New Delhi Municipal Corporation vs H.K. Choudhary
2009 Latest Caselaw 51 Del

*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+    LPA 6/2009
     NDMC                ..... Appellant
                    Through Mr. Arvind Sah, Advocate.
               versus
     H.K. CHOUDHARY                    ..... Respondent
                    Through Mr. Sandip Sethi, Sr. Advocate.

      CORAM:
      HON'BLE THE CHIEF JUSTICE
      HON'BLE MR. JUSTICE SANJIV KHANNA


              ORDER

% 12.01.2009

1. Learned counsel for the appellant, New Delhi Municipal Corporation submits that unauthorized construction prior to 1984 before amendment of Section 195 of Punjab Municipal Act, 1911 by amendment no.39, which came into force from 27th May, 1984, can be taken notice of and demolished even today. This contention has to be rejected on the plain reading of Section 195 of the Punjab Municipal Act, 1911, prior its amendment in 1984. Section 195 of the said Act, prior to the amendment reads as under:-

"195. Penalty for disobedience:-

Should a building be begun, erected or re-erected-

(a) without sanction as required by Section 189(1); or

(b) without notice as required by section 189(2); or

(c) when sanction has been refused;

the [committee] may by notice delivered to that owner within six months from the completion of the building, require the building to be altered or demolished as it may deem necessary within the period specified in such notice; and should it be begun or erected,

(d) in contravention of the terms of any sanction granted; or

(e) when the sanction has lapsed; or

(f) in contravention of any bye-law made under section 190; or in the case of a building of which the erection has been deemed to be sanctioned under section 193(4), if it contravenes any scheme sanctioned under section 192;

the [committee] may by notice to be delivered to the owner within six months from the completion of the building require the building to be altered in such manner as it may deem necessary, within the period specified in such notice;

Provided that the committee may, instead of requiring the alteration or demolition of any such building, accepts by way of compensation such sum as it may deem reasonable;

Provided also that the committee shall require a building to be demolished or altered so far as is necessary to avoid contravention of a building scheme drawn up under section 192;

[provided further that if any notice is issued by the Executive Officer under this section on the ground that a building has been begun or has been erected in contravention of the terms of any sanction granted or in contravention of any by-law made under section 190 the person to whom the notice is issued may, within fifteen days from the date of service of such notice, appeal to the committee, and subject to the provisions of sections 225, 232 and 236, the decision of the committee shall be final"

2. The predecessor of the appellants was required to issue

notice within six months from the completion of the unauthorized

construction in the building, failing which unauthorized construction

could not be demolished or altered. As a result of 39th Amendment,

applicable from 27th May, 1984, six months period prescribed under

Section 195 of the Punjab Municipal Act, 1911was deleted and done

away with.

3. A Division Bench of Delhi High Court in Municipal

Corporation of Delhi Vs. Mrs. Surjit Kaur, AIR 1973 Delhi 198 has

interpreted pre amended Section 195 of the Punjab Municipal Act,

1911 and has held that the said Section would apply to a building,

which is erected even without prior sanction. The authorities must

issue notice within six months from the completion of the building

otherwise demolition and other penal actions cannot be validly

initiated. Upon expiry of six months from the date of completion of

building, no liability remained and action for demolition etc. cannot be

initiated.

4. Learned counsel for the appellant while admitting that

some construction was completed before 27th May, 1984, submitted

that as per Unified Building Bye Laws, 1983 construction is complete

only when notice of completion is issued by the owner. This argument

cannot be accepted. Construction is complete after it has been

carried out and is not dependent upon issue of notice by the owner.

In case of unauthorized construction, normally a notice will never be

issued by the owner. Notice of construction given by the owner is for

issue of completion certificate etc. under the Building Bye Laws and

has no co-relation with Section 195 of the said Act and the

responsibility of the authorities. If the argument of the appellants is to

be accepted, it will mean that the construction is not complete and is still continuing even now. This plea cannot be accepted.

5. Decision of the Division Bench in Raghubir Singh & Others

Vs. Municipal Corporation of Delhi & Another 22 (1982) DLT 235

is not relevant for adjudication of the question in issue. Section 195

of the Punjab Municipal Act, 1911 had not come up for consideration

in the said case. The said case dealt with the question of "deem

sanction" for failure of the authority to sanction or reject building plans

within 60 days as stipulated under the Delhi Municipal Corporation

Act, 1957. In that context, it was held that the application for sanction

of building plan should be materially complete before period of 60

days will begins to run.

6. It appears that the appellants want to take action in

respect of alleged unauthorized construction made more than 20

years back prior to 27th May, 1984.

7. The Court has only protected the respondent in respect

of said construction in view of Section 195 of the Punjab Municipal

Act, 1911.

8. In view of the above findings, we uphold the judgment

passed by the learned Single Judge but with the modification that the

construction made prior to 27th May, 1984 is protected in view of the

pre amended Section 195 of the Punjab Municipal Act,1911.

Accordingly, the appellant will proceed and comply with the directions issued in the said decision.

CHIEF JUSTICE

SANJIV KHANNA, J JANUARY 12, 2009 NA