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Krishan Gopal Vs. Municipal Corporation of Delhi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 1241 of 1970
Judge
Reported in22(1982)DLT73
ActsDelhi Municipal Corporation Act, 1957 - Sections 344, 444(1) and 457
AppellantKrishan Gopal
RespondentMunicipal Corporation of Delhi and ors.
Advocates: A.B. Dayal and; Mukul Rohatagi, Advs
Cases ReferredThe Municipal Corporation of Delhi v. Kundan Lal and
Excerpt:
.....that the discrepancy between the date of the notice under section 343 and the date on which the zonal engineer signed it as well as the date of the show cause notice as mentioned in the demolition order dated 3-3-69 were mere clerical mistakes and did not render the whole proceedings illegal. the learned district judge, however, also found from the record that the appellant had been given repeated opportunities to show cause against the proposed demolition but each time he was reported to have refused the delivery of the notice vide reports dated 2c-2-69, 26-2-69 and 1-3-69 and satisfied himself about the valid service of the notice. however, learned counsel for the petitioner has pointed out that in the writ petition he has made a specific averment that the district judge has failed..........to the respondents, a notice was issued to the petitioner dated 19-2-1969 (but signed by the zonal engineer on 18-2-1969) pointing out to him that he had raised unauthorised construction without the municipal sanction or contrary to the terms and conditions of such sanction and calling upon him to show cause within 72 hours at 4-00 p.m. by appearing at the office of the zonal engineer as to why an order of demolition should not be passed. he was also called upon to stop continuing further unauthorised construction failing which again it was stated action for demolition would be taken. this was a notice which rolled into itself the provisions of section 343(1) and 344(1) of the act. (3) by an order dated 3rd march, 1969 (signed by the zonal engineer on 5th march, 1969) the zonal.....
Judgment:

S. Ranganathan, J.

(1) The petitioner Krishan Gopal is the owner of a building bearing municipal No. 2897-99 in Ward No. Vi, Bazar Sirkiwalan, Lal Kuan Bazar, Delhi. He applied for and obtained a sanction for certain constructions in the above premises. After the building was complete he applied for a completion certificate under Section 346 of the Delhi Municipal Corporation Act (hereinafter referred to as the 'Act') and this was duly granted to him on 27th January, 1969.

(2) According to the respondents, after the completion certificate was granted, the petitioner started some further construction which was not authorised because no sanction had been obtained in respect thereof. According to the respondents, a notice was issued to the petitioner dated 19-2-1969 (but signed by the Zonal Engineer on 18-2-1969) pointing out to him that he had raised unauthorised construction without the municipal sanction or contrary to the terms and conditions of such sanction and calling upon him to show cause within 72 hours at 4-00 P.M. by appearing at the office of the Zonal Engineer as to why an order of demolition should not be passed. He was also called upon to stop continuing further unauthorised construction failing which again it was stated action for demolition would be taken. This was a notice which rolled into itself the provisions of Section 343(1) and 344(1) of the Act.

(3) By an order dated 3rd March, 1969 (signed by the Zonal Engineer on 5th March, 1969) the Zonal Engineer passed an order directing the petitioner to demolish the unauthorised construction within six days of the date of service of the said order. Both in the notice dated 19-2-1969 and in the order dated 3-3-1969 the details of the unauthorised construction, according to the respondents, were set out.

(4) The petitioner challenges the validity of the order dated 3-3-1969 in this writ petition on various grounds. His principal contention is that the notice dated 19-2-1969 has not been served in accordance with the provisions of the Act. It is pointed out that even according to the respondents the notice under Section 343(1) and 344(1) as well as a subsequent letter calling upon the petitioner to appear in person had been pasted at the site. The contention on behalf of the petitioner is that this is not valid service having regard to the provisions contained in Section 344 of the Act. The second point raised on behalf of the petitioner is that the notice dated 19-2-1969 gave the petitioner only a period of 72 hours within which to show cause against the proposed demolition and that this does not amount to a reasonable opportunity of being heard within the terms of Section 343 of the Act. The third point raised by Sri Adarsh Dayal is that the Zonal Engineer who passed the order was not competent to pass the order. Lastly it is contended that when the petitioner filed an appeal against the order of demolition dated 3-3-1969 the learned District Judge dismissed the same basing himself on the record produced by the respondents and without giving any opportunity to the petitioner to establish that the notice had not been properly served and that the order of demolition had not been passed by a person duly authorised to do so. Consequently, it is submitted, the order of the District Judge dated 17th October, 1970 is also erroneous and should be quashed.

(5) The contention of the learned counsel for the petitioner that the notice dated 19-2-1969 did not provide him with a reasonable opportunity cannot be accepted. Learned counsel referred to a decision of this court in Municipal Corporation v. Janki Prasad 1972 1 R.L.R. 31 where it was held that a notice giving 24 hours for showing cause against a proposed demolition could not be said to have offered a reasonable opportunity. I am, however, unable to agree with that the same principle would apply even where as in this case the time provided is 72 hours or three days. It is true that a proposal for demolition may not be as emergent as a proposal calling upon the owner or occupier to stop a construction since the construction has already been done. But at the same time the charge against the petitioner was that he had made constructions which did not conform to the plan for which sanction had been given. All that the petitioner had to do was to show to the authorities by comparison of the sanctioned plan and the actual construction that there was no deviation. It cannot be said that a period of 72 hours for showing cause is not sufficient. There is also no allegation that the petitioner was for any particular reason such as absence from head-quarters or for some similar reason unable to comply with the requirements within 72 hours and asked for extension of time which was refused. In these circumstances I am unable to hold that the notice dated 19-2-1969 did not comply either with the provisions of Section 343(1) or with the principles of natural justice.

(6) So far as the service of the notice is concerned the contention of the learned counsel for the petitioner was that this notice had been addressed to the owner or occupier of the land and pasted on the premises apparently keeping in view the requirements of Section 444(2). Learned counsel submits that in the present case the notice being one under Section 343 it should have been served in accordance with Section 444(1)(d) and not Section 444(2). This contention of the learned counsel is correct and it is borne out by the decision of this court in Krishan Gopal v. Municipal Corporation of Delhi 1972 1 2nd Del. 272. It has, thereforee, to be examined whether in the present case the provisions of Section 444(1)(d) were complied with for the service of the notice.

(7) Section 444(1)(d) states that any notice will be deemed to be duly served if it is addressed to the person to be served and (1) is given or tendered to him or (2) if such person cannot be found, is affixed on some conspicuous part of his last known place of residence or business if within the union territory of Delhi or is given or tendered to some adult member of his family or is affixed on some conspicuous part of the land or building if any to which it relates or (3) sent by registered post to that person. Learned counsel for the petitioner contends that in the present case the notice had been, according to the respondents, pasted at the site but there is no allegation or evidence that any diligent effort was made to trace the petitioner and he could not be found. Moreover, it is submitted that the notice was not addressed to the petitioner and this was treated as a case of a notice required or authorised to be served on the owner or occupier of the land or building within the meaning of Section 444(2). Learned counsel submits that a ground to this effect was taken before the learned Additional District Judge but he disposed of the appeal without framing any issues or taking any evidence in the matter. In this context learned counsel relies on the terms of Section 457 of the Act which directs that the procedure provided in the Code of Civil Procedure in regard to suits shall be as far as it can be made applicable, apply in the disposal of applications, appeals or references that may be made to the Court of the District Judge, Delhi under this Act or any bye-law made there under. The same objection is taken by the learned counsel also in regard to plea raised in the grounds of appeal that the Zonal Engineer was not competent to pass the demolition order. The counsel states that the District Judge should have recorded evidence of delegation to the Zonal Engineer under Section 491 of the Act.

(8) Learned counsel for the respondent however, points out that the provisions of the Code of Civil Procedure in regard to the trial of the suits is attracted by Section 457 only to a limited extent in so far as it can be made applicable for the disposal of appeals of the type presently under consideration. Learned counsel submits that the usual procedure in the case of such appeals is that the Municipal Corporation lodges the entire relevant file before the learned District Judge. Counsel for the appellant are thereafter given an opportunity of inspecting the records and then raising their contentions. Learned counsel submits that in the present case if the petitioners were not satisfied with the documents on record they should have specifically raised the plea before the learned District Judge that they wanted oral evidence to be recorded in regard to one matter or the other or that certain documents or other evidence should be called for from the respondents. He submits that in the circumstances the procedure outlined in Section 457 has been followed to the extent consistent with the requirements of the case.

(9) It appears to me that though the language of Section 457 is somewhat general and wide it need not be construed as literally engrafting the entire procedure outlined in the C. P. C. in regard to the trial of the suits. I agree with counsel for the respondents that the procedure is capable of being moulded to suit the requirements of the case to such matters, so long as the pleas raised in appeal are properly and adequately dealt with and a decision is arrived at after recording evidence on issues which squarely arise in the case. The question is whether that has been done in the present case.

(10) Counsel for the petitioner points out that the petitioner had taken in his grounds of appeal before the District Judge the ground that the order had not been passed and issued by the person duly authorised under the Act. He had also taken the ground that the order had been passed ex-parte without serving a notice and affording an opportunity to the appellant to show cause against it. On the other hand learned counsel for the respondent draws attention to the appellate order and says that the appellant's argument, at the time of the hearing of the appeal by the learned District Judge were very limited. The petitioner-appellant had only relied upon certain discrepanies to urge that the notice and order are invalid. It was pointed out that the notice was dated 19-2-69 but signed on 18-2-69. Again it was pointed out that the order dated 3-3-69 referred to the date of this notice as 16-2-69. From these discrepancies a case regarding their non-genuineness was sought to be built. The learned District Judge considered this argument and come to the conclusion that the discrepancy between the date of the notice under Section 343 and the date on which the Zonal Engineer signed it as well as the date of the show cause notice as mentioned in the demolition order dated 3-3-69 were mere clerical mistakes and did not render the whole proceedings illegal. The learned District Judge, however, also found from the record that the appellant had been given repeated opportunities to show cause against the proposed demolition but each time he was reported to have refused the delivery of the notice vide reports dated 2C-2-69, 26-2-69 and 1-3-69 and satisfied himself about the valid service of the notice.

(11) I was initially inclined to think that, though in the grounds of appeal filed before the learned District Judge the petitioner did take up the two contentions already referred to, they were perhaps not urged by him at the time of the hearing before the learned District Judge. For, so far as the competence of the Zonal Engineer to pass the order is concerned the demolition order itself stated that he was exercising his powers under Section 491 of the Act and though the petitioner did take a ground in general terms that the authority passing the order was not duly authorised under the Act, he had an opportunity to inspect the records and there is nothing to show that a specific point denying delegation of powers in favor of the Zonal Engineer was pressed or urged before the District Judge. So far as, similarly, the second contention is urged the learned District Judge specifically refers only to arguments on the basis of discrepancies pointed out by the appellant. However, learned counsel for the petitioner has pointed out that in the writ petition he has made a specific averment that the District Judge has failed to decide the appellant's objection regarding the competence of the Zonal Engineer and there is nothing to show that the ground taken up in the appeal on this question had been given up. He also points out that there is a clear reference in the judgment to the petitioner's contention that all the notices were false and fabricated and that the District Judge has also proceeded to give a finding that the petitioner had been given repeated show cause notices. He contends that these two issues viz. (1) whether the notice had been served or not and (2) whether the Zonal Engineer was competent to pass the order have been decided without any evidence on record. In this context reference is made by the learned counsel to a decision of this Court in The Municipal Corporation of Delhi v. Kundan Lal and others, 1971 Rlr 15, I think there is force in the submission made by the learned counsel. I am of opinion, in view of the specific averments in the grounds of appeal, the nature of the contentions put forward before the learned District Judge and the findings given by him, that the above two issues had been squarely raised before the learned Judge and that he has decided them without taking any evidence at all. So far as the competence of the Zonal Engineer was concerned there is nothing to indicate whether at all the District Judge looked into the question as to whether there had been any delegation to the Zonal Engineer of the powers exercisable under Section 343 in terms of Section 491. Again, so far as the service of the notice was concerned, the District Judge has simply acted upon the endorsement made in the notice dated 19-2-1969 at the back and two further official nothings staling that notices had been refused by the party and that it had thereforee to be pasted. The petitioner was denying that any notice had been served on him. The above endorsement showed to the contrary. In these circumstances the District Judge should have proceeded to decide the issue after taking the evidence of the parties in regard thereto. In particular, it will be noticed that Section 443 and 444(1)(d) contemplate the pasting of a notice only where the person to whom the notice is issued is not found on the premises. The pasting of the notice in the present case is, thereforee, somewhat inconsistent with the claim of the respondents that it had been tendered to the petitioner and refused. If that had been so, the mere tendering of the notice and refusal thereof would have constituted good service within the meaning of the first clause of Section 441(l)(d).

(12) In these circumstances I am of opinion that the learned District fudge erred in disposing of these issues on the basis of the records of the Department without giving an opportunity to the petitioner to establish his contention to the contrary. I, thereforee, quash the order of the learned District Judge and restore the appeal before him for fresh disposal in accordance with law.

(13) The above direction would normally mean that the District Judge will have to decide afresh the issues of delegation in favor of the Zonal Engineer and of the validity of the service of the notice under Section 343. I think, however, that in view of the long passage of time and the circumstances of the case, a slightly different procedure may be adopted by the District Judge while disposing of the appeal. This is indicated below.

(14) The learned District Judge will first satisfy himself whether the Zonal Engineer was competent to pass the order. If the learned District Judge, after hearing the parties and recording such evidence as may be necessary, comes to the conclusion that there was no valid delegation in favor of the Zonal Engineer and that the latter was not authorised to pass the order of demolition under Section 343 then no further question would arise and the order dated 3-3 69 would have to be set aside. On the other hand, if the District Judge comes to the conclusion that there has been a valid delegation of power in favor of the Zonal Engineer the second question raised by the petitioner will become material. But, so far as this aspect is concerned, I can well appreciate that it may be difficult for the District Judge to reinvestigate this matter and to give fresh findings after recording the evidence. Such a course may be impracticable particularly having regard to the long lapse of time between the date when the notice was originally issued and the date when the District Judge will be hearing the matter again which are separated by more than 12 years. It may be very difficult to trace either the building inspector or the witnesses in whose presence the notices were said to have been pasted after all the lapse of time. If the District Judge finds difficulties in giving any findings on that issue, it will be open to him to set aside the order of demolition and direct the Zonal Engineer to pass a fresh order after hearing the petitioner. Such a course would not prejudice the Municipality and would also be fair to the petitioner. The basic grievance of the petitioner is that the order dated 3-3-69 had been passed without giving him a real opportunity of being heard, and whether or not the notice under Section 343/344 had been served before the 3rd March, 1969, all he can ask for is an opportunity to show cause before demolition is decided upon.

(15) Learned counsel for the petitioner urged that there is a limitation period of six months within which a notice under Section 343 has to be issued and served but this aspect will not remain open to the petitioner any longer because it had not been taken at any earlier stage and also, because, in any event, the circumstances clearly show that the petitioner became aware of the notice at least by the time he came to file the appeal before the District Judge on 12-3-69. It would thereforee meet the interests of justice if the petitioner is given a fresh opportunity of showing that the construction was in accordance with the sanctioned plan and not unauthorised and hence does not deserve demolition. I would, thereforee, direct that, in case the District Judge comes to the conclusion that the Zonal Engineer was competent to pass the order in question, it would be open to him to go into the issue of the service of notice under Section 343 and given the appropriate findings after taking evidence of both sides or in case there should be difficulties in deciding this issue due to passage of time, it will be open to him to restore the matter to the Zonal Engineer for a hearing on the merits as to whether there has been any contravention of the sanctioned plans as alleged. That would meet petitioner's grievance that the order of demolition was passed without hearing him and that would also not deprive the petitioner of the opportunity to prefer an appeal from the order of the Zonal Engineer in case the order passed, after hearing him, goes against him.

(16) For the above reasons, a .writ of certiorari will issue quashing the order of the learned District Judge dated 17-10-70 and directing him to dispose of Municipal Corporation appeal No. 317/69 afresh in the light of the above observations.


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