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Faqir Chand Vs. the Municipal Corporation of Delhi and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtDelhi High Court
Decided On
Case NumberCivil Miscellaneous (Main) Appeal No. 78 of 1968
Judge
Reported inILR1969Delhi581
ActsConstitution of India - Article 227; Delhi Municipal Corporation Act, 1957 - Sections 243
AppellantFaqir Chand
RespondentThe Municipal Corporation of Delhi and ors.
Advocates: J.M. Lal,; Tara Chand Brijmohan Lal and; J.P. Gupta, Ad
Cases Referred and Syed Hakoob v. K. S. Radhakrishnan and
Excerpt:
.....structure under section 243(1) of delhi municipal corporation act--appeal against, to the district judge-case dealt with in a casual and superficial manner-- duty of district judge to see if the impugned order is justified by precise terms of section 243 of delhi municipal corporation act.; that it is true that under article 227 of the constitution, the high court does nto sit as a court of appeal and it merely exercises the constitutional power of superintendence, which includes judicial scrutiny for the purpose of keeping the subordinate courts and tribunals within the bounds of law. it is also true that the power has to be exercised most sparingly and only in cases where, unless the high court interfered, grave injustice would ensure from dereliction of duty or flagrant..........on the first floor. in so far as chhaja on the second floor is concerned, it appeared the learned district judge that it was a later addition and improvement which was nto in existence in 1959-60. the production of affidavits of some persons deposing that there was no fresh construction did nto impress the learned district judge, according to whom such affidavits were procurable and they did nto guarantee that what was stated therein was true. a notice from the house tax department in respect of the proposed assessment in 1967 which was also produced by the appellant before the learned district judge, was considered to be equally unhelpful because there was a note at the bottom of the notice that the barsati had been converted into a room. both the barsati and the room on the.....
Judgment:

Inder Dev Dua, J.

(1) In these proceedings, this Court is asked under Article 227 of the Constitution to quash and set aside the order of the learned District Judge dated 2-11-1968 dismissing petitioner Faqir Chand's appeal under section 343(2) of the Municipal Corporation Act from the order of the Zonal Engineer (Buildings) of the Municipal Corporation of Delhi dated 27-2-1965 calling upon the petitioner to demolish one room on the first district Judge took the view that from the plans it was clear that only roofs of some rooms had been replaced at the existing height on the first floor. No action could, thereforee, be taken for the demolition of the structure on the first floor. In so far as Chhaja on the second floor is concerned, it appeared the learned District Judge that it was a later addition and improvement which was nto in existence in 1959-60. The production of affidavits of some persons deposing that there was no fresh construction did nto impress the learned District Judge, according to whom such affidavits were procurable and they did nto guarantee that what was stated therein was true. A notice from the House Tax Department in respect of the proposed assessment in 1967 which was also produced by the appellant before the learned District Judge, was considered to be equally unhelpful because there was a note at the bottom of the notice that the Barsati had been converted into a room. Both the Barsati and the room on the second floor having come into existence after 1959-60, without the requisite permission, they were held to be unauthorised and liable to be demolished. In respect of this structure on the second floor, threfore, the appeal was dismissed.

(4) Before me, Shri J. M. Lal, the learned counsel for the petitioner Faqir Chand, has questioned the legality of the impugned order. He has drawn my attention to Annexure 'K' which is a notice under section 124 of the Delhi Municipal Corporation Act of 1957 in which the increase in the assessment has been stated to be due to the fact that Barsati had been converted into a room. This was the tax assessment for the year 1967-68. The counsel has also referred me to Annexure 'A' dated 1-4-1967, according to which Faqir Chand petitioner wrote to the Zonal Engineer . (Bldg.) that as a result of rainy season, the tin-roof of his house was leaking and that he wanted to replace it with a puce one with Agra stone slabs. Necessary permission for doing the needful was sought. From this material, it is argued that the order made by the Zonal Engineer on 27-2-1968 and the order of the District Judge on appeal dated 2-11-1968 are tainted with a serious legal infirmity justifying being quashed by this Court under Article 227 of the Constitution.

(5) On behalf of the respondents the Municipal Corporation of Delhi and the Zonal Engineer, it has been pointed out that the ground of rainy season taken by the petitioner Faqir Chand is an after thought because whereas in Annexure 'A', permission was sought on 1-4-1967 to convert the tin-roof into a puce one to be built with Agra stone slabs, in the supporting affidavits produced by Faqir Chand(Annexures E/3 to E/7) it was contended that it was during rains in the first fortnight of August, 1967, that the roof of Barsati on the second floor and a room on the first floor fell down. This conflict between Annexure 'A' and the supporting affidavits has been emphasised on behalf of the respondents as proof positive of the falsity of the petitioner's claim. The learned counsel has also relied on two decisions of the Supreme Court in Nagendra Nath Bora v. Commissioner of Hills Division and Appeals, and Syed Hakoob v. K. S. Radhakrishnan and others(2) for the submission that this Court should nto interfere under Article 227 of the Constitution. In Nagendra Nath's case, it was observed that under Article 226 of the Constitution, the power of interference may extend to quashing an impugned order on the ground of a mistake apparent on the face of the record, but under Article 227, the power of interference is limited to seeing that the Tribunal functions within the limits of its authority. In Syed Yakoob's case, it was observed that the jurisdiction of the High Court to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is nto entitled to act as an Appellate Court. It was added that the argument that some evidence was nto duly considered by the Tribunal, would normally pertain to the realm of the appreciation of evidence and would as such be outside the purview of an inquiry in proceedings for a writ of certiorari under Article 226 of the Constitution.

(6) In the order of the learned District Judge, the following observations occur:-

'THEappellant's counsel has produced a notice received from the House Tax Department in respect of the proposed assessment for 1967. There is a note underneath this notice that the Barsati had been converted into a room. As both the Barsati and the room on the second floor came into existence after 1959-60 and no permission as required by law is shown to have been taken for the erection of this Barsati or the room, both these structures were unauthorised and improvements made in an unauthorised construction would nto debar the respondent. Corporation from taking action for the demolition of the unauthorised or the improved structures.'

(7) From these observations, it appears that the learned District Judge has thought that both the Barsati and the room came into existence after 1959-60.

made bye-laws or Act said the of contravention in accorded was sanction which to subject conditions 1957 Act, Corporation Municipal Delhi 343 section referred contrary without Iii 2716 No. H. Bazaar, Naya Resident You are hereby directed * * * * * * * * * *

(9) This notice gives an impression of having been signed in a routine manner. At the bottom left hand corner, the drawing shows that on the second floor, there was first and old building, presumably Barsati, which was later converted into a room. This show-cause notice is addressed to :-

SHRI/MT.owner-BUILDER-OCCUPIER H.No. 2716/111 Naya Bazaar, Delhi

(10) Annexure 'K' dated 28-3-1968 merely speaks of Barsati being converted into a room. From this Annexure, it would appear that Barsati was already there and the only change made was that the Barsati was converted into a room which seems to have been supported from Annexure 'B' as well. Section 343(1) of the Delhi Municipal Corporation Act, so far as relevant for our .purpose, provides:-

'343(1)Where the erection of any building or execution of any work has been commenced, or is being carried on, or has been completed without or contrary to the sanction referred to in section 336 or in contravention of any condition subject to which such sanction has been accorded or in contravention of any of the provisions of this Act or bye-laws made there under, the Commissioner may, in addition to any other action that may be taken under this Act, make an order directing that such erection or work shall be demolished by the person at whose instance the creation or work has been commenced or is being carried on or has been completed within such period,'

(11) Proviso to this sub-section requires a notice and a reasonable opportunity to show cause why such order should nto be made. An appeal against an order under this sub-section is competent at the instance of an aggrieved person to the Court of the District Judge.

(12) Now, according to the petitioner, in April, 1967, he had asked for sanction to replace the tin-roof with a puce one built of Agra stone slabs. According to the reply filed in this Court by the respondents, it is admitted in paragraphs 3 and 4 that the application dated 1-4-1967 was received from the petitioner, but no reply was given thereto because it was vague and incomplete.

(13) It is true that Under Article 227 of the Constitution, this Court does nto sit as a Court of Appeal and it merely exercises the constitutional power of superintendence, which includes judicial scrutiny, for the purpose of keeping the subordinate Courts and Tribunals within the bounds of law. It is also true that the power has to be exercised most sparingly and only in cases where, unless the High Court interfered, grave injustice would ensue from dereliction of duty or flagrant violation of duty by the subordinate Courts or Tribunals, as the case may be. hi the case in hand, the show cause notice and the order of the Zonal Engineer Annexure 'G' does nto show whether all that was required was to restore the old Barsati or also that the Barsati was to be demolished. The order of the learned District Judge, as observed earlier, suggests that both Barsati and the room on the second floor came into existence after 1959-60 without any permission as required by law. The question has to be considered from the point of view of the scope and effect of section 343 of the Delhi Municipal Corporation Act, the relevant part of which has been reproduced earlier. The right of appeal given to the Court of the District Judge, does nto seem to me to be restricted in any manner. At least, my attention has been drawn by the respondents to any provision of law which restricts this right of appeal within any narrow grooves. The District Judge is, thereforee, entitled to see if the impugned order against which an appeal has been preferred in his Court, is justified by the precise terms of section 343 of the Delhi Municipal Corporation Act. This Court is nto unmindful of the fact that in Delhi, considerable unauthorised construction has come into being, but notices for demolition under the statute have to be given in accordance with law, and each case has to be dealt with by the authorities concerned after devoting due care and attention to the alleged unauthorised construction. The question being one of citizen's right to property the Corporation Authorities are expected to administer the law in regard to erection of buildings and their demolition with the requisite sense of responsibility and nto in a casual or superficial manner. The failure by the Zonal Engineer to write back to Faqir Chand in answer to Annexure 'A' is understandable. If the application was nto complete or was vague, Faqir Chand was entitled at least to have the courtesy of a reply so that he may furnish the requisite particulars. I need not, however, dilate on any of these aspects. I would, however, quash and set aside the order of the learned District Judge and send the case back to him for disposing of the appeal after considering the scope and effect of section 343 of the Delhi Municipal Corporation Act and also considering as to how much of the construction can in law be directed to be demolished. I am expressing no considered opinion on the merits of the appeal which it would bo for the learned District Judge to dispose of after hearing both sides. Parties are directed to appear in the Court of the learned District Judge on 26-5-1969 when a short date would be given for the hearing of the appeal. There will be no order as to costs in this Court.


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