Kamla Sharma v. North Delhi Municipal Corporation

1. 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 challenging the second demolition order dated 29.04.2015. The same was also dismissed vide impugned order dated 10.08.2016.

8. The petitioner thereafter filed an appeal under Section 347(D) of the DMC Act before the District Judge challenging the order dated 10.08.2016 of the ATMCD. This was also dismissed vide impugned order dated 10.08.2018.

9. I have heard learned counsel for the parties.

10. Learned counsel for the petitioner has vehemently relied upon the documents placed on record, namely, the survey report of the House Tax Department dated 22.03.1997 to contend that the property from basement to second floor has been in existence since long time. Hence, it is pleaded that there is no unauthorized construction and only repairs have been carried out which are mischievously sought to be shown as unauthorized construction by the respondent. Regarding the third floor, it is reiterated that it was raised in 2004 as is apparent from the house tax receipt and hence, it is protected under the National Capital Territory of Delhi Laws (Special Provisions) Second Act, 2011. He denies the findings that there is amalgamation of the two properties, namely, 8770/14B and 8771/14B. It is also strongly urged that merely because the first demolition order dated 11.09.2014 pertained only to the basement, ground floor and first floor does not imply that on 11.09.2014 second and third floor did not exist. He urges that such a reasoning is wholly incorrect.

11. A perusal of the impugned order passed by the ATMCD (this is a common order for both the properties i.e. 8770/14B Shiddhi Pura and 8771/14B Shiddhi Pura) shows that the Tribunal concluded that the third floor construction was raised after 2007 without any sanctioned building plan. The order notes that there is no document on record which shows that any construction existed earlier on the third floor. Hence, the same is not protected under the National Capital Territory of Delhi Laws (Special Provisions) Second Act, 2011 as claimed by the petitioner. The order further notes that a joint inspection was carried out of the first floor and the second floor and a report was filed. The impugned order compares the dimensions of the godowns, rooms, halls, passages, etc. as available in the house tax records i.e. the survey report relied upon by the learned counsel for the petitioner dated 22.03.1997 and also the accommodation as stated by the report filed pursuant to the survey carried out. The comparison of these two documents showed that there is a difference in the size of the rooms. There was no explanation given as to why there is a difference in the existing construction and the construction as per earlier records. The impugned order also notes that both the properties No 8770/14B and 8771/14 B are two separate properties but as per the status report/photographs/site plan, the properties have been amalgamated by the petitioner as both the properties have only one staircase and one kitchen whereas as per the house tax records both the properties have separate staircase and kitchen. It further notes that the construction has been done in such a manner that it is difficult to ascertain which portion is in 8770 and which is in 8771. The impugned order concludes that it appears all the internal walls of both the premises have been removed and re-constructed to change the size of the rooms. The entire second floor has been reconstructed by amalgamating the two properties. Hence, the order concludes that the said construction cannot be said to be as case of repair or renovation and dismissed the appeal on 10.08.2016.

12. The Appellate Authority also notes that a joint inspection of the properties was ordered to be carried out on 18.12.2014 and a detailed report as to measurement of each room floor wise was filed. Photographs of the property were also filed. The submission of the petitioner regarding the construction of the second floor and third floor of the properties being old construction which have been renovated was rejected. Regarding the third floor, the Appellate Authority noted that there is no record to show that the third floor was constructed prior to 2007.

13. I may note that the petitioner has not placed on record the report of the inspection that was carried out which have been relied upon by the impugned orders. Comparison of the dimensions as exist in the house tax record and the existing construction which was reiterated by the report along with photographs as stated by the impugned order reads as follows:-

14. Clearly there is change in the dimension of the premises now existing as compared to the previous record. There is no plausible explanation given by the petitioner. Further the new report with photographs shows that the two premises i.e. 8770/14B and 8771/14B have been illegally amalgamated. Regarding the third floor, there is nothing to show that it was constructed before 2007. Hence, there is sufficient material on record to hold that the conclusion of facts reached by the authorities/appellate authorities was a plausible finding.

15. It is a well settled law that in exercise of writ jurisdiction the High Court will not disturb findings of fact recorded by appropriate tribunal/functionaries when there is challenge to an order except in a situation where the finding can be termed as arbitrary, irrational and wholly contrary to the record on the face of it. Reference in this context may be had to the judgment of the Supreme Court in the case of Registrar General, High Court of Judicature of Madras vs. K. Muthukumarasamy, (2014) 16 SCC 555 where the Court held as follows:- “10. Undoubtedly, in the exercise of the writ jurisdiction, the High Court would have the power and competence to disturb findings of fact so long such findings are opposed to the weight of the materials on record and the view taken cannot be sustained on a reasonable consideration of such materials. This wholesome power has to be exercised by the High Courts only on a careful appraisal of the facts of a given case. Care must be taken not to act as a Court of Appeal or in review of the decisions of the fact-finding authority. The decision of this Court in Yoginath D. Bagde v. State of Maharashtra [(1999) 7 SCC 739)] relied upon by the learned counsel for the respondent is coincidentally to the above effect. It also appears to us from the order of the High Court that additional materials not produced before the enquiry officer were also considered by the learned Judges in coming to the impugned conclusions. It is, therefore, clear that the High Court had exceeded its jurisdiction in coming to the impugned findings with regard to the culpability of the delinquent and in reversing the order of compulsory retirement.”