Dda vs P.C. Jain
2010 Latest Caselaw 1139 Del

*                IN THE HIGH COURT OF DELHI AT NEW DELHI

+                            WP(C) No.8759/2008
%                        Date of Decision: 26.02.2010

DDA                                                         .... Petitioners
                      Through Mr. Arun Birbal, Advocate

                                  Versus

P.C. Jain                                                  .... Respondents
                      Through   Mr. R.S. Kela, Advocate.

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE MOOL CHAND GARG

1.     Whether reporters of Local papers may be              YES
       allowed to see the judgment?
2.     To be referred to the reporter or not?                NO
3.     Whether the judgment should be reported               NO
       in the Digest?



ANIL KUMAR, J.

*

The petitioner DDA has challenged the order dated 29th April, 2008

passed by the Central Administrative Tribunal, Principal Bench in TA

92/2007 allowing the application of the respondent setting aside the

penalty advice dated 21st March, 2001 for 2% cut in pension for one year

pursuant to a charge sheet which was issued one day prior to retirement of

the respondent on 30th January, 1996.

Brief relevant facts to comprehend the controversies are that the

respondent was working as a Director (Building) with the DDA at the

relevant time. A plot of land had been allotted to M/s. Jaina Group of

Builders bearing Plot No. 272, Fruit and Vegetable Market, Okhla, New

Delhi. The allotee of the plot was issued a notice by the petitioner to

submit a stamped lease deed. For submitting the lease deed notice dated

3rd May, 1989 was issued by the land department of the petitioner against

which a writ petition being WP(C ) No. 2218/1989 was filed by the allottee

of the said plot.

During the pendency of the writ petition filed by the

allottee/builder of the plot, an inspection of the building constructed

thereon was made and certain unauthorized constructions were noticed

which were not in conformity with sanctioned plan. In the writ petition

filed by the allottee/builder of the plot, the petitioner, there f ore filed an

additional af fidavit detailing the deviations found in the building.

The writ petition filed by the builder/allottee was disposed of by

the High Court holding that the deviations pointed out by the

petitioner/DDA in the additional af fidavit be treated as a notice under

Sections 30 & 31 of the DDA Act against the builder/allottee which should

be replied by him. The High Court also ordered that the show cause notice

dated 3rd May, 1989 be disposed of after holding inquiry in accordance with

law.

A fter the writ petition was disposed of by order dated 27 th

February, 1991, after giving opportunity to the builder/allottee to file the

replies and documents, had directed the petitioner to take the decision

within the time stipulated and thereafter, the petitioner was directed to

act in accordance with law.

The plea of the respondent is that after the additional af fidavit of

the petitioner, which was treated as a show cause notice, the reply was

filed by the builder/allottee, however, efforts were made to pressurize

the respondent to control the builder‟s illegal activities both

departmentally and otherwise. According to the respondent since he did

not succumb to the pressure and passed an order directing demolition of

unauthorized construction and on failure to demolish the unauthorized

construction sealing of the premises, this resulted into departmental

proceedings initiated against him at the fag end of his career. The charge

memo was issued to him one day prior to his retirement. The respondent

also contended that ultimately, after giving a reasonable opportunity to the

builder, an order dated 9th February, 1993 was passed directing the builder

for removal of unauthorized construction and on failure of the builder to

remove the unauthorized constructions to seal his property. The

imputations which were made against the respondent were that in case of

M/s. Pawan Apartments Pvt. Ltd., after hearing the builder a timely order

was not passed by the respondent and the order for demolition and sealing

the property in case unauthorized construction is not removed by the

builder, then to seal the property, was passed after considerable time and

consequently, the respondent had acted with dereliction of duty, negligence

in performance of his duties and behaving in the manner unbecoming of an

of ficial of DDA and thus violated Rule 3 of CCS(Conduct) Rules, 1964 as

made applicable to the DDA employees.

A fter serving the charge sheet a day be fore the retirement, the

inquiry was conducted and a penalty of 2% cut in pension for one year was

imposed which was challenged by the respondent before the Tribunal

contending, inter-alia, that pursuant to the order passed by the High Court

on 27th February, 1991 in WP(C) No. 2218/1989 whereby the deviations

pointed in the additional af fidavit were directed to be treated as a notice

under Section 30 & 31 of DDA Act and after hearing the reply to show

cause notice under section 30 & 31 of the DDA Act, the builder was given

opportunity to file the relevant documents and the order could be passed

only after hearing the builder. Consequently, it was contended that after

giving reasonable opportunity to respondent, demolition order was passed

against the builder and on failure of the builder to demolish the

unauthorized construction, the order to seal the property was also passed.

In the circumstances, it is contended that there could not be any

complicity on the part of the respondent nor could be imputed to him. It

was also contended that the demolition and sealing order was not passed

against the builder af ter receiving memo of charges against him. In the

circumstances, it is contended that tenor, scope and purport of the

order/directions had been deliberately misinterpreted by the petitioner to

implicate the respondent on the eve of his retirement as he had declined to

regularize the unauthorized construction of the builder.

The respondent also contended that the deviation complaints were

regard to change of location of stare case was deviated from the sanction

plan on account of mistake which occurred in the architectural drawings

which were contrary to location and consequently contrary to the

sanctioned plan. It was contended by the respondent that adjacent to the

plot in dispute, is Plot No. 271 and in the sanctioned plan the location of the

stair case was shown on other side that is towards the side of plot No. 277

which mistake was realized during the construction. The builder had also

represented these facts before the respondent in the course of hearing,

which hearings were granted pursuant to the direction by the High Court.

In the circumstances it was contended though it was not a deviation yet

with a view to avoid any controversy, rectification was directed. The lease

papers which were also demanded pursuant to the show cause notice, were

given by the builder/allottee. The builder had alleged that the stamp

papers had already been sent to the petitioner on 9th April, 1991,

forwarded to the concerned department. The respondent also pointed out

that after the close of the hearing about the deviation, for ascertaining

the allegation of filing the stamped lease deed for which a notice had been

given to the builder for which a writ petition was filed by him, the file did

not remain in the building section and it either remained in the land section

to consider the reply of the builder with regard to the notice dated 3 rd

May, 1989 or the file was otherwise kept away from the respondent and

consequently, the final order directing either to demolish the deviation or

for sealing the unauthorized construction could be passed on 9th January,

1993.

The pleas and contentions of the respondent were opposed on the

ground that the facts disclosed were self justifying statement and the act

of the respondent was contumacious conduct and the disciplinary

proceedings had been initiated bonafide and legal formalities had been duly

complied with. The plea of the respondent that not only the present

disciplinary proceedings initiated but other disciplinary proceedings were

initiated on the eve of his retirement has not been denied by the

petitioner. It has been admitted that another penalty order dated 26 th

June, 2003 ordering 2% cut in pension for a period of ten years was passed

which was challenged in TA-91/2007 which was allowed by the Central

Administrative Tribunal, Principal Bench by order dated 25th July, 2008

and the writ petition filed by the DDA against the order of the Tribunal,

Principal Bench being WP(C) No. 540/2009, has also been dismissed today

by order dated 26th February, 2010.

The Tribunal has considered Rule 4 & 5 of DDA, removal of

objectionable development Rules, 1975 and the order of the High Court

pursuant to which the directions were given to allow the builder to file

response to show cause notice as the additional af fidavit regarding the

deviation was ordered to be treated as a show cause notice under Section

30 & 31 of the DDA Act. It was also noticed that a proper hearing as

contemplated under law was given to the builder and only thereafter, an

order of demolition of unauthorized construction and on failure to carryout

unauthorized construction for sealing the premises was passed on 9th

February, 1993.

The Tribunal also noticed that considering the tenor of the order

dated 27th February, 1991, there is no violation of the Court‟s order nor

any such complaints were made by any of the parties to the writ petition

filed by the applicant/allottee. This has also been noticed that for

extension of time granted by the High Court, it was for the petitioner to

move appropriate application in view of the fact that the stamped copy of

the lease deed was filed and to ascertain that fact, for the considerable

period, the file was not with the respondent.

The learned counsel for the petitioner has emphatically contended

that the findings of the disciplinary authority could not be disturbed by

the Tribunal and has relied on Government of Tamilnadu Vs. K.N.

Ramamurthy; Government of Tamil Naldu Vs. K.N. Ramamurthy (A IR 1997

SC 3571); Union of I ndia Vs. A.K. Patnaik (A IR 1996 SC 280) and Union of

India Vs. K.K. Dhawan (A IR 1993 SC 1478). The Tribunal has considered

the precedents relied on by the petitioner and has held that the principals

laid down in the cases relied on by the petitioner were not relevant to the

facts of the case. The Tribunal had gone into supporting facts that the

charge and the nature of evidence and other aspects and had held even

prima facie no misconduct as alleged against the respondent was made out.

The observation of the Tribunal that apparently no reason to uphold

the action especially since no willful guilt or conduct can be attributed to

the respondent had been made out, cannot be faulted in the facts and

circumstances. The inferences of the Tribunal in Para 12 of the order

impugned before us are as under:-

"12. The circumstance that formalities in the matter of charge-sheeting had been observed is no reason to uphold action, when in essence there was no guilty conduct or lapses, which were of any substance. Mr. Birbal, of course, points out that the delay is not explained, nor was there any application for extension. But we have to note that the order of the High Court was not intended to be one of a peremptory nature, and a strict time schedule required to be mandatorily observed. In fact, time was not of essence taking notice of the follow up action that was expected from the applicant. The DDA need not have incorporated factors, which really were irrelevant. "

The learned counsel for the petitioner has raised the same pleas and

contentions before us. The learned counsel however, has not been able to

deny that if the High Court had granted time to builder to file a reply, then

the reply had to be considered by the respondent after it was filed. This

has also not been disputed that the builder had also submitted the copy of

the lease deed pursuant to the notice given by the petitioner, which was

dealt with by a dif ferent department. This is also not disputed that the

respondent ultimately passed the demolition order and on failure of the

builder to demolish the unauthorized construction for sealing of the

premises. In the totality of the facts and circumstances, the inf erence of

the Tribunal that there is no misconduct as no contumacious conduct has

been established against the respondent, cannot be faulted.

In the entirety of the facts and circumstances, we do not find it

appropriate to exercise our jurisdiction to dif fer with the view of the

Tribunal and set it aside the order impugned before us on the grounds as

has been raised by the petitioner.

The order of the Tribunal in our opinion does not suf fer from such

illegality or irregularity, which would require any inter ference by this Court

in exercise of its jurisdiction under Article 226 of the Constitution of

India.

The writ petition is there fore, without any merit and it is

dismissed.

ANIL KUMAR, J.

FEBRUARY 26th , 2010                              MOOL CHAND GARG, J.
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