Delhi High Court
Manju Bhatia vs New Delhi Municipal Council on 6 September, 1996
Equivalent citations: 1996IVAD(DELHI)141, 63(1996)DLT894, 1996(39)DRJ58, 1997 A I H C 588, (1997) 3 RECCIVR 362, (1996) 63 DLT 894, (1996) 39 DRJ 58, (1998) 1 LANDLR 265
Author: Manmohan Sarin
Bench: M.J. Rao, Manmohan Sarin
JUDGMENT
Manmohan Sarin, J.
(1) Appellants, who claim to be owners and in possession of Flat No.11-E on the 11th Floor of property bearing Municipal No.10, Bhagwan Dass Road, New Delhi, popularly known as ‘White House’ building, have filed this Letters Patent Appeal against the order of the learned Single Judge, dismissing Civil Writ Petition No.3135 of 1996 and CM.5502/96 vide order dated 20.8.1996.
(2) The appellants had filed an appeal bearing No.307-AT/96 before the Appellate Tribunal, M.C.D.against the demolition order passed by the Chairperson, N.D.M.C. dated 17.7.1996 for demolition of four upper floors of the White House building. The appeal was dismissed by the Appellate Tribunal vide a common order dated 26.7.1996 by which the appeals of the owners and another flat owner were also dismissed. An appeal bearing No.40/96-CA was preferred by the appellants against the Appellate Tribunal’s order before the Lt.Governor, who dismissed the same vide a common order dated 16.8.1996 by which the appeal of the owner/builder was also dismissed. The appellants had filed CW.3130/96 challenging the orders dated 26.7.1996 and 16.8.1996, which, as noted above, was dismissed by the learned Single Judge.
(3) The learned Single Judge, while dismissing the writ petition, noticed that the four floors had admittedly been constructed without any sanctioned plan and, therefore, did not find any justification to interfere in the exercise of jurisdiction under Article 226 of the Constitution. The learned Single Judge also noticed that the Civil Writ Petitions bearing Nos.2891/96 and 2785/96 that had been filed by other flat owners had been dismissed by this court. The appellants in the appeal pray for quashing and setting aside of orders of the Administrator, Appellate Tribunal, M.C.D., the Lt.Governor and of the learned Single Judge. Directions/declaration is also sought that the four additional floors be declared to be in accordance with guidelines of 8.2.1988 and building norms.
(4) Normally in the exercise of appellate writ jurisdiction, we would not have dealt with numerous questions of fact and law sought to be urged before us. This is especially so since the appellate Tribunal and Lt. Governor have in their well reasoned orders comprehensively dealt with the submissions made. However, we find that with regard to this property, a number of petitions and suits in this Court as well as proceedings in other forum are being filed by the purchasers of flats, owners and the builder, resulting in multiplicity of proceedings. In these circumstances, we consider it appropriate that an authoritative pronouncement covering all legal aspect is made by this Court and have therefore opted for a detailed discussion on the pleas raised.
(5) Here are the facts leading to the filing of the present appeal.
(6) The appellants, who are husband and wife, entered into an agreement dated 10th November, 1988 for purchase of flat bearing No.11-E on the 11th Floor of the White House, with M/s.Taj World Fame Builders, Promoter Builder and Power of Attorney holder of the owners. The appellants claim to have paid the entire consideration and are in physical possession of the said flat.
(7) The builder, acting as the attorney of the owners, on 28.9.1984 had applied for the sanction of building plans for basement, ground floor and seven floors. Plans were sanctioned on 21.11.1984 with basement, ground floor and seven floors with a maximum height of 80 ft. and F.A.R. of 150 ft.
(8) On 17.10.1985, the Government of India put a temporary ban on construction of multi- storeyed buildings in Delhi and New Delhi pending the finalisation of Master Plan 2001. Multi- storeyed building being a building beyond 45 ft. in height or having more than four storeys with lift.
(9) The builder applied for and obtained revalidation of the plans on 4.2.1988. On 8.2.1988, the ban imposed on 17.10.1985 was partially lifted, with the Ministry of Urban Development issuing guidelines in terms of which, inter alia, the maximum permissible Far for Group Housing (residential areas) was raised to 250 from 150, subject to the other terms and conditions stipulated therein. Vide a letter dated 12.8.1988, the Government of India issued an office memorandum clarifying that the guidelines dated 8.2.1988, before they come into force, would have to be translated into bye-laws by the respective local bodies. Further, that the amendment/alteration of the byelaws can be done only after following the prescribed statutory procedure.
(10) The builder, with a view to obtain the benefit of the guidelines of 8.2.1988, applied for modification of the plans on 22.11.1988, based on Far of 250, which included construction of the extra floors. These plans were rejected vide order dated 1.12.1988 by the respondent N.D.M.C. Though this order was appealable, no appeal had been preferred against it. In the event, the builder got the original plans of basement, ground floor + seven floors revalidated on 1.12.1988 and thereafter upto 20.11.1990. The builder/owner despite the rejection constructed the four additional floors unauthorisedly and illegally. The respondent Ndmc issued on 20.4.1990 notice under Section 195 of Punjab Municipal Act. The respondent Committee claims that property was sealed on 18.12.90 but the same was broken and occupied by builder.
(11) The owners had instituted a suit for permanent injunction bearing S.No-310/90 in this Court, in which an interim injunction was obtained on 5.2.1990, restraining the Ndmc from interfering with the on-going construction work. The owner also moved an application for quashing the notice issued under Section 195 of the Punjab Municipal Act. An interim application, viz. IA.10985/90 for contempt was also moved in the said suit. The learned Single Judge took the view that if the building or part thereof had been constructed unauthorisedly but the construction was within the permissible Far, the same will have to be compounded by the N.D.M.C. under the bye-laws. The plaintiff/owner was also given permission to give finishing touches to the extra floors. It was clarified in the order that if the construction raised by the plaintiff fell within the ambit of compoundable limits and otherwise conformed to the building bye-laws, the N.D.M.C. would compound the same as per the mandate of bye-laws and payment of compounding charges, subject to the owner making a request therefor, (12) The aforesaid suit alongwith the other suit that had been filed by another purchaser of the flat, were transferred to the District Court. In the event, the suits were dismissed by the learned Additional District Judge, holding the same to be barred and not maintainable. The guidelines dated 8.2.1988 were also withdrawn by the Central Government on 22.6.1990. In the meanwhile, the applications of the builder for grant of Completion Certificate had also been rejected on 26.3.91 & 23.9.91.
(13) The appellants in the present appeal had also filed a suit for grant of temporary Occupation Certificate and grant of connection for electricity on 5.5.1993. The Civil Judge had given directions to the respondent Ndmc for grant of temporary Occupation Certificate/electricity. On an appeal filed by the Ndmc, the said order was set aside on 26,7.1995 by the Senior Civil Judge in Mca No.l37/93, holding inter alia that the occupation of the flat by the occupants was unlawful, being in contravention of the bye-law 7.51. The appellants claim that the Transfer Duty in respect of the flat for its mutation, has been paid to the Respondent Ndmc and have enclosed the receipts therefor, (appearing at page 141 of the paper book). There is also a notice issued under Section 65 of the Punjab Municipal Act, to the Taj World Fame Builders, but through the appellants.
(14) Following the dismissal of the suit, demolition order dated 17.7.1996 had been passed in respect of 8th, 9th, 10th and 11th Floors and constructed area on 12th floor, based on the notices dated 20.4.1990 and 10.4.1992 that had been served on the builder as the attorney of the owners.
(15) In the light of the foregoing facts, learned counsel for the appellants has made the following submissions: i. The appellants are the ‘owners’ as per the definition of ‘owner’ given .in the New Delhi Municipal Council Act, 1994 and are recognised as such by the respondent Ndmc by acceptance of transfer duty charges. The demolition order passed was vitiated, illegal and without jurisdiction in the absence of the show cause notice under Section 247 of the New Delhi Municipal Council Act. ii. The demolition order does not give reasons and is, therefore, illegal. Its validity in the Appellate jurisdiction ought to have been judged only on the reasons contained in the order and reasons to make good the order cannot be added subsequently. iii. The additional four floors were constructed in accordance and in conformity with the guidelines of 1976 and 1988. The guidelines permitted Far of 250. The Master Plan and Bye-laws do not lay down any Far so far as Zone 3 is concerned. The guidelines issued by the Central Government under Section 41 of the Delhi Development Act and Appendix ‘J’ of the bye-laws have the force of law. The guidelines though withdrawn in June 1990 would not affect action taken in pursuance of such guidelines before they were withdrawn. Besides the guidelines of 1988 were still being followed by the respondents. The compounding of the building is mandatory as the building is constructed according to the guidelines and the bye- laws. The demolition order has been passed without even considering the representation of the flat owners. iv. Directions given by the Single Judge on 9.1.1991 for compounding of extra floors constructed if the same fell within compounding limits and conformed to bye- laws were binding. The interim order was passed by the learned Single Judge of this Court in CCP.43/90 filed in Suit No.110/90. The order, accordingly, does not merge in the suit and retains its separate entity, even on the dismissal of the suit by Shri Kuldip Singh, Additional District Judge. V. The appellants are bonafide purchasers and have put in huge investments. Equity would lie with the additional construction being regularised, especially in view of the guidelines and the fact that the construction had been done all along within the knowledge of the respondent NDMC.
(16) Before we deal with the specific submissions made by learned counsel for the appellant, it is significant to notice that the builder had applied for modification of the plans to raise 12 floors as against the sanctioned plan of basement, ground floor + seven floors. This had been done pursuant to the issuance of the guidelines on 8.2.1988. This plan was rejected on 1.12.1988. this order was not appealed against. Accordingly, the construction that had been raised is, admittedly, unauthorised and without any sanctioned plan. Rather, it has been raised despite the rejection of the plan for 12 floors. Point No.1 “The appellants are the ‘owners’ as per the definition of ‘owner’ given in the New Delhi Municipal Council Act, 1994 and are recognised as such by the respondent Ndmc by acceptance of transfer duty charges. The demolition order passed was vitiated, illegal and without jurisdiction in the absence of the show cause notice under Section 247 of the New Delhi Municipal Council Act.” Learned counsel for the appellants relies on the definition of “owner” as given in the Ndmc Act as well as in the Dmc Act, to urge that the same is wide enough to include persons, such as the appellants, who are in possession pursuant to an agreement to purchase and who have paid the full consideration. The appellants have produced photocopies of the receipts showing payment of transfer duty. Reliance is also placed on a notice under Section 65, addressed to Taj World Fame Builders through the appellants. The appellants have not produced on record any application seeking mutation in their favour. It is argued that the demolition order is vitiated by the non-issuance of show cause notice to the appellants.
(17) Mr. Ravinder Sethi, learned senior counsel for the respondents, has urged that the notice under Section 65 of the Punjab Municipal Act was addressed to the builder and the appellants cannot draw any advantage out of it. Besides the endorsement on the notice specifically excluded conferment of any legal right or validation of unauthorised construction by the said notice. In Anz Grindlays v. Commissioner of Mcd & Ors. (1995 Ii Ad (Delhi) 573) a learned Single Judge of this Court held that subsequent purchasers/transferees are not entitled to a show cause notice, not being the person at whose instance the construction was either commenced or completed. However, being an aggrieved person they were entitled to prefer appeal before the Appellate Tribunal. Appellants rely on the decision in the case of Dr.R.A. Bhujwala v. Mcd & Ors. (in FAO(OS).271/95 a judgment by Division Bench of this Court, wherein purchaser was held entitled to a notice. No notice under Section 343 of the Dmc Act had been served on him. We find from record that Mcd took the stand that unauthorised construction had been carried out by the original owner, to whom notice had been sent. No notice was, therefore, required to be sent to Dr.Bhujwala. However, in the notice under Section 349 of Dmc Act calling upon Dr.Bhujwala to vacate the premises, it was stated that unauthorised construction had been carried out by him. Besides a notice under section 126 describing him as the owner had also been sent. The case is, therefore, distinguishable and has to be confined to its facts.
(18) It would be pertinent to notice that a Division Bench of this Court, comprising R.C. Lahoti, and S.N. Kapoor, JJ., while dealing with similar objections in respect of this very property by another purchaser in the case titled Pawan Pratap & Anr. v. New Delhi Municipal Council (Civil Writ Petition No.2785/96 decided on 5.8.1996, held as under: “As regards the contention about the non-issuance of notice to the petitioners, it would suffice to say that under Section 195 of the Punjab Municipal Corporation Act if any construction had been raised without sanction, the Committed was supposed to deliver notice to the owner within six months from the completion of the building and required the building to be altered or demolished, as it may deem necessary, within the period specified in the notice. The Section did not require that notice should be given to every transferee after giving notice to the owner/builder.”
(19) It was further observed: “If the law itself did not provide any notice to the owner/builder under Section 195 of the Punjab Municipal Corporation Act and Section 247(1) of the Ndmc Act, one could understand that principles of natural justice and fair play had not been adopted. But if it is contemplated that every subsequent transferee or occupier is required to be given notice at every step, then it would just amount to allowing raising of the construction unauthorisedly and thereafter bringing one person after the other in the family or his successor in interest to file suits and petitions. The logic of principles of natural justice, should not be stretched to illogicality, more so in matters like the present one.”
(20) We are in agreement with the aforesaid observations. In the present case, it is not in dispute that the owner/builder had been served with requisite notices, dated 20.4.1990 and 10.4.1992. No replies were sent by the said owners/builder to the show cause notices. Moreover, applying the ratio of Anz Grindlays case (Supra), persons such as appellants, who may not be entitled to a notice, were at best entitled, as an aggrieved person, to prefer an appeal against the order of demolition/sealing, as the case may be. The appellants have chosen and availed of the remedy of appeal before the Appellate Tribunal, MCD. It was open to the appellants to take all the grounds which they could have urged in reply to a show cause notice, while assailing the order of demolition. The order of the Appellate Tribunal, Mcd has dealt with numerous submissions made on merits by the appellants. In fact, even before us the matter has been argued and appellants have urged all possible grounds in support of their case. No prejudice whatsoever has been suffered by the appellants, even assuming that notice ought to have been given to them, in as much as they have had opportunity to urge their case, on all points, before the Additional District Judge and before us.
(21) We may also observe that the court in exercise of writ jurisdiction is not obliged to and can decline to entertain a plea of lack of jurisdiction, if satisfied that there has been no failure of justice as in this case. In view of the fact that there has been no mutation in favour of the appellants and the appellants had not been recognised as owners by the respondent Ndmc, the despondent Ndmc was not obliged to serve a notice on every subsequent purchaser/ transferee, as held in Anz Grindlays (Supra) and also in the case of Pawan Pratap (Supra). Besides, there has been no failure of justice in this case. Accordingly, we find no merit in the submission. Point No.2: “The demolition order does not give reasons and is, therefore, illegal. Its validity in the Appellate jurisdiction ought to have been judged only on the reasons contained in the order and reasons to make good the order cannot be added subsequently.”
(22) A perusal of the demolition order shows that the order clearly mentions the show cause notices that had been issued and served on the attorney for the owners, to which no reply had been filed. It sets out the extent of unauthorised construction that had been carried out. It also records that the suits that had been filed, based on which a restraint order had been passed against sealing as well as demolition of the unauthorised structure, which have since then been dismissed. It is stated that the unauthorised constructions from 8th to 11th floor and specified area of 12th floor, was beyond the sanctioned plan and in violation of the provisions of the Punjab Municipal Act and building bye-laws. The order succinctly and precisely sets out the extent of unauthorised construction and recites the show cause notice that had been issued earlier, which were not replied. The submission, therefore, that the order is devoid of reasons has no substance. The requirement to give a brief statement of reasons. The fact that the Mcd Appellate Tribunal has comprehensively dealt with the submissions made by the appellants and the owner/builder cannot be urged as a ground for attacking the demolition order as being devoid of reasons. Point No.3:
“The additional four floors were constructed in accordance and in conformity with the guidelines of 1976 and 1988. The guidelines permitted Far of 250. The Master Plan and Bye-laws do not lay down any Far so far as Zone 3 is concerned. The guidelines issued by the Central Government under Section 41 of the Delhi Development Act and Appendix ‘J’ of the bye-laws have the force of law. The guidelines though withdrawn in June 1990 would not affect action taken in pursuance of such guidelines before they were withdrawn. Besides the guidelines of 1988 were still being followed by the respondents.”
“The compounding of the building is mandatory as the building is constructed according to the guidelines and the bye- laws. The demolition order has been passed without even considering the representation of the flat owners.”
(23) Learned counsel for the appellants submitted that building as constructed fell within the Far of 250, as was allowed in tern’s of the guidelines dated 8.2.1988. These guidelines had the force of law and had been followed by the Ndmc and Mcd as is. evident from various legal proceedings. Mr. Anand submitted that after the ban on construction of multi-storeyed buildings with over four floors and upto a height of 45 ft. only in October 1985, the guidelines on 8.2.1988 had lifted the ban on high rise buildings and permitted Far of 250 instead of 150 with coverage of 25%. The withdrawl of the said guidelines vide memorandum of 22.6.1990, which clearly mentioned “with immediate effect” was prospective and would not affect the actions taken earlier. Mr. Anand relied on Annexure ‘J’ of Building Bye-laws 1983, which provides as under: “THEuse, coverage, Far, set backs, open space, height, number of storeys, parking standards etc. for various categories of buildings shall be as per the provisions contained in Master/Zonal Plan and the amendments made in those from time to time. Wherever the provision of Master Plan/Zonal Plan are silent on such issue or which require interpretation, the norms as decided by the competent authority shall apply.”
(24) Mr. Anand submits that Master Plan is silent on Far and, therefore, the norms decided by the competent authority by issuing the guidelines would apply. It is urged that the construction made during the currency of the guidelines of 1988, the applicable criteria ought to be 250 Far and if the same is applied to the additional four floors constructed without sanctioned plan, the same would be within compoundable limits and deserve to be regularised.
(25) Reliance is placed by learned counsel for the appellants on the decisions in Ravindra Properties Pvt.Ltd. v. Union of India & Ors. , Ansal Properties and Industries Pvt.Ltd. & Anr. v. D.D.A. and others (1993 (supp.) (1) Scc 61), N.D.M.C. v. Inder Narain & Ors. (ILR 1970(2) Delhi 307), Municipal Committee, Delhi v. Narain Dass (AIR 1930 Lahore 537), and Sayeed Muzaffar Ali & Ors. v. M.CD (1995 (supp.) 4 Scc 426).
(26) Mr. Ravinder Sethi, counsel for the respondents, submitted that the appellants, who claim to be the owners of the flat, have stepped into the shoes of the previous owner and builder. The conduct of the builder and owner has been of sheer defiance of law. Despite a specific rejection of the plan and no appeal having been preferred against the said order, the unauthorised construction was blatantly carried out. Besides, Mr. Sethi submitted, that the provisions of Appendix ‘J’ could only be utilised if the Master Plan is silent. In the instant case the Master Plan has specifically provided Far of 150 in the case of group housing where the gross residential density per acre was 150 with maximum coverage of 35%. The plans were sanctioned on this basis and the Master Plan cannot be changed by guidelines. The Master Plan could only be amended as per the statute, i.e. the Delhi Development Act. The guidelines could not over-ride the Master Plan. There has been no amendment of the Master Plan in accordance with the provisions of the Delhi Development Act. No bye-laws or rules have been framed contrary to the Master Plan. There has been no prior publication or modification of the Master Plan. Besides, as early as 12.8.1988, it was clarified that the guidelines of 8.2.1988 would come into force only when converted into bye-laws. Accordingly, the guidelines of 8.2.1988 alongwith the clarification of 12.8.1988 could be of no help to the appellants to claim any right on the said basis. There is force in the submissions of Mr. Sethi. The appellants cannot draw any advantage out of the guidelines of 8.2.1988, which were made subject to the coming into force of the bye-laws vide memorandum dated 12.8.1988. It is not the appellants case that the construction was raised during this interregnum period of 8.2.1988 and 12.8.1988, when the guidelines of 8.2.1988 could be said to be in force. It goes without saying that if the guidelines of 8.2.1988 have the force of law, the same would apply to the guidelines and the clarifications issued on 12.8.1988.
(27) Reference by the Ndmc to the guidelines of 8.2.1988, while dealing with the cases of bungalows in Lutyen’s Zone and other legal proceedings, would not advance the appellants’ case regarding the applicability of the guidelines. Mr. Sethi points out that the guidelines with regard to the Lutyen’s Zone are in conformity with the provisions of the Master Plan, while the same cannot be said with regard to the provisions of 250 Far in the guidelines, while the Master Plan provided only for 150 FAR. Learned Counsel for the respondent has stated before us that no multi-storeyed building for residential purposes with Par of 250 has been sanctioned. Moreover, the striking feature of this case is the specific rejection of the plan for the construction of extra floors. Accordingly, the appellants could not have raised the said unauthorised construction. This Court in the case of Anil Kumar Khurana v. Mcd (1996 I Ad (Delhi) 749) has held that the Court would not come to the aid of a tenant who defies the law and has indulged in blatant unauthorised construction. The Court observed: “The public interest demands that the court should not come to the aid of those who break the law with impunity and put up commercial complexes on the land meant admittedly for residential use. These complexes are put up and spaces purchased for petty commercial considerations without any regard to the hardship and inconvenience of other citizens.”
(28) The petitioners in the case of Ravindra Properties Pvt.Ltd. (supra) had challenged the ban on the .construction of multi-storeyed buildings imposed on 17.10.1985, pending finalisation of Master Plan 2001. The guidelines issued on 8.2.1988 also came up for consideration before the Court. The petitioners contended that the ban on multi-storeyed construction imposed on 17.10.1985, was invalid being administrative in nature and could not over-ride the provisions of Punjab Municipal Act enabling the Committee to sanction the plans as per its norms. The validity of the aforesaid guidelines was upheld. This case would not advance the appellants’ case since the case of the respondents is that the guidelines of 8.2.1988 were subject to the clarifications issued on 12.8.1988 and the guidelines were not translated into bye-laws, as required. The Master Plan was also not amended.
(29) Learned counsel for the appellants next then relied upon the case of Ansal Properties and Industries Pvt.Ltd. (Supra). The Court in this case had repelled the petitioner’s contention of there being a deemed sanction of the plans sent to Dda for approval in view of the provisions of bye- law 6.74 having not been followed and the temporary ban on construction of multi-storeyed buildings without imposed in 1985. The building had been constructed without sanction or permission at the risk of the petitioner under stay from the High Court. The Apex Court held that the building or part thereof constructed without sanction, as required under the building byelaws will be considered as a construction made unauthorisedly and the same can be compounded. Mr. Anand argues that his case is similar to the Ansal’s case and, therefore, the construction of four additional floors is liable to be compounded. It may be noticed here itself that the provision of compounding is available only if the building or part thereof, so constructed, otherwise conforms to the provisions contained in the building bye-laws and Master/Zonal plan regulations. In the instant case the Master Plan provided for Far of 150 and, as such the norms, as per the guidelines, which even otherwise were subject to clarification of August 1988, would not apply. It may be noticed that in Appendix ‘Q’ to the bye-laws, in the list of ‘non-compoundable’ items, are ‘FAR’, ‘height of building’ and ‘number of floors’. Furthermore, per Appendix ‘Q’ in the list of compoundable items, un- authorised construction is liable to be compounded provided the construction otherwise conforms to the provisions contained in the building bye-laws .and the Master/Zonal Plan regulations. In the Ansal’s case the unauthorised construction was found to be in conformity with the bye-laws and Master/Zonal Plan regulations and, hence, compoundable.
(30) Learned counsel next referred to Ndmc v. Inder Narayan and Others (Supra). In this case, the respondents had covered 50% floor area against the permissible 35% on the second floor. Contrary to the Zonal Development Plan as also to the Bye Laws of the appellants committee i.e. N.D.M.C. The Committee had, however, condoned the breach on payment of Rs.4 lacs as compounding fee by a resolution passed by it. However, since the second proviso required demolition to avoid proviso of a building scheme drawn up under Section 192. The Court reached the conclusion that this was not case of contravention of a building scheme contemplated under Section 192 of Punjab Municipal Act and as such the case was not covered by the second proviso and the Committee was not debarred from compounding the extra coverage. The case is completely distinguishable on facts as in the instant case there was a specific rejection of the plans to construct four additional floors. At that time, the Unified Delhi Building Bye Laws 1983 had not even come into force. No assistance accordingly be drawn from this case. Learned counsel next relied on Municipal Committee, Delhi v. Narain Dass (Supra). In the reported case, the permission had been granted to rebuild the house with the condition that no building would be constructed within four feet of the middle of street on the East or the South. There was non compliance by the plaintiff resulting in the M.C.D. ordering demolition of the building. Plaintiff filed a suit for injunction. The Court .granted an injunction holding that the passage to the South of the house was not a street since the same was used only by the occupiers of those houses. The Court was concerned with the above question. The case has no relevance to issues involved in the present appeal.
(31) Learned counsel relied on the observations of the Apex Court in Syeed Muzaffar Ali And Others v. M.C.D. (Supra) to the effect that “The more departure from the authorized plan or putting up a construction without sanction does not ipso facto and without more necessarily and inevitably justify demolition of the structure. There are cases and cases of such unauthorized constructions. Some are amenable to compounding and some may not be. There may be cases of grave and serious breaches of the licensing provisions or building regulations that may call for the extreme step of demolition.”
(32) These observations were made while the Court rejected the petitioner’s contention that the structural changes made by them did not amount to construction. The Apex Court permitted the petitioner to move the authorities for seeking regularization within a week and stayed the demolition for one 70 week. The above authority would not advance the appellants’ case since, the appellants’ case falls in the later category of cases which are not amenable to be compounded and are grave and serious breaches of building regulation justifying demolition. Point No.4: “Direction given by the Single Judge on 9.1.1991 for compounding of extra floors constructed if the same fell within compounding limits and conformed to bye- laws were binding. The interim order was passed by the learned Single Judge of this Court in CCP.43/90 filed in Suit No.110/90. The order, accordingly, does not merge in the suit and retains its separate entity, even on the dismissal of the suit by Shri Kuldip Singh, Additional District Judge.”
(33) Learned counsel for the appellant submitted that the respondent-committee had not complied with the directions given in the interim order passed in Ccp 43/90 in Suit No.llO/90 requiring the committee to consider the case of the extra four floors for compounding as set out in para 8 hereinbefore. It is urged that the dismissal of the suit would not make any difference as the interim order was passed in a contempt petition which retained its exclusive character and entity and would remain alive even after dismissal of the suit by Sh. Kuldeep Singh, Additional District Judge and the dismissal of the regular first appeal filed against the said order by this Court. The said submission is without any merit. The order was passed in a contempt application, though registered as a Ccp had been filed in the suit. Merely because the application was registered as a Ccp, to hold that it would retain its separate character dehors the suit would be taking a hypertechnical view. Moreover, the order itself records its scope in following words:- “The scope of the present order is mainly to clarify the interim order passed in I.A.858/90 on 5-2-1990 but in this view some other matters have come into the notice of this Court after the date would also have to be noticed because the clarification otherwise will remain incomplete.”
(34) This alone would negate the appellants’ submission. It shows that the order in Ccp only clarified the interim order. The interim order having merged in the final order, no advantage can be drawn by the appellant after the dismissal of the suit. Point No.5: “THEappellants are bonafide purchasers and have put in huge investments. Equity would lie with the additional construction being regularised, especially in view of the guidelines and the fact that the construction had been done all along within the knowledge of the respondent NDMC.”
(35) Learned counsel for the appellant laid considerable stress in pleading that the Court should come to the rescue of appellants and other bonafide purchasers who had invested considerable sums in acquiring the flats. It was urged that the respondent-committee and its officials had colluded with the builders and permitted the construction of extra floors. The demolition would result in stupendous loss and waste of property and valuable resources apart from bringing misery on the appellants and other bonafide purchasers.
(36) The menace of unauthorized construction has reached alarming proportions. The present case is a glaring example of open and defiant manner in’ which builders continued to go ahead with unauthorized construction despite a specific rejection of the building plans for extra floors. A division Bench of this Court in Anil Kumar Khurana v. M.C.D. and Others – Supra made the following observations:- “In the end, I regret to notice that despite warning and caution given by the Apex Court and also this Court, from time to time, that stern action will be taken against unauthorized constructions and misuse, these activities have gone on unabated, without any let or hindrance and all the warnings have fallen on deaf ears without any effect on the unscrupulous builders and purchasers of these spaces. It is, therefore, necessary to once again send a message, loudly, clearly and firmly to all those who indulge in such illegal activities that courts will not come to the aid of persons who indulge in such blatant unauthorized constructions and misuser of the properties. It is also the duty of the courts to examine these matters carefully before granting injunction restraining demolition of such unauthorized constructions. Ordinarily the courts before issuing injunctions in such matters should insist upon filing of the sanctioned plans and details about the existing structures to prima face find out whether the existing structures are in accordance with the sanctioned plan and building bye laws etc or not. The courts may also consider appointment of independent person to verify correctness of representations made about existing structures as in many cases unauthorized constructions are raised after issue of injunctions and in cover and garb of orders of injunction. The alarming nature of such illegal activities can be controlled only bye due cooperation from all citizens including the Media and the Press. It is the duty of all to expose these law breakers.”
(37) As noticed earlier, the respondents state that no other group housing residential building with Far of 250 has been sanctioned and permitted to be constructed. The construction of additional floors is unauthorised and not compoundable, as stated in para 28 above. Considerations of public interest and larger interest of the society in not permitting this edifice of unauthorised construction to remain, far out-weigh the financial hardship and inconvenience that may be caused to the affluent purchasers of these flats. However, with a view to prevent avoidable loss of goods and belongings, we direct the Ndmc to permit the appellants and other purchasers/occupiers of flats to remove their assets and belongings within a period of seven days, if not done so already prior to executing the order of demolition.
(38) In the facts and .circumstances of the case we feel that an enquiry is warranted to ascertain and fix responsibility of the concerned officers/personnel of the New Delhi Municipal Committee, who, either by dereliction of their duty or in collusion with the builder, permitted construction of additional floors between December 1988 to January 1990, despite the rejection of the building plans therefor.
(39) We would, therefore, request the Lt.Governor to appoint a Committee comprising senior officials from other than Ndmc for this purpose, within a fortnight. The Committee be asked to submit its report within four months from today. A copy of the report be also sent to this Court together with the recommended action, based on the findings.
(40) The appeal is dismissed with the above directions and observations.