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2020 Supreme(Del) 1339
IN THE HIGH COURT OF DELHI AT NEW DELHI
Jayant Nath, J.
Kamla Sharma - Appellant
Versus
North Delhi Municipal Corporation - Respondent
Writ Petition (Civil) No. 9846 of 2018, 9824 of 2018, 9835 of 2018; Civil Miscellaneous Application No. 38370 of 2018, 38371 of 2018, 38264 of 2018, 46101 of 2018, 38298 of 2018, 46102 of 2018
Decided On : 06-05-2020
R.K. Saini, Advocate, Ankit Singh, Advocate, Puja Kalra, Advocate, Vidur Kamra, Advocate, Jyoti Taneja, Advocate, Renu Gupta, Advocate, Nirmalya Shukla, Advocate
The main legal point established in the judgment is that findings of fact will not be disturbed unless they are arbitrary, irrational, or wholly contrary to the record. Additionally, the judgment emphasizes the need for seeking permission to file a fresh appeal after withdrawal of a suit or appeal.
Headnote:
Unauthorized Construction - Property Dispute - DMC Act, Section 344 - National Capital Territory of Delhi Laws (Special Provisions) Second Act, 2011 - The court discussed the unauthorized construction of the property and the relevant provisions of the DMC Act and the National Capital Territory of Delhi Laws (Special Provisions) Second Act, 2011. The court emphasized the importance of sanctioned building plans and the consequences of unauthorized construction. The court upheld the findings of the authorities and appellate authorities based on the facts and material on record.
Fact of the Case:
The petitioner sought to challenge the show cause notice, demolition orders, and subsequent appellate orders related to unauthorized construction on the property. The petitioner claimed that the construction was not unauthorized and relied on survey reports and tax receipts. The authorities found discrepancies in the construction and amalgamation of properties, leading to the dismissal of the appeals.
Finding of the Court:
The court found that the authorities' conclusions were based on plausible findings and there was no illegality or manifest error to warrant interference. The court dismissed the petition and pending applications.
Issues: The issues revolved around the unauthorized construction of the property, reliance on survey reports and tax receipts, amalgamation of properties, and the dismissal of appeals.
Ratio Decidendi: The court emphasized that in exercising writ jurisdiction, findings of fact would not be disturbed unless they are arbitrary, irrational, or wholly contrary to the record. The court also highlighted the principles of withdrawal of suits and the need for seeking permission to file a fresh appeal.
Final Decision: The petition was dismissed, and pending applications were also dismissed.
JUDGMENT
Jayant Nath, J. - This writ petition is filed by the petitioner seeking to impugn the show cause notice dated 15.09.2014, the demolition order dated 29.04.2015, the order of the ATMCD dated 10.08.2016 and the order of the Appellate Authority dated 10.08.2018.
2. The case of the petitioner is that the property bearing No. 8770/14B, Shidi Pura, Karol Bagh, Delhi (measuring 85 sq. yards) was purchased by Late Sh.Prem Nath Shrama, husband of the petitioner on 20.09.1982. Prior to the said property, he had also purchased the adjacent property bearing No. 8771/14 B (measuring 160 sq. yards) on 28.10.1972. Sh. Prem Nath Sharma died on 11.05.1996. Pursuant to a Will, the petitioner became the absolute owner of the two properties.
3. It is further stated that the said property No. 8770/14B was built up to first floor when the property was purchased in 1982. After purchase of the property, Sh. Prem Nath Sharma constructed a basement and second floor and made alterations on the ground floor. Reliance is placed on a survey carried out by the House Tax department on 01.04.1968 and 22.03.1997. Hence, it is claimed that since April 1996 the property comprises basement, ground floor, first and second floor.
4. It is stated that due to old age construction and ordinary wear and tear, the property required extensive repairs. The respondent vide its letter dated 26.05.2014 is said to have permitted the petitioner to carry out repairs stating that no permission for repair is required.
5. The construction on the third floor was raised in 2004 which was not pursuant to any sanctioned building plan. However, reliance is placed on the National Capital Territory of Delhi Laws (Special Provisions) Second Act, 2011 to claim that the same is not liable to be demolished.
6. It is further claimed that the respondent issued a vague show cause notice on 15.09.2014 stating that there is unauthorized construction in the shape of second floor and third floor. The petitioner filed a detailed reply to the said show cause notice. It is claimed that ignoring the reply, the respondent passed the impugned demolition order dated 29.04.2015.
7. I may look at the demolition order. The said demolition order dated 29.04.2015 notes that the unauthorized construction of basement, shops at ground floor and first floor were noticed by the Department on 01.09.2014 and the same were booked. The demolition order was passed on 11.09.2014 as per law for the said portion of the property i.e. basement, ground floor and first floor. The record shows that prior to the demolition order dated 11.09.2014 a work stop notice was issued under Section 344 of the DMC Act on 26.08.2014 but the petitioner did not desist and continued to raise construction unauthorisedly. It is stated that when the first show cause notice dated 01.09.2019 was issued it pertained only to the basement, ground floor and first floor. It is manifest that there was no second floor and third floor in existence at that time and so the said first show cause pertained to only the basement, ground floor and first floor. At that stage as no second floor and third floor existed, the first demolition order did not cover the said floors. The order further notes that there is nothing to show when the basement was constructed in the existing building originally. The plea that property tax was paid on the basement was not accepted as the documents of house tax payment did not give the description and form of the basis of calculation. The said order concludes that the entire fresh construction from the basement to third floor has been raised unauthorisedly without any sanctioned plan. It was further held that the earlier order of demolition dated 11.09.2014 for basement, ground floor and the first floor had attained finality. Hence, the order concludes that the second and third floors have been unauthorisedly constructed. The same were directed to be demolished.
An appeal was filed before the ATMCD by the petitioner challe
