Brij Bans Bahadur vs New Delhi Municipal Committee And ...
1992 Latest Caselaw 52 Del

JUDGMENT

S.B. Wad, J.

(1) Large scale illegal constructions both residential and commercial has become a major civic problem in Delhi. Innumerable cases have been coming to the Court where it is seen that illegal constructions are made with impunity, many times with the connivance of the officers of the civilauthorities. The Courts are faced with fait accompli of huge illegal constructions which it is difficult to demolish at a subsequent stage. In some cases the Courts have given directions to the administration to fix responsibility on the officers who are responsible for permitting the illegal constructions in theirareas. The evil has reached such a dimension that the Bench of this Court was required to appoint a high-power Committee consisting of the Chiefs of the local authorities in Delhi for urgent action in this matter. Time and again thelocal authorities make a show as if they are serious and seal some premises or demolish some.

(2) The present case represents the open flouting of all laws and building bye-laws by a tenant who, without the authorisation by the landlord and without the sanction plan from the Municipal Authorities has carried out massive construction inside the tenanted premises. The tenanted premises are located at 46, Janpath, New Delhi, where respondents 4 to 9 are running a restaurant.The construction with structural changes was made under the pretext of restoration of the premises after the fire broke out in the premises in 1987. Ironically enough, the new construction is carried out without the sanction and clearance of the authorities under the Delhi Fire Prevention and Fire SafetyAct, 1986.

(3) The illegal construction with structural changes is as follows : "A full mezzanine floor is constructed, doubling the usable space in the said restaurant. The original mezzanine floor which was a wooden structure on half of the area has been doubled with a puce floor supported by huge pillars, decorated by marble. The height of the mezzanine floor has been raised to about 10 ft. and converted into a regular first floor by lowering the ground floor by over 60cms. A new stair-case with increased breadth and length and with marble slabs has been constructed. Boundary wall in the rear courtyard has been raised by approximately 4 ft. A new latrine and urinal has been constructed in the restaurant. So also cemented racks havebeen constructed in the backyard for storage of utensils etc. Certain sheds have also been put up in the backyard."

(4) Most of these illegal constructions are confirmed in the report ofthe Commissioner appointed by this Court and by the Chief Architect of theNDMC. The said background note refers to the plan submitted by respondents 4 to 9 for construction of puce mezzanine floor. The area chart given by the said respondents showed that the original mezzanine floor was 38.06 sq.mtrs. The proposed addition to the mezzanine floor was 145.61 sq. mtrs , making the mezzanine floor of 183.61 sq. mtrs. The information supplied along with the said plan by respondents 4 to 9 is thus a clear admission of the large scale puce mezzanine floor constructed by the respondents. The agenda note (R-1)has laid down some other conditions for the construction, which will be adverted to afterwards. However, it may be noted that the background agenda note expressly pointed out that the Plan Committee resolved to grant approval,subject to: . 1.The corrections in the Plan.2. The party submitting complete ownership documents, .lease plan and power of attorney in the name of the person -who has signed the plans.3 The party depositing Rs. 3,49,025.00 as compounding charges.

(5) In the letter dated 10.12.1987 the Chief Architect of the Ndmc informed the respondents:    "YOU are advised not to start the construction work at site without getting the Plan released, otherwise the construction so carried out shall be reckoned as unauthorised and action as per law will betaken."  

(6) A reminder was sent on 15.3.1988 by the Chief Architect, directing the respondents to comply with the letter dated 10.12.1987 within 10 days,"failing which the conditional sanction granted by the Committee shall be deemed to have been removed."   

(7) By their communications dated 11.1.1988 (Annexure A), 12.3.1988 (Annexure B), 28.3.1988 (Annexure C), and 29.3.1988 (Annexure D), the petitioner informed the Ndmc and the Delhi Administration of the illegal construction being carried out by the respondents and called upon them. to take immediate action. The petitioner also informed the Cbi by his letter dated6.4.1988 of the failure of the Ndmc to take timely action to stop the illegalconstruction. Thereafter, the Ndmc issued a show cause notice to the respondents for demolition. Although the Ndmc had the plans of the respondents for the puce construction of the mezzanine floor measuring 183.61 sq. mtrs.in place of the existing 38'06 sq. mtrs. wooden mezzanine floor and the provisional sanction plan sanctioned on the basis of the plans submitted by therespondents, the demolition notice, strangely enough, omitted to include the massive puce construction of the mezzanine floor and other illegal constructions. But no action was taken to demolish the illegal constructions. The petitioner again reminded the Ndmc on 15.4.1988. Thereafter, a second show cause notice was issued by the Ndmc on 18.4.1988, again omitting the major structural changes and the constructions made by the respondents. Since no action was taken by the Ndmc even on the second show cause notice the petitioner was constrained to file the present writ petition. The petitioner'ssubmission is that the Ndmc allowed the time to lapse by their inaction and thereby permitting the respondents to almost complete the illegal construction by the time the writ petition was filed.

(8) In the writ petition the petitioner prayed for a mandamus, directingthe Ndmc to demolish the illegal construction and also prayed through an application directing the Ndmc to seal the premises. After issuing the notice this Court directed respondents 4 to 9 to maintain status-quo as regards construction/repairs and the Ndmc was directed not to sanction any plan in favor of respondents 4 to 9. The Ndmc was also directed to produce the original file in relation to this matter. It is worthwhile to note that in spite of this direction at the earliest stage of the writ petition; the Ndmc never produced the original file. During the pendency of the writ petition respondents 4 to 9 file an appeal against the demolition notice to the Chief Engineer. Thereafter, on 25.11.1988 this Court appointed a Local Commissioner to make a report on the illegal construction. The report was duly made and the Local Commissioner confirmed most of the illegal constructions. On 13.11.1989 theCourt directed the Chief Architect to make a report in regard to unauthorisedconstruction. On 28.4.1989 the Chief Architect submitted a report. In the said report the Chief Architect confirmed the illegal construction of the mezzanine.floor. Strangely enough, the Chief Architect went out of the way by giving two months time to the respondents to settle the matters with the petitioner and stayed action of demolition. Since the matter was being looked into by this Court and the petition was to be finally disposed of early, this Court did not accede to the request of the petitioner for the sealing of the premises. Taking advantage of the fact that this Court did not direct the sealing of the premises as an interim measure, respondents 4 to 9 filed a civil suit No. 398 of 1988 in theCourt of the Senior Sub-Judge for perpetual injunction against the Ndmc for restraining them from sealing the premises and for an injunction restraining them from stopping running of the restaurant. It may be noted that although the writ petition was pending, the respondents did not make the petition a party in the said suit. The respondents, thus, secured an interim injunction behind the back of the petitioner from the Senior Sub-Judge when the same questions were pending before this Court in the writ petition. The petitionershave, thereafter, filed a contempt petition against respondents 4 to 9 because of their attempt to over-reach this Court by filing a civil suit for permanent injunction and securing an interim injunction.

(9) Section 189 of the Punjab Municipal Act, 1911 requires that no person shall erect or re-erect or commence to erect or re-erect a building without the sanction of the Committee and every person who inte

(10) It is not denied that the clearance of the authorities under the Delhi Fire Prevention and Fire Safety Act, 1986 was not secured by respondents 4 to 9 when they carried out the illegal construction. This was particularly necessary in the context of the fire which had already taken place in the premises in 1987, i.e. after the Act had come into operation. The respondents arc running a restaurant which is frequented by large number of people and absence of fire safety measures is bound to endanger the life and safety of the visiting public It may be noted that all the requirements of the Punjab Municipal Act and the building bye-laws in regard to construction and r construction assume that it is only the owner of the building who can . carry out such construction, But, even if the owner has carried out the construction he must do so according to the statutory requirements of the building bye-laws and fire safety requirements under the Delhi Fire Prevention and Fire Safety Act, 1986. A tenant or a licensee or a trespasser cannot carry out any construction in the premises of their occupation without the express permission of the owner. This is the requirement of general law. The question whether the construction carried out by the tenant is according to the bye-laws or not is completely irrelevant. A construction without the authorisation from owner is per se illegal. Counsel for respondents 4 to 9 had, with the help of building bye-laws, tried to argue that there was no violation of the bye-laws.In the absence of the authorisation from the owner a tenant cannot be permitted to raise such arguments. But, even otherwise the construction carried out by the respondents is completely contrary to tile provisional sanction plan. On10.12.1987 the Chief Architect (respondent No. 2) had clearly informed the petitioners that the sanction of the plan was subject to "the party submitting complete ownership documents, lease, plan and power of attorney in the name of the person who has signed the plan." They were also warned not to start the construction without getting the plans released. The mezzanine floor,according to the bye-laws, is permitted only up to 25 per cent of the ground floor, is to be used only for storing purposes. The respondents have almost-covered an area almost equivalent to the area on the ground floor and has constructed a puce mezzanine floor and are using it for serving the general public as a restaurant. The massive construction carried out by respondents 4to 9 with major structural changes is, thus, thoroughly illegal and unauthorised.

(11) Counsel for the respondents submitted that the petitioner has not produced the original plan. Therefore, it cannot be said that the construction carried out by the respondents was illegal. There is no substance in this submission. We had directed the Ndmc to produce the original record and thefiles, but they were not produced. The agenda note (R-1) has stated. "The old relevant building plans file is not available in the record." The Ndmc is supposed to keep the original plans in safe custody, but they have failed to doso. But for the immediate purpose it was not necessary to go to the original building plan because the respondents had themselves submitted the building plan on the basis of which provisional sanction was given to them. In the area chart given Along with the said plan the respondents had clearly stated that the original-mezzanine floor was 38.06 sq. meters only and the construction which they proposed to have was a puce mezzanine floor of 183.61 sq. meters.The respondents, through their affidavit, have raised some objections to thelocal commissioner's report. We have considered them. The principal illegal construction around which the- arguments revolved were in regard to the massive puce mezzanine floor constructed by the respondents. The report ofthe Chief Architect confirms the construction of the puce mezzanine floor.The respondents have themselves admitted this position in the plans submitted by them, as pointed out above. The argument seems to be an after-thought andis, therefore, rejected.

(12) The other submissions on behalf of the respondents are that the construction carried out by them are within .the permissible limits of the bye-laws. We have already held that a tenant who carries out the construction without the permission of the landlord cannot be heard to say that the construction. is according to the bye-laws. What has been done by the respondents is to convert the mezzanine floor into a puce floor, raising the height of the mezzanine floor by lowering down the ground floor itself, raising the boundary walls by 4 ft., construction of the cemented slabs, construction of an additional latrine and a urinal. These massive constructions, making structural changescan, by no stretch of imagination, be described as permissible alterations or restoration of the premises after the fire, as was faintly suggested during the course of the arguments by the Counsel for the respondents.

(13) Another submission of the respondents is that the writ petition is not maintainable when the suit filed by the petitioners is pending and the appellate authority had remanded the matter to Ndmc for further action.This submission is devoid of any merit. The nature of reliefs claimed in the suit and in the writ petition are quite different. In any case the Counsel for the petitioner had stated that there were withdrawing the said suit. As regards the direction of the appellate authority, which was given on 4.4.1990, nothing is being done by the NDMC. Considering the inaction of the Ndmc at all thestages, it would be futile to expect any meaningful action on the part of theNDMC.

(14) Counsel for the petitioner has strongly urged that the illegal constructions were done by the respondents with the active connivance of theofficers of the NDMC. From the record we find good deal of substance in thissubmission. First of all the original sanction plan as submitted by the petitioners and the entire file was not safely preserved. The Ndmc failed to keep a watch on the illegal construction being carried out by the respondents inspite of the repeated letters by the petitioner. They deliberately omitted the major illegal constructions from the two show cause notices and failed to take action of sealing and demolition during the time when the construction was going on. When the Plan submitted by the respondents was given provisionalsanction, the Ndmc asked the respondents to deposit Rs. 3,49,025.00 as compounding charges. It was completely contrary to the bye-laws and illegal on the part of the Ndmc because the compounding charges, if at all, can be worked out only on the basis of construction illegally done. The officers of the NDMC had already decided before hand to permit the illegal construction and to collect the compounding fees from the respondents. The respondents quickly availed of this illegal action on the part of the officers of Ndmc and deposited the said amount to show as if they had complied with the conditions of granting the provisional sanction. The respondents failed to produce the authorisation from the petitioner owner or the ownership documents or lease and theNDMC closed its eyes on this major infirmity. The actions of demolition were not taken expeditiously, permitting the respondents to abuse the process of law by filing appeals and suits. Lastly, in spits of the repeated directions by this Court the original file in regard to the provisional sanction of the plan of the respondents and action taken against them was not produced. We have no hesitation in holding that the Ndmc and the concerned officials have committed gross dereliction of duty.

(15) The next question is what is the mandamus we should issue to theNDMC. Counsel for the respondents had submitted that the only lawful course open of compounding the illegal construction be adopted by accepting the compounding fees. They have referred to some decisions of the High Courts and the Supreme Court. The High Court decisions have hardly any relevance since they are pronounced on different sets of facts. There is no decision which lays down that where a tenant without the permission of the owner illegally carries out massive constructions and structural changes, the authorities under the Punjab Municipal Act is powerless to direct demolition of such aconstruction. In the Express Newspaper Case the Supreme Court has directed the Ndmc to compound the illegal constructions which could be compounded and to proceed according to law for the illegal constructions. It may be noted that the facts of the said case are quite different from the present one. Indian Express was in the position of an owner of the building holding the lease hold rights of the plot, whereas in the present case the illegal construction has been carried out by the tenant without the permission of the landlord.

(16) Since the construction carried out by the respondents, mentionedabove, is completely illegal, we direct the Ndmc to demolish the same. The demolition is necessary for the additional reason that the construction is made without the clearance under the Delhi Fire Prevention and Fire Safety Act,1986, thus, endangering the lives of the public visiting the restaurant. Allowing illegal construction of this nature by the Ndmc and carrying out an activity such as a restaurant by the respondents in the said illegal construction are not only contrary to law but public interest. The Ndmc and its officers are guilty of dereliction of their statutory duty. The respondents 4 to 9 are guilty of trying to over-reach this Court by securing the injunction order from the Sub-Judge when the writ petition was pending in this Court and this Court was seized of the matter. We, therefore, impose cost of Rs. 5,000.00 each on theNDMC and respondents 4 to 9.

(17) The writ petition is allowed with costs. Rule is made absolute. Counsel fee Rs. 2.000.00.