Neelam Anand And Ors. vs Municipal Corporation Of Delhi
1991 Latest Caselaw 455 Del

JUDGMENT

Santosh Duggal, J.

(1) This revision petition is directed against an order passed by the Additional District Judge, Delhi in M.C.A. No. 63 of 1989 on 7th March, 1989 whereby the appeal was dismissed against 'the order dated 17th February, 1989, in so far as the alleged threatened action of the respondent Corporation in respect to sealing of property No. 2846-48, Partap Market, Sadar Bazar, Delhi was concerned. When this revision petition was filed, it was asserted, inter alia, that the property against which the action was threatened is an old construction and that it existed for years so much so that vide survey report dated 23rd November, 1983 it was recorded that this property consisted of one shop on the ground floor, one shop on the first floor, one shop on the second floor and one shop on .third floor. It was on this assertion that it was contended that the proposed action of the Corporation in sealing the property and thereafter proceeding with demolition was unauthorised, and in any case without notice to show cause and opportunity to the petitioner to show cause against the proposed action, it cannot be sustained.

(2) The trial judge granted the prayer of the petitiorer, (plaintiff in the suit), in respect to the action of demolition, but declined to grant any interim of temporary relief in respect to the sealing of the offending portion of the property

(3) In the appeal-filed before the Additional District Judge, the plea taken was that even the sealing action could not be taken without serving a show cause notice on the owner (petitioner In the case). This argument was, however, not accepted by the first appellate Court on the view that the provisions of Section 345A(1) of the Delhi Municipal Corporation Act did not contemplate service of a notice for scaling of the property, and further relying on the judgment of this Court reported as 1988 D.L.T. 304, Anand Sarup v Municipal Corporation of Delhi, held that issuance of show cause notice before sealing of the premises was not mandatory. The appeal was accordingly dismissed.

(4) While filing the revision petition against the dismissal of the appeal, the petitioner reiterated that the structure was old and existing one, and had been there for years, which fact was supported, according to them, by survey report conducted by the officers of the respondent Corporation. A copy of the survey report was also annexed.

(5) It was on the strength of this copy of the survey report that on the first date of bearing of the revision petition, an interim order was issued against the respondents on the application of the petitioners, bearing C.M. No. 891/89, restraining them from sealing the property bearing No. 2846-48, Partap Market, Sadar Bazar, Delhi.

(6) In a detailed report filed by the respondent, it has been stated that the copy of the survey report filed by the petitioner with the petition was a forged document and that the entries contained in the original record show the existence of only one shop measuring 10' x 8' and one other shop with unspecified measurements and from the heading of the columns, it appears that both the shops are on the ground floor. The survey report is of the date namely, 23rd November, 1983. It is apparent to the naked eyes on a reference to this copy filed with the revision petition, that thare is an over writing on the official stamp starting from:

"F.F.One shop 20x12 S.P. One shop 20x12 3rd P. One shop 20x12"

There is also no entry against the name of Bashesher Dayal showing one shop as on P.P. in the original record. A copy of this report from the original in possession of the respondent was filed as Annexure R-1 with the reply.

(7) When the matter was taken up in Court and Mr. Sabharwal pointed out this patent discrepancy, Mr. S.D. Ansari, counsel for the petitioner, was present and was supplied copy of the replies and the report Ex. R-1. When the matter was taken up on 17th May, 1991, it was directed specifically that he shall file rejoinder to this by 24th May, 1991 and also produce the petitioner in Court with certified copy of the survey report from which he had filed the copy with the revision petition. No rejoinder has been filed as directed. The matter has been on board of this Court with name of Mr. S.D. Ansari, Advocate shown in the cause list before vacations and since yesterday after vacations. Mr. Ansari has not turned up.

(8) Mr. Sabharwal has produced for perusal of the Court the original record and I am satisfied that the copy filed by the respondent as Annexure R-1 is a true copy of the original record and the conclusion is inescapable that the entire portion in the copy of the survey report filed by the petitioner with the petition starting from P.P. to the end is forged.

(9) In face of the original record which has been perused by me, and in face of the failure of the petitioner to file a rejoinder and turn up in Court to produce the certified copy from which the copy of the survey report in Court was filed, I find it a fit case to bold that the petitioners have filed this revision petition prima facie on a false and forged document and the inference cannot be escaped, though the order does not indicate, that the interim order against the foaling action was issued because of this copy of the survey report annexed with the revision petition.

(10) I, therefore, think it to be a fit case where not only the application for stay (C.M. 891/89) but the revision petition is dismissed on facts because of the conduct of the petitioners in obtaining orders of the Court on the strength of a forged document.

(11) I may also add that even on point of law the order passed by the appellate Court does not call for any interference.

(12) The revision petition is accordingly dismissed and the interim order dated March, 16, 1989 is vacated with the result that the respondent Corporation shall be entitled to proceed against the unauthorised construction as per procedure established by law,

(13) In view of the fact that the revision petition has been dismissed on a prima facie case on failure of the petitioner to contradict the contentions of the respondent taken up in the reply filed as supported by Annexure R-1, and that the suit is pending in the trial Court where both the parties may rely on and prove the survey report, it is left open to the respondent after the report has been duly proved, and in case it is found that the petitioners have persisted in continuing with the suit on the strength of other copy of the survey report, corresponding to the copy filed in the revision petition at page 36, to move the trial Court move for proceedings under Section 340 Cr.P.C.,and the said Court shall be free to proceed in the light of the evidence produced on record.

(14) The application be filed for the time being. Original record seen and returned.