred to in section 336 or in contravention of any condition subject to which such sanction has been accorded or in contravention of any of the provisions of this Act or bye-laws made there under, the Commissioner may, in addition to any other action that may be 121 taken under this Act, make an order directing that such erection or work shall be demolished by the person at whose instance the erection or work has been commenced or is being carried on or has been completed, within such period, (not being less than five days and more than fifteen days from the date on which a copy of the order of demolition with a brief statement of the reasons therefore has been delivered to that person) as may be specified in the order of demolition : Provided that no order of demolition shall be made unless the person has been given by means of a notice served in such manner as the Commissioner, may think fit, a reasonable opportunity of showing cause why such order shall not be made : Provided further that where the erection or work has not been completed, the Commissioner may by the same order or by a separate order, whether made at the time of the issue of the notice under the first proviso or at any other time, direct the person to stop the erection or work until the expiry of the period within an appeal against the order of demolition, if made, may be preferred under sub-section (2), (2) Any person aggrieved by an order of the Commissioner made under sub-section (1) may prefer an appeal against the order to the court of the District Judge of Delhi within the period specified in the order for the demolition of the erection or work to which it relates. (3) Where an appeal is preferred under sub-section (2) against an order of demolition, the court of the district judge may stay the enforcement of that order on such terms, if any, and for such period, as it may think fit: . Provided that where the erection of any building or execution of any work has not been completed at the time of the making of the order of demolition, no order staying the enforcement of the order of demolition shall be made by the court of the district judge unless security, sufficient in the opinion of the court, has been given by the appellant for not proceeding with such erection or work pending the disposal of the appeal., (4) Save as provided in this section, no court shall entertain any suit, application or other proceeding for injunction or other relief against the Commissioner to restrain him from taking any action or making any order in pursuance of the provisions of this section. (5) Every order made by the court of the district judge on appeal and subject only to such order, the order of demolition made by the Commissioner shall be final and conclusive. (6) Where no appeal has been preferred against an order of demolition made by the Commissioner under sub-section (1) or where an order of demolition made by the Commissioner under that sub-section has been confirmed on appeal, whether with or without variation, the person against whom the order has been made shall comply with the order within the period specified therein, or as the case may be, within the period, if any, fixed by the court of the district judge on appeal and on the failure of the person to comply with the order within such period the Commissioner may himself cause the erection or the work to which the order relates to be demolished and the expenses of such demolition shall be recoverable from such person as an arrear of tax under this Act. 344 "Order of stoppage of building or works in certain cases. (1) Where the erection of any building or execution of any work has been commenced or is being carried on (hut has not been completed) without or contrary to the sanction referred to in section 336 or in contravention of any condition subject to which such sanction has been accorded or in contravention of any provisions of this Act or bye-laws made there under, the Commissioner may in addition to any other action that may be taken under this Act, by order require the person at whose instance the building or the work has been commenced or is being carried on, to stop the same forthwith. (2) If an order made by the Commissioner under section 343 or under sub-section (1) of this section directing any person to stop the erection or any building or execution of any work is not complied with, the Commissioner may require any police officer to remove such person and all his assistants and workmen from the premises within such time as may be specified in the requisition and such police officer shall comply with the requisition, accordingly. (3) After the requisition under sub-section (2) has been complied with, the Commissioner may, if he thinks fit, depute by a written order a police officer or a municipal officer or other municipal employee to watch the premises in order to ensure that the erection of the building or the execution of the work is not continued. (4) Where a police, officer or a municipal officer or other municipal employee has been deputed under sub-section (3) to watch the premises, the cost of such deputation shall be paid by the person at whose instance such erection or execution is being continued or to whom notice under sub-section (1) was given and shall be recoverable from such person as an arrear of tax under this Act."

(5) These sections came up for consideration in Krishan Gopal v. Municipal Corporation of Delhi, 2nd (1972) I Delhi 272. It was held by D.K. Kapur, J. 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, and if such a person cannot be identified then every person at whose instance the work or erection may have been commenced has got to be served, and this necessarily includes the owners of the building. It is not the case of the Municipal Corporation of Delhi that the officials of the Corporation could not have found out the names of the 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 123 not 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 the 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. In Nahar Singh v. Municipal Corporation of Delhi, 1973 M.C.C. 281, the facts, in brief, were that a show cause notice in the name of Prem Chand has been allegedly served on Nahar Singh. Nahar Singh was the owner of the property. It was held that no proper show cause notice in accordance with law stands served on the person concerned. Hence, the civil court had the jurisdiction to hold that the act of the Corporation was void ab initio. It was also emphasized in this judgment that before passing a demolition order against a person the show cause notice has to be served in the name of that person. Counsel for the petitioners also cited Umrao Singh v. Municipal Corporation of Delhi, 1966(2) Dlt 471. This judgment is not applicable to the facts of the present case. In the cited case a demolition order was not personally served 'on the person concerned and it was held that in order to enable the person concerned to file an appeal within time the demolition order had to be delivered to the person concerned and not to anyone else. This observation has been made in order to show that the limitation period should not be allowed to run out on the hypothesis that the demolition order had been delivered to some relation of the person concerned. That is not the case here.

(6) However, counsel for the respondent has vehemently argued that no prejudice has been caused to the petitioners for want of service of show cause notice in their names inasmuch as it was one of the petitioners who had actually received the show cause notice although it was issued in the name of his father, Sh. Khem Chand and it was one of the petitioners who participated in the proceedings before the Zonal Engineer and so, the show cause notice is a valid one. I am afraid that this contention cannot be accepted. The service of the show cause notice on the person concerned before passing the demolition order is madatory. There is no question of any prejudice being caused or being caused or not being caused when a mandatory provision has not been complied with. In case the Zonal Engineer was of the view that it was Khem Chand who had erected the unauthorised construction, then the demolition order should have been passed against Khem Chand, but that is not the 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 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.

(7) It is not necessary to deal with the other points raised by the petitioners. The Municipal Corporation of Delhi can serve fresh show cause notice on the petitioners, if permissible under law, and then after following necessary procedure can pass the necessary orders. I allow the writ petition, make the rule absolute and quash the impugned orders. However, in view of the peculiar facts of the case, I leave the parties to bear their own costs.