Important Point – In absence of material particulars notice to show cause has no value in eyes of law.

HIMA KOHLI, J.

1. The petitioner is aggrieved by the order dated 15.2.2016, passed by the Lieutenant Governor, Govt. of NCT of Delhi allowing the second appeal filed by the respondent/NDMC under Section 256 of the New Delhi Municipal Council Act, 1994 (in short ‘the NDMC Act’) against an order dated 16.8.2015 passed by the Appellate Tribunal, MCD/NDMC (hereinafter referred to as the ATMCD) whereunder, the demolition order dated 7.6.2005 passed by the Chief Architect, NDMC in respect of the alleged unauthorized construction existing at the backside of Host Restaurant, F-8, Connaught Place, New Delhi, was set aside.

2. The facts leading to filing of the present petition, as gleaned from the petition, are that on 30.5.1978, the petitioner had taken on lease, the subject premises for running a restaurant under the name and style of ‘Host Restaurant’. At that time, in addition to two permanent kitchens in the subject premises, there existed a temporary kitchen behind the building, which was not a part of the tenanted premises. On 11.2.1983, the Medical Officer of Health and Licencing Authority, NDMC inspected the kitchen of the subject premises and served a notice dated 8.3.1983 on the petitioner pointing out several defects and the unhygienic condition prevailing in the kitchen. In para 1 of the said notice, a mention was made of a temporary kitchen in addition to the licensed kitchen where food articles were being cooked under unhygienic conditions and it was noted inter alia that the temporary kitchen was not completely fly-proof and flies were noticed inside. Directions were issued to the petitioner to shutdown the temporary kitchen or seek approval for operating the same under the relevant bye-laws.

3. The petitioner had replied to the aforesaid notice, vide letter dated 10.6.1983, and stated inter alia that they had removed all the defects that had been pointed out and a request was made to the authorities to undertake fresh inspection of the premises. The matter rested there till the year 1997 when the Chief Architect, NDMC served on the petitioner, a notice to show cause dated 8.8.1997 which stated that unauthorized construction had been raised in the subject premises without obtaining the requisite approval under the Building Bye Laws, and the same was liable to be sealed under Section 250 of the NDMC Act. The petitioner was required to give a reply within five days as to why the proposed action should not be taken by the respondent/NDMC. The following were details of the unauthorized constructions mentioned in the notice to show cause dated 8.8.1997:-

“Covered area m.a. 22’x20’ and 15’x10’ with the help of ACC sheets at open area back side of Host Restaurant, F-B, Connaught Place, New Delhi.”

At the bottom of the notice to show cause, was a hand drawn site plan to indicate the location of the temporarily covered area.

4. Vide reply dated 19.8.1997, the petitioner responded to the aforesaid notice to show cause, denying that there existed any unauthorized construction and asserted that the temporary structure in question is very old. To demonstrate that even as per the respondent/NDMC, a temporary kitchen was in existence for several years, reference was made to the earlier notice dated 8.3.1983 issued by the Medical Officer, Health NDMC. The petitioner stressed that they had remained in possession of the subject premises since the year 1978 and submitted three certificates issued by neighbours, who claimed to have attended the opening ceremony of the restaurant, and stated that the temporary structure in question was existing at the back of Host Restaurant from the date the said restaurant had been inaugurated on 4.2.1979. After receiving the aforesaid reply, the respondent/NDMC remained silent for almost eight years, till the matter was reopened on 7.6.2005, when the respondent/NDMC proceeded to issue an order under Section 247 of the NDMC Act holding that the temporary structure in question was unauthorized and liab