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Hotel Rajdoot Pvt. Ltd. Vs. B Municipal Corporation of India - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberLetter Patent Appeal No. 51 of 1974
Judge
Reported inAIR1980Delhi262; 18(1980)DLT1
ActsDelhi Municipal Corporation Act, 1957 - Sections 335 (1) and (2)
AppellantHotel Rajdoot Pvt. Ltd.
RespondentB Municipal Corporation of India
Advocates: C.L. Choudhry,; R.B. Datar and; Lalit Bhardwaj, Advs
Cases ReferredSavitri Devi v. MunicipalCorporation
Excerpt:
.....that the permission sought for any notice under section 346 is being refused and is not being granted.; 2. if the corporation was of the opinion that there has been deviation from the sanctioned plan, it was open to the corporation to prosecute the appellant, section 468(1) enables the corporation to compound any offence made punishable by or under the act. principles of natural justice postulate that no action to harm any one should take place without notice. in the present case, appellant is being given an opportunity of not facing prosecution by paying a certain amount of money. the appellant is free to accept this offer or reject it. the amount asked for is neither a penalty nor a fine. this is in fact a beneficial provision and if the appellant does not pay the sum of rs. 29,..........while dealing with this contention, he baldthat it could not be said that by the issue of the said letter the corporation had not refused to sanction the completion certificate andshould, thereforee, be deemed to have sanctioned it by fiction of law.it is to be seen that the corporation took a positive step on the receipt of the notice under section 346 of the act. the corporationadmittedly did not grant the permission which was sought tor. on thecontrary, by the said letter, dated 17/07/1965, it was specificallystated, apart from number of other defects which were pointed outtherein, that the building had not been completed. the mere fact thatin the said letter it was not stated that the permission sought for isrefused is wholly immaterial. the said letter has to be read as awhole and.....
Judgment:

B.N. Kirpal, J.

(1) The two questions which arise for consideration in this Letters Patent Appeal are (1) as to what wouldamount to the refusal to grant permission as envisaged by the provisoto sub-section (2) of section 346 of the Delhi Municipal CorporationAct, 1957 (the Act), and (2) whether any hearing is necessary be-fore the Corporation offers to compound the offence under section 468 of the Act at a particular figure

(2) The appellant had constructed a Hotel known as Hotel Rajdoot,at 13-B, Jangpura, Mathura Road, New Delhi. On 20/10/1963 the building plan was sanctioned. After the plans had beensanctioned the appellant carried out the construction of the said Hotel.According to the provisions of section 346 of the Act, before the premises which are constructed can be occupied, it is necessary to obtain a completion certificate. The said section reads as follows :

'(1)Every person who employs a licensed architect or engineer or a person approved by the Commissioner to design or erect a building or execute any work shall, within one month after the completion of the erection of thebuilding or execution of the work, deliver or send or causeto be delivered or sent to the Commissioner a notice inwriting of such completion accompanied by a certificate inthe form prescribed by bye-laws made in this behalf andshall give to the Commissioner all necessary facilities forthe inspection of such building or work.(2) No person shall occupy or permit to be occupied anysuch building or use or permit to be used any building ora part thereof effected by any such work until perinission has been granted by the Commissioner in this behalfin accordance with bye-laws made under this Act.Provided that if the Commissioner fails within a period ofthirty days after the receipt of the notice of completionto communicate his refusal to grant such permission, suchpermission shall be deemed to have been granted.'

(3) The appellant gave a notice of completion of the building on 23/06/1965 under section 346(1) of the Act. After the sendingof the notice, the appellant received a reply, dated 17/07/1965from the respondents. The relevant portion of the said reply reads asfollows :

'WITHreference to your Cc application, dated 23-6-65 I haveto inform you that the same cannot be considered asvalid notice until the following information, as requiredunder section 335(1)(2) of the Municipal Corporationof Delhi Act, 1957 has been furnished to the satisfaction of the Commissioner.1. Finishing work is still going on in the building.2. to 12. ********13. Some work still going on in the basement.14. to 27. ********Please remove all the above 27 points.'

Thereafter some correspondence took place between the particsand ultimately on 29/12/1965 the respondent set a noticerequiring the appellant to deposit a sum of Rs. 29,975 for compounding of the compoundable item. The relevant portion of the said noticereads as follows :

'INContinuation of this office letter No. Dated you are hereby informed that your case forcompletion certificate shall be rejected in case you failto comply within seven days of the receipt of this letterto the points mentioned below :Please note that you are liable to be presented under section 346 of the D.M.C. Act for unauthorised occupationof the building.1. Please deposit Rs. 29,975 as C.T. off compoundableitem.** ** **'

The appellant did not comply with the terms of the letter and fileda writ petition being Civil Writ No. 400-D of 1966.

(4) The respondents filed their affidavits in reply to the said writ petition and after pleadings were completed the writ petition wasultimately disposed of by the judgment, dated 13/02/1974.The learned single Judge repelled the contentions raised on behalt ofthe appellant and dismissed the writ petition. The present appeal hasbeen filed against the said judgment of the learned single Judge.

(5) The first contention on behalf of the appellant, which was alsothe contention raised before the learned single Judge, is that on acorrect perusal of section 346 of the Act it must be held that theappellant is entitled to the benefit of the proviso to the said section.It is contended that the section postulates a communication from theCommissioner slating positively that the permission asked for is rofused. The contention is that the letter of 17/07/1965 had beenissued under section 335 of the Act purporting to ask for informationfrom the appellant and the said letter did not amount to refusal ascontemplated by the said section. In our opinion, the learned singleJudge was right when, while dealing with this contention, he baldthat it could not be said that by the issue of the said letter the Corporation had not refused to sanction the completion certificate andshould, thereforee, be deemed to have sanctioned it by fiction of law.It is to be seen that the Corporation took a positive step on the receipt of the notice under section 346 of the Act. The Corporationadmittedly did not grant the permission which was sought tor. On thecontrary, by the said letter, dated 17/07/1965, it was specificallystated, apart from number of other defects which were pointed outtherein, that the building had not been completed. The mere fact thatin the said letter it was not stated that the permission sought for isrefused is wholly immaterial. The said letter has to be read as awhole and it clearly shows that the Corporation had applied its mindand came to a conclusion that on the notice as given, and consideringthe state of the building, the completion certificate could not be granted.The reference to section 335 in the said letter has been wronglymade. The relevant provision in a case where deviation had beenmade would be section 345 of the Act. Whenever any notice is received and a communication is sent to the applicant within the periodof 30 days pointing out the deviation which had been made and requiring the deviation to be rectified under section 345 of the Act, it isimplicit therein that the permission sought for by notice under section 346 is being refused and is not being granted.

(6) The learned counsel for the petitioner has relied upon a singleBench decision of this count in the case of Savitri Devi v. MunicipalCorporation 1975 Rlp (Note) 46 (CW 1449/73, decided on20-12-1974). In our opinion, the said decision is not applicable tothis case. In the said case the provision which came up for construction was section 337 of the Act. Though there is a deeming;provision in the said section, the said section has to be read along withsections 333 and 335 of the Act. The reading of the three provisionstogether, it is clear that the said provisions are not in pari materia withthe provision of section 346 of the Act. In our opinion, it is notnecessary that there should be a communication stating expressly thatthe permission asked for is refused. The said decision is clearly distinguishable on facts as well as on law. We do not understand thatjudgment to lay down the rule that in the absence of an express refusal in the reply to the notice under section 346(1) the permissionis deemed to have been granted even in a case where the perusal ofthe said reply clearly indicates that the permission sought for is notbeing granted. If the said judgment is construed to mean to the conteary, then, in our opinion, it would not be laying down the correctlaw.

(7) The second contention raised by Mr. Choudhry is that theprinciples of natural justice have been violated. It is contended thatit was obligatory on the respondents to give the appellant an opportunity of being heard before the letter dated 29/12/1965,whereby the appellant was asked to pay the compounding fee ofRs. 29,9751, was communicated. In our opinion, there is no merit inthis contention. If the Corporation was of the opinion that there hasbeen deviation from the sanctioned plan, it was open to the Corporation to prosecute the appellant. Section 468(1) enables the Corporation to compound any offence made punishable by or under theAct. Principles of natural justice postulate that no action to harmany one should take place without notice. In the present case, whathas happened is that the appellant is being given an opportunity ofnot facing prosecution by paying a certain amount of money. Theappellant is free to accept this offer or reject it. The amount asked foris neither a penalty nor a fine. This is in fact a beneficialprovision and if the appellant does not pay the sum of Rs. 29,975.00the same cannot be recovered by the Corporation in any manner whatsoever. We fail to understand as to how the principles of naturaljustice could be attracted in such a case. The appellant cannot insiston the Corporation making an offer after having given the appellantan opportunity of being heard as to how much amount should be offeredfor compounding the offence. In our opinion, there is no force inthis centention and we agree with the judgment of the learned singleJudge.

(8) It is contended by Mr. Choudhry that there is no guideline asto how much amount can be charged for compounding the offence under section 468 of the Act. It is a matter of mutual agreement betweenthe parties. There can be no guideline fixed for arriving at asagreement, just as under section 320 of the Criminal Procedure Codealso no guideline for compounding of the offences at a particularamount has been laid down. We are informed that the Corporationhas laid down guidelines for fixing of the amount under section 468.It has not been shown that the amount which is being demanded is contrary to the said guidelines.

(9) In the result, the appeal fails and is dismissed with no order as to costs.


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