Full Judgment Text
Neutral Citation Number : 2022/DHC/004737
$~73(Appellate)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 1015/2022 & CM APPL. 42075/2022, CM APPL.
42076/2022
SHER MOHAMMAD ..... Petitioner
Through: Mr. Prashant Katara, Adv.
versus
MUNICIPAL CORPORATION OF DELHI (SDMC)
..... Respondent
Through: Mr. Tushar Sannu, Standing
Counsel for MCD
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
J U D G M E N T (ORAL)
% 09.11.2022
1. This petition, under Article 227 of the Constitution of India,
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assails judgment dated 14 September 2022, passed by the learned
Principal District & Sessions Judge (the learned Pr. DSJ), on an
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appeal preferred by the petitioner against the order dated 9 August
2021 passed by the learned Appellate Tribunal, Municipal
Corporation of Delhi (the learned AT MCD).
2. A brief conspectus of facts is necessary at the outset.
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3. On 26 September 2011, the Municipal Corporation of Delhi
(MCD) issued a show cause notice under Section 344(1) read with
Section 343 of the DMC Act, 1957 alleging that unauthorized
constructions had taken place at T-72, Village Hauz Khas, New Delhi
and calling on the owners/builders of the said property to show cause
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Signing Date:10.11.2022
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Neutral Citation Number : 2022/DHC/004737
as to why the construction be not demolished. This was followed by a
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demolition order dated 7 October 2011. The petitioner challenged the
said show cause as well as the demolition order before this Court by
way of WP(C) 773/2013 ( Sher Mohammad v. MCD ).
4. The said writ petition was disposed of by a learned Single Judge
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of this Court, by the following order, passed on 8 February 2013:
―1. Present writ petition has been filed by petitioner under
Articles 226 and 227 of the Constitution of India seeking to quash
the notices and orders dated 26.9.2011 and 7.10.2011 issued by the
respondent qua the property of the petitioner. The petitioner also
seeks a direction to the respondent to de-seal the property of the
petitioner bearing no. T-72 Part, Hauz Khas Village, New Delhi.
2. Learned counsel for the petitioner submits that one of the
main grievances of the petitioner is that the show cause notice
dated 26.9.2011 received by the petitioner is not addressed to any
person nor the description of the property in question is correct.
3. To overcome this technical objection raised by the
petitioner and to avoid multiplicity of proceeding, this matter was
passed over once to enable counsel for the MCD to issue a fresh
show cause notice in Court to the petitioner at the particulars so
produced by him.
4. At the second call, learned counsel for the petitioner
submits that the correct particulars of the owner/occupant are
―Mr.Sher Mohammad, s/o late Sh. Alimuddin, r/o T-72 Part, Hauz
Khas Village, New Delhi‖. Learned counsel for the MCD submits
that the word ―Part‖ in the above address should not be used as it
implies that the MCD has recognised the divisibility of the
property in question. It is made clear that the word ―Part‖ has only
been added with a view to avoid any technical objection, which has
been raised by the respondent, that the property in question has not
been described properly. It is made clear that no further objection
of the petitioner will be entertained on this account.
5. Counsel for the petitioner accepts the above show cause
notice. It is agreed by counsel for the parties that the notice
accepted by the counsel for the petitioner shall be treated as a
notice issued to the petitioner. Accordingly, the order dated
7.10.2011 qua the property of the petitioner in question is set aside.
Let reply to this notice be submitted by the petitioner to the
respondent within seven days from today and thereafter the
respondent will pass an appropriate order in accordance with law
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Neutral Citation Number : 2022/DHC/004737
and a copy of the order shall be served on the petitioner at the
address mentioned in the writ petition.
6. Writ petition and application stand disposed of.‖
5. The following aspects of the dispute become clear from the
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aforesaid order dated 8 February 2013:
(i) The petitioner had sought to challenge the show cause
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notice dated 26 September 2011 and the demolition order dated
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7 October 2011 on the ground that the suit property had been
wrongly described in the show cause notice and in the order.
(ii) The correct description of the suit property was T-72,
Hauz Khas Village, New Delhi. The property could not be
regarded as divisible.
(iii) No further objections, from the petitioner, to the effect
that the said address did not describe the suit property actually
was to be entertained. The petitioner, in fact, accepted the show
cause notice as having been validly issued to the petitioner and
was directed, therefore, to file a reply to the show cause notice
whereafter an appropriate order was to be passed by the MCD.
6. It appears that no order came to be passed on the said show
cause notice, which was served on the petitioner during the course of
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proceedings before this Court on 8 February 2013.
7. The suit property was again booked for demolition vide notice
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dated 9 December 2020, again purportedly in pursuance of the notice
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dated 26 September 2011, alleging further unauthorized construction
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on the suit property.
8. This order was challenged by the petitioner by way of Appeal
no. 51/2021 before the learned AT MCD, contending that there was
no valid service of show cause notice on the petitioner, as the notice
had been served on Soin Khan, who was not concerned with the suit
property.
9. The learned AT MCD, observing that, prior to passing of the
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order dated 9 December 2020, the petitioner ought to have been
heard, remanded the matter to the MCD for de-novo consideration.
10. The matter was taken up by the Assistant Engineer (Buildings)
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on 5 July 2021. The impugned order dated 14 September 2022,
passed by the learned ADJ, notes the fact that, in the said hearing, the
petitioner was represented by his son Soin Khan who, the petitioner
had alleged in the earlier proceedings, was not authorized to represent
him.
11. Soin Khan sought to contend, on behalf of the petitioner, before
the AE (Building) that the suit property stood constructed up to third
floor since 2011 and relied, in this regard, on the following status
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report, dated 16 September 2015, filed by the MCD before this Court
in WP(C) 4193/2015:
―... iii) Property No. T-72, Village Hauz Khas, New Delhi
The owner/ builder of the subject property had raised
unauthorized construction in the shape of rear portion of Second
floor (rest of building is old and occupied) without having any
prior permission/ sanction from the competent authority i.e.,
SDMC, however, action against the same has been initiated and the
said unauthorized construction has been booked vide file No.
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Neutral Citation Number : 2022/DHC/004737
115/UC/B-1/SZ/20 11 dated 26/09/2011 under section 343/344 of
the DMC Act, 1957. Sealing action under section 345-A of the
DMC Act, was also initiated vide file No. 800/Seal/B-1/SZ/11
dated 21/11/2011 and after complying with the mandatory
prov1s1ons as contained under the relevant Act, demolition/
sealing orders were passed. However, in order to execute the said
demolition/ sealing orders the demolition/ sealing programme was
fixed for 21/11/2011 and during the course of action demolished
Third floor roof, slab punctured and also balcony of Third
floor roof cut by gas cutter . After that staircase entry sealed at
Second floor (main entry) at one point on 22/11/2011. However,
during the routine inspection on 31/07/2013 by the area JE, it was
found that the seal affixed by the department/ SDMC have
tempered with by the owner/ occupier, therefore, the same resealed
on 07/08/2013, at Second floor main which was also booked vide
file No. 2/UC/B-1/SZ/14 dated 02/01/2014 under section 343/344
of the DMC Act. It is further submitted that as per the Delhi
Special Provision Act, (special Law) the construction prior to 1
June-2014 are protected and no punitive action could be taken
against the same till 31/12/2017…..‖
12. Rejecting the contentions advanced on behalf of the petitioner,
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the AE (Building) once again passed a demolition order on 23 July
2021.
13. The petitioner appealed against the said demolition order to the
learned AT MCD. The learned AT MCD held, on the basis of the
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inspections conducted on 9 December 2020 and 27 July 2021, that
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the petitioner had raised fresh constructions after 1 June 2014, being
the cut-off date in respect of which constructions made upto the said
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date were protected by Section 3(2)(ii) of the National Capital
Territory of Delhi Laws (Special Provisions) Act, 2011 .
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3. Enforcement to be kept in abeyance.—
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(2) Subject to the provisions contained in sub-section (1) and notwithstanding any
judgment, decree or order of any court, status quo— (i) as on the 1st day of January, 2006 in
respect of encroachment or unauthorised development; and (ii) in respect of unauthorised colonies,
village abadi area (including urban villages) and its extension, which existed on the 31st day of
March, 2002 and where construction took place even beyond that date and up to the 8th day of
February, 2007, mentioned in sub-section (1), shall be maintained.
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Neutral Citation Number : 2022/DHC/004737
14. Accordingly, the learned AT MCD upheld the direction to
demolish the construction raised on the third floor of the suit property.
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15. Aggrieved by the aforesaid order dated 9 August 2021, passed
by the learned AT MCD, the petitioner appealed to the learned ADJ
under Section 347D of the DMC Act.
16. It was sought to be contended, before the learned Pr. DSJ, that
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the property which forms subject matter of the order dated 8
February 2013 was different from the property which forms subject
matter of the dispute before the learned AT MCD. The petitioner
sought to submit that the property at T-72 had several units and that it
was not possible to identify the suit property precisely. It was further
sought to be contended that construction upto the third floor of the
aforesaid property existed prior to 2011 and, in any case, much prior
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to the cut-off date of 1 June 2014.
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17. By the impugned order dated 14 September 2022, the learned
Pr.DSJ has dismissed the petitioner’s appeal.
18. The learned Pr. DSJ opined that, with the passing of the order
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by this Court on 8 February 2013, the right of the petitioner to assail
the proposed demolition again on the ground that the property was not
properly identified was no longer available to it. The impugned order
further holds that there was nothing to indicate that the third floor of
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the suit property had been constructed after 1 June 2014. The
contention, of the petitioner, that the third floor of the suit property
was in existence in 2011 was rejected by the learned Pr. DSJ. In
rejecting the said contention, the learned Pr. DSJ has referred to the
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status report of the MCD as filed before this Court along with its
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affidavit dated 16 September 2015 in WP (C) 4193/2015. It was
noted that the said order referred to the demolition of the second floor
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of the suit property which had been carried out on 21 January 2011
and the demolition of the third floor slab by puncturing it.
19. In view of the provisions of the National Capital Territory of
Delhi Laws (Special Provisions) Act, 2011, the learned AT MCD held
that the petitioner could not have carried out any construction beyond
the demolished second floor of the suit property.
20. The inspection reports of the years 2020-2021 indicated that the
petitioner was carrying out construction on the third floor/terrace of
the suit property. Thus, according to the learned Pr. DSJ, the
petitioner was continuing to carry out, with impunity, further
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unauthorized constructions even after the cut-off date of 1 June 2014.
21. In that view of the matter, the learned Pr. DSJ did not deem it
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appropriate to interfere with the impugned order dated 9 August
2021 passed by the AT MCD.
22. The petitioner has invoked the jurisdiction of this Court under
Article 227 of the Constitution of India assailing the aforesaid order
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dated 14 September 2022 of the learned Pr. DSJ.
23. Mr. Tushar Sannu, learned Standing Counsel for the MCD, has
advanced a preliminary objection regarding the maintainability of the
present appeal. Mr. Sannu submits that the present petition would not
lie in view of Section 347D (3) of the DMC Act. Section 347D (3) of
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the DMC Act reads thus:
― 347D. Appeal against orders of Appellate Tribunal.—
(1) An appeal shall lie to the Administrator against an
order of the Appellate Tribunal, made in an appeal under
section 343 or section 347B, confirming, modifying or
annulling an order made or notice issued under this Act.
(2) The provisions of sub-sections (2) and (3) of section
347B and section 347C and the rules made thereunder,
shall, so far as may be, apply to the filing and disposal of an
appeal under this section as they apply to the filing and
disposal of an appeal under those sections.
(3) An order of the Administrator on an appeal under
this section, and subject only to such order, an order of the
Appellate Tribunal under section 347B, and subject to such
orders of the Administrator or an Appellate Tribunal, an
order or notice referred to in sub-section (1) of that section,
shall be final. ‖
24. Mr. Sannu submits that as Section 347D makes orders passed
by the learned District Judge, on an appeal against the order passed by
the learned AT MCD, final, a writ petition against such an order
would appropriately lie under Article 226 of the Constitution of India
and not under Article 227 of the Constitution of India.
25. The availability of a remedy under Article 226 of the
Constitution of India does not unquestionably foreclose a remedy
under Article 227. The scope and ambit of the two provisions are
markedly different. Article 227 of the Constitution of India only
confers superintending – or, more appropriately, supervisory -
jurisdiction on the High Court. The High Court does not, under Article
227, judicially review the order passed by the hierarchically lower
authority. Nor does it examine the correctness or otherwise, of the
said order. It is only where the manner in which the lower judicial
authority has acted calls for supervisory correction that the High Court
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would step in under Article 227 of the Constitution of India. It is for
this reason that the order of the lower authority is classically regarded
as final both on facts as well as in law, insofar as the writ jurisdiction
vested in the court under Article 227 the Constitution of India is
concerned.
26. Errors which are manifestly perverse or which result in serious
and irreparable prejudice to the parties alone are amenable to
challenge under Article 227. The Supreme Court, in the following
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passages from Ibrat Faizan v Omaxe Buildhome , has sounded a note
of caution where a party seeks to avail under Article 227 of the
Constitution of India even when other remedies may be available:
― 28. The scope and ambit of jurisdiction of Article 227 of the
Constitution has been explained by this Court in the case of
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Estralla Rubber v. Dass Estate (P) Ltd ., which has been
consistently followed by this Court (see the recent decision of this
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Court in the case of Garment Craft v. Prakash Chand Goel ).
Therefore, while exercising the powers under Article 227 of the
Constitution, the High Court has to act within the parameters to
exercise the powers under Article 227 of the Constitution. It goes
without saying that even while considering the grant of interim
stay/relief in a writ petition under Article 227 of the Constitution of
India, the High Court has to bear in mind the limited jurisdiction of
superintendence under Article 227 of the Constitution. Therefore,
while granting any interim stay/relief in a writ petition under
Article 227 of the Constitution against an order passed by the
National Commission, the same shall always be subject to the
rigour of the powers to be exercised under Article 227 of the
Constitution of India.‖
27. One may also refer to the following passage from Sadhana
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Lodh v. National Insurance Co. Ltd. in this regard:
―7. The supervisory jurisdiction conferred on the High Courts
under Article 227 of the Constitution is confined only to see
whether an inferior court or tribunal has proceeded within its
2
2022 SCC Online SC 620
3
(2001) 8 SCC 97
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2022 SCC OnLine SC 29
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(2003) 3 SSC 524
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parameters and not to correct an error apparent on the face of the
record, much less of an error of law. In exercising the supervisory
power under Article 227 of the Constitution, the High Court does
not act as an appellate court or the tribunal. It is also not
permissible to a High Court on a petition filed under Article 227 of
the Constitution to review or reweigh the evidence upon which the
inferior court or tribunal purports to have passed the order or to
correct errors of law in the decision.‖
28. Within the parameters of the limited jurisdiction vested in this
Court by Article 227 of the Constitution of India, I do not see any case
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for interfering with the impugned order dated 14 September 2022,
passed by the learned ADJ in MCD Appeal 01/2021. It is now nearly
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ten years since the order dated 8 February 2013 was passed by this
Court in WP(C) 773/2013. It is time that a quietus was arrived at and
the dispute set at rest. Unauthorized constructions are a bane to
orderly development of the city, which is already bursting at its seams,
and cannot be allowed to continue to stand in perpetuity.
29. Accordingly, the present petition is dismissed in limine, with no
order as to costs.
C. HARI SHANKAR, J.
NOVEMBER 9, 2022
dsn
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