S. Balbir Inder Singh vs M.C.D. And Anr.
2004 Latest Caselaw 1461 Del

JUDGMENT

Pradeep Nandrajog, J.

1. Writ petition and the CM(Main) above have been filed by S. Balbir Inder Singh. In the writ petition, order dated 18.12.2003 passed by the Appellate Tribunal MCD in Appeal No. 3/ATMCD/2003 has been challenged. It is prayed that said order be sent aside and as a consequence demolition order dated 30.12.2002 passed by MCD be quashed.

2. In the CM(Main) it is prayed that order dated 19.4.2004 passed by Shri A.K. Pathak A.D.J. Delhi in MCA No. 49/2004 be quashed and as a consequence order dated 28.2.2004 passed by Sh. Amit Bansal, Civil Judge Delhi in Suit No. 322/2003 be set aside and petitioners application under Order 39 Rule 1 and 2 CPC be allowed. MCD be restrained from demolishing petitioners house No. 1513, Wazir Nagar, Kotla Mubarakpur, New Delhi till disposal of the suit filed by the petitioner.

3. Case pleaded by the petitioner is that by and under a registered sale deed dated 29.10.1952, his father, late S. Dalip Singh purchased 500 sq. yards of land which came to be given Municipal number 1513, Wazir Nagar, Kotla Mubarakpur, New Delhi. His father constructed a house on the plot. By way of an internal arrangement between petitioner and his step mother, Smt. Ranjeet Kaur Guman, portion of house measuring 135 sq. yards came under possession of the petitioner and remaining 365 sq. yards came under possession of his mother.

4. For record, I may note that sale deed dated 29.10.1952 shows that Late S. Dalip Singh, father of petitioner, purchased 490 sq. yards of land and not 500 sq. yards of land.

5. It is stated by the petitioner that on 24.6.1996, a demolition order under Section 343 DMC Act 1957 was passed against petitioners property. It was passed without serving any show cause notice on the petitioner. Part of the property was demolished in July and September 1996. Petitioner challenged the demolition order by and under Appeal No. 247/AT MCD/2001. Vide order dated 21.3.2002, appeal was allowed. It was directed that demolition order dated 24.6.1996 be treated as a notice. Petitioner was given an opportunity to represent. MCD was directed to pass fresh orders.

6. Petitioner states that on 10.6.2002 and 16.8.2002 he submitted representations against the demolition order (which was to be treated as a notice). Some proceedings were conducted by Sh. Mishra, Assistant Engineer (Bldg.). No hearing was conducted by Sh. Dinesh Kumar. On 30.12.2002 Sh. Dinesh Kumar passed a demolition order.

7. As noted above, challenge to the demolition order before the appellate tribunal failed.

8. A two fold grievance has been laid by the petitioner. Firstly, it is contended that Sh. Dinesh Kumar (A.E.) had not heard the petitioner. Hearing was concluded by Sh. Mishra (A.E.) and therefore impugned demolition order had to be quashed. Secondly, on merits it is contended that step mother of the petitioner has effected certain constructions which were also a subject matter of proceedings before the Municipal Authorities pertaining to unauthorised construction. There is no demarcation between the portion of the property which has fallen to share of his step mother and petitioner's share. It cannot therefore be ascertained as to which part of the property is unauthorised.

9. Response of the MCD to the writ petition is as under:-

"6. It is submitted that the property in question i.e., 1513, Wazir Nagar, Kotla Mubarakpur, New Delhi was allegedly purchased by the father of the petitioner by way of a Registered Sale Deed. Without admitting the ownership of the petitioner or his father in respect of the said property, it is submitted that admittedly, the property in question was being assessed in the name of petitioner's mother, Smt. Ranjeet Kaur Guman. Smt. Ranjeet Kaur Guman raised unauthorized construction on the said property in the year 1991 and 1992. It is submitted that for the first time unauthorized construction of a hall and basement, ground floor and first floor was noticed in the property in dispute on 3.12.91 and the same was booked vide file No. 806/B/UC/NDZ/91. The unauthorized construction was again noticed in the form of partition walls in basement/ground floor and first floor on 17.1.1992 and the same was booked vide file No. 43/B/UC/NDZ/1992. Again the unauthorized construction was noticed in addition to the already booked construction at basement, ground floor and second floor. Construction of shutters on basement, ground floor and first floor, two dwelling units with 7 rooms, toilets, 2 kitchens etc. were noticed on 2.4.92 which was booked vide file No. 309/B/UC/NDZ/1992. In pursuant to the booking, demolition orders dated 6.12.91, 21.1.92 and 5.4.92 were passed. Since the unauthorized construction raised by Smt. Ranjeet Kaur Guman was not demolished by her, a show-cause notice dated 20.1.92 under Section 345-A of the DMC Act was issued to her and consequently after passing of the sealing order dated 22.6.92, the premises were sealed. In the meantime, additional unauthorized construction in the form of a new building was noticed in property No. 1513, Wazir Nagar, Kotla Mubarakpur and the unauthorized construction of basement and ground floor and raising of columns on first floor was booked vide file No. 400/B/UC/CZ/96 dated 17.1.1996. On enquiry it was found that said construction was being raised at the instance of the petitioner herein.

7. That after sealing of the building on 22.6.1992, Smt. Ranjeet Kaur Guman challenged the sealing order dated 22.6.1992 by way of filing an appeal before the Appellate Tribunal, MCD. The Appellate Tribunal, MCD in appeal No. 269/ATMCD/1992 vide order dated 17.7.1992 was pleased to set aside the sealing order and remanded the matter to MCD for a fresh decision after providing reasonable opportunity of hearing to Smt. Ranjeet Kaur Guman. After providing opportunity of hearing to Smt. Ranjeet Kaur Guman, again sealing order was passed under Section 345-A of DMC Act, for sealing of the premises on 11.11.1992. It is submitted that the demolition orders dated 6.12.1991, 21.1.92 and 5.4.92 have not been challenged by Smt. Ranjeet Kaur Guman and the same have attained finality. Therefore, the building in question is liable to be demolished in accordance with law and the policy of the MCD.

8. That in addition to raising unauthorized construction, the petitioner herein has encroached upon the public land. This fact is also clear from the fact that though the petitioner is claiming that the area measuring about 500 sq. yards was purchased by his father, but in the alleged sale deed filed with the present petition, the area is mentioned to be only 490 sq. yards. At the request of the MCD, the inspection of the locality was carried out by revenue officials and it was found that there existed aam rastha (public thorough fare) which was found closed during the inspection, have been encroached by the petitioner herein besides other person. It is submitted that for removing the encroachment from the public land, the action was taken by the MCD on 26.7.1996 and the RCC slabs of the first floor roof were demolished. The action was again taken on 19.9.96 and part of the parapet over the roof was demolished and the water tank installed thereon was also removed.

9. That the petitioner challenged the demolition action undertaken by the MCD by way of filing a Civil Suit. The said suit No. 838/96 was dismissed by the Ld. Civil Court on 1.9.2001 holding that the suit was barred under the Specific Relief Act since the efficacious alternate remedy was available to the petitioner herein by way of filing an appeal before the Appellate Tribunal, MCD against the demolition order dated 24.6.96.

10. That the demolition order dated 24.6.1996 was challenged by the petitioner before the Appellate Tribunal, MCD. The Appellate Tribunal, MCD in Appeal No. 247/ATMCD/2001 vide order dated 21.3.2002 set aside the order of demolition dated 24.6.1996 and directed the same to be treated as a fresh show-cause notice served upon the petitioner. The Appellate Tribunal, MCD further directed that the matter will be decided by the Asstt. Engineer (Bldg.).

11. That pursuant to the order dated 21.3.2002 passed by the Appellate Tribunal, MCD, the petitioner appeared before the Asstt. Engineer (Bldg.) on 12.4.2002 and subsequently on 21.5.2002, 3.6.2002, 10.6.2002, 25.6.2002, 26.7.2002, 1.8.2002 and 18.8.2002 and submitted his representations dated 10.6.2002 and 16.8.2002. After considering the representations of the petitioner and the documents placed by him on record, the Asstt. Engineer (Bldg.) passed the demolition order on 30.12.2002."

10. Grievance of the petitioner in the CM(Main) is that under the garb of removing encroachment on the public street, MCD is threatening to demolish part of his house. It is stated that assuming there was an encroachment, it was over 30 years ago and therefore possession has matured into title by adverse possession. It is stated that property had to be preserved, pending suit, and therefore the courts below erred in refusing the interim injunction when petitioner filed a suit for perpetual injunction to restrain MCD from demolishing the house of the petitioner or part thereof under the garb of removal of encroachment from a public street.

11. It was the common case of all parties that the colony Wazir Nagar, Kotla Mubarakpur, does not have an approved lay out when colonization took place. Plots were carved out and sold. Houses came up. Common passages came to be treated as public streets. MCD has been maintaining there streets.

12. It is the positive case pleaded by MCD in the writ petition that firstly in 1991-92 unauthorised constructions were noted and were booked. Plot stands in the name of Smt. Ranjeet Kaur Guman as the recorded owner in Municipal records. Proceedings were initiated for demolition of said unauthorised constructions. In 1996, additional constructions in the form of a new building were noted. These were also booked.

13. Petitioner has himself stated in Ground (ii) of the petition that no partition has taken place and entire property stands in his step mother's name, though petitioner states that he and his step mother have had an internal partition.

14. Nothing therefore turns on the plea of the petitioner that MCD should first determine his mother's share and his. In a proceeding to determine unauthorise construction, it is the building which is the subject matter of consideration. Issue of ownership concerns itself with as to who has a right to be heard. MCD proceeded to book the new building which was being constructed in 1996 on part of the land. Petitioner claims that he is the builder thereof. There was thus no need for the MCD to determine share of petitioner and his step mother.

15. Demolition order dated 30.12.2002 reads as under:-

"This is a case of unauthorized construction carried out in property No. 1513, Wazir Nagar, Kotla Mubarakpur, New Delhi. The demolition order bearing No. 100/B/UC/CZ/96 dated 24.06.1996 has already been ordered to be deemed as fresh show cause notice served upon the appellant by the Hon'ble Appellate Tribunal, MCD vide its orders dated 21.03.2002. The appellant had joined the proceedings on 12.04.2002 and also on all other occasions. The hearing proceedings have concluded on 16.08.2002.

During the course of hearings, the appellant/owner has interalia contended that aforesaid unauthorized construction had come up prior to the enforcement of DMC Act, 1957. He has, however, failed to submit any documentary evidence in support of his contention.

I find that sufficient opportunities have been given to the appellant/owner to hear his case and for submission of documentary evidence in support of his contention.

After going through all the material placed on record, it is observed that construction in question is only unauthorized and needs to be demolished.

I Dinesh Kumar, Assistant Engineer (Bild), Municipal Corporation of Delhi, Central Zone, vested with the powers of the Commissioner MCD Under Section 343(1) read with Section 491 of the DMC Act, 1957 and the rules made there under, hereby order that the unauthorized construction under notice be demolished within 06 days of the issue of this notice, failing which the same shall be demolished at the risk and cost of the owner/appellant."

16. Right to be heard means that a person who is likely to be affected by a decision should be afforded an opportunity to state his case. This may be in writing. Hearing does not mean an oral hearing. Of course, where complex questions of law and fact arise for adjudication, requirement of hearing, to be a fair hearing may fall short if oral hearing is not granted.

17. Demolition order shows that defense of the petitioner that construction was old and had come up in 1952 when MCD was not even born has been noted.

18. This indeed was petitioners defense. It was for the petitioner to have given proof in support of said fact. Demolition order shows that petitioner failed to submit any documentary proof.

19. Record of MCD shows that at each hearing, matter was adjourned to enable petitioner to submit proof that the building in question was constructed in the year 1952. No proof was given.

20. That a building existed was an admitted position. MCD alleged that it came up in 1996. Petitioner admitted its existence in 1996 but claimed that it existed since 1952. He furnished no document to sustain his defense. What oral hearing was needed? I fail to comprehend.

21. It hardly matters when Sh. Dinesh Kumar conducted the earlier proceedings or not.

22. Appellate tribunal has rightly held that in the context of the defense of the petitioner and his having failed to submit any document to sustain his defense, demolition order was legal and valid.

23. Turning to the issues raised in the suit filed by the petitioner when MCD tried to remove encroachment from the public lane, case of the petitioner was that he had not encroached on public land and alternatively, if he had, encroachment being over 30 years old, possession had matured into title.

24. Part of the land on which building came up was obviously built upon in the year 1996 as petitioner submitted no proof of the existence of the building prior to 1996. Adverse possession and title on said count has prima facie not been established.

25. Colony has no approved lay out as area got colonised by plots being carved out. This was done prior to the year 1952.

26. The courts below had to determine the issue for purposes of interim orders on basis of revenue entries and aksh shajra as also demarcation reports. Learned Civil Judge, while dismissing petitioner's application under Order 39 Rule 1 and 2 CPC, vide order dated 28.2.2004 has held:

"12. I have heard the Ld. Counsel for the parties and have perused the documents on record carefully. After perusing the Aksh Sizra of the year 1917-18 in which a public street has been shown at Khasra No. 347 and also the Nishan Dehi reports dated 14.09.1994 and 13.05.2003 in which it has been specifically stated that passage was found closed and that Sh. Saroop Singh Gupta and Sh. Balbir Inder Singh S/o Sh. Dalip Singh constructed house on his passage, it seems that plaintiff is an encroacher upon the public land. Moreover, as argued by counsel for defendant No. 2 these documents have not been challenged by any one till date. Moreover, in letter dated 17.02.2003 from the Dy. Commissioner Central Zone to Dy. Commissioner (Revenue) it is also specifically mentioned that there are three properties by property by No. 1512, 1513 falling in Wazir Nagar and N-33, falling in NDSE Part-I involving Khasra No. 345, 346 and 347 and that the dispute basically pertains to the public thorough fare. Moreover, in appeal by the Appeal by the Appellate Tribunal, MCD has also been dismissed vide order dated 18.12.2003 and it is clear that the plaintiff has also raised unauthorized construction over the said property No. 1513. As the plaintiff is an encroacher on the public land and also has raised unauthorised construction and as his appeal in the Appellate Tribunal MCD has also been dismissed on 18.12.2003, therefore, I think the plaintiff is not entitled to the equitable relief of injunction."

27. In appeal, Sh. R.S. Pathak A.D.J. has held, vide his order dated 19.4.2004:

"5. I have perused the Nishan Dehi reports and I find that it has been specifically mentioned therein that gali has been encroached by one Swaroop Singh and S. Balbir Inder Singh (appellant). So far as Swaroop Singh is concerned he is the tenant of respondent No. 3 and father of respondent No. 2. However, respondent No. 2 has no grievance if encroachment is removed. The Nishan Dehi reports clearly shows that gali which existed, as is apparent in the Aks Sazra pertaining to year 1917-18, has now been encroached. It has been completely encroached by the construction raised by the appellant and one Saroop Gupta.

As per the Nishan Dehi report also, which remained unobjected till date, appellant is prima facie guilty of encroaching the public street. Rather he has closed it by making encroachment at the one end of the gali. Though appellant had reiterated in the alternative that even if encroachment is there, it existed for more than thirty years and cannot be removed but Nishan Dehi reports belies this fact, accordingly to which encroachment was not done thirty years back. Be that as it may, since gali has been blocked which is prejudicial to the larger interest of general public, encroachment is liable to be removed and no restraint order can be passed against the Municipal Corporation of Delhi in this regard. Even the conduct of appellant is not above the board. He appears to be habitual violator of law."

28. Sh. Jagmohan Sabharwal, learned senior counsel, in the context of legal proceedings initiated by respondents 2 and 3 details whereof finds mention in an affidavit filed by the petitioner on 28.5.2004 sought to urge that it is respondent No. 2 which has in fact made encroachments on the public street. I need not deal with said issue, inasmuch counsel conceded that sale deed dated 29.10.1952 shows that S. Dalip Singh purchased 490 sq. yards of land in Wazir Nagar, Kotla Mubarakpur. Sh. Sabharwal conceded that at spot, petitioner and his step mother are in possession of a much larger area. Sh. Sabharwal urged that this could well be a result of petitioner and his step mother occupying other private land.

29. Plea is too attractive to merit consideration. None other than MCD is alleging trespass. There is no third party which is claiming that petitioner or his step mother have illegally possessed other land. It is highly improbable that extra occupation is on private land.

30. Exercising jurisdiction under Article 227 of the Constitution of India this court has not to reappreciate evidence. Finding of fact can be challenged on limited grounds, being material evidence being ignored, irrelevant evidence being considered or finding being perverse. First two would also have facets of improper exercise of jurisdiction and failure to exercise jurisdiction in a legal manner.

31. I find no merit in the writ petition and the CM(Main). Dismissed.

32. No costs.