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Prem D. Gupta Vs. Municipal Corporation of Delhi - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtDelhi High Court
Decided On
Case NumberCivil Miscellaneous Appeal No. 227 of 1971
Judge
Reported in1974RLR163
ActsDelhi Municipal Corporation Act, 1957 - Sections 343(1)
AppellantPrem D. Gupta
RespondentMunicipal Corporation of Delhi
Advocates: P.N. Bhardwaj,; S.N. Gupta,; B.N. Kripal and;
Excerpt:
- - gulzari lal failed to comply with the notice, and the committee issued another notice u/s 220 of the said act requiring him to remove the entire projection within six hours failing which the committee would demolish it at its own expense. held :where the notice is in part within the powers conferred on the municipality and in part beyond its powers, it must be treated as bad in its entirety......not bound to comply with the same. the learned counsel relied upon the decision in gulzari lal v municipal committee, ludhiana a.i.r. 1933 lah 935. in that case, in front of a room in the upper storey of a house belonging ;,to gulzari lal, there was an old unroofed projection overhanging the street which had existed for over thirty years. gulzari lal got the said projection repaired, and in doing so, he reduced the width by 6 inches and constructed a roof of tin-sheets on the projection. the municipal committee served a notice on gulzari lal u/s 172 of the punjab municipal act, calling upon him to demolish the entire projection including the old structure within thirty days. gulzari lal failed to comply with the notice, and the committee issued another notice u/s 220 of the said act.....
Judgment:

T.V.R. Tatachari, J.

(1) Against that demolition notice/order, the petitioner filed an appeal, M.C.A. 'No. 117 of 1971, to the Court of the Additional District Judge, Delhi, contending, inter alia, that he had not been afforded reasonable opportunity for showing cause, and that since no show cause notice had been served upon him he could not file his objections to the notice. The said contention was accepted and the learned Additional District Judge, (Shri Muni Lal Jain) allowed the appeal on 26.4.71 & set aside the demolition notice/order and remanded the case. The petitioner then filed his reply, dated 25.5.1971, to the show cause notice issued by the Zonal Engieer. Office of the Corporation put up a report that a 'partition wall' up to the height of 5 feet and 6 inches is allowed to be constructed by the Corporation with a penalty of Rs. 25.00 only, but not in the front set back, and that an open stair case is allowed only in plots of the extent of 100 square yards. In view of the said report, the Zonal Engineer directed that the petitioner be informed that the case could not be regularised, and that as half portion of the plot had been sold, it was a case of sub-division which was not permissible. Accordingly, a letter. No. 1517, dated 11.6.71, was issued to the petitioner as directed by the Zonal Engineer, and he was asked to remove the unauthorised constructions within seven days of the receipt of the letter, failing which, it was stated, action would be taken without any furth

(2) Mr. P.N. Bharadwaj, learned counsel for the petitioner, contended firstly that the learned Additional District Judge ought to have held that the six open risers were covered by sub-clause (m) of Bye-law 2 (67A). The contention is untenable in view of the plain wording of the said sub-clause which reads as under :

'(M) Construction of uncovered staircase (With open risers) of not more than 2ft. 6 inches in width in plots up to 100 sq.yds. in area, where no staircase already exists.' Note : No sanction shall be necessary for carrying out repairs as defined in this clause.'

(3) The area of the plot Ko. 49 in question is admittedly 209 square yards, i.e. more than 1 Go square yards, and the six open rissrs cannot, thereforee, be held to be covered by sub- clause (m) extracted above.

(4) The learned counsel next contended that the demolition notice/order dated June 11, 1971, contained two directions, one of which was good and the other bad, and it was, thereforee, bad in its entirety with the consequence that the petitioner was not bound to comply with the same. The learned counsel relied upon the decision in Gulzari Lal v Municipal Committee, Ludhiana A.I.R. 1933 Lah 935. In that case, in front of a room in the upper storey of a house belonging ;,to Gulzari Lal, there was an old unroofed projection overhanging the street which had existed for over thirty years. Gulzari Lal got the said projection repaired, and in doing so, he reduced the width by 6 inches and constructed a roof of tin-sheets on the projection. The Municipal Committee served a notice on Gulzari Lal U/S 172 of the Punjab Municipal Act, calling upon him to demolish the entire projection including the old structure within thirty days. Gulzari Lal failed to comply with the notice, and the Committee issued another notice U/S 220 of the said Act requiring him to remove the entire projection within six hours failing which the Committee would demolish it at its own expense. The case of the Municipal Committee was that the entire projection was new. The trial Court and the lower appellate Court concurrently found that the lower portion of the projection had existed for more than thirty years, and it was, thereforee, covered by the exception contained in the proviso to section 172(ii) of the Act. The portion with tin roof, was found to be a new construction and was not, thereforee, covered by the aforesaid proviso. In other words, the notice U/S 172 issued by the Committee requiring the demolition of the entire projection including the portion which had existed for thirty years contained two directions, one of which was good and the other bad. Tek Chand J. following the decision in re Madras Railway Company, 23. Weir 149, held that the notice issued U/S 172 by the Municipal Committee was invalid in its entirety, and that Gulzari Lal was, thereforee, not liable to the penalty laid down in section 220 of the Punjab Municipal Act. in the Madras case, Arnold white, C. J. held :-

'WHERE the notice is in part within the powers conferred on the municipality and in part beyond its powers, it must be treated as bad in its entirety. To hold otherwise would impose upon the defendants the obligation of picking out from the notice the requirement which it was within the power of the Municipality to call upon them to carry out.'

(5) The present case falls squarely with in the above proposition. The demolition notice/ order dated 11.6.1971. directed the demolition of both the wall and the six open risers. It thus contained two directions, one in respect of the open risers and the other in respecr of the wall. The farmer was within the powers conferred upon the Corporation U/S 343(1) of the Delhi Municipal Corporation Act, while the latter was not within the said power The notice being a compound one, the petitiner could not have picked out the direction which was within the power and complied with that alone. In fact, the Corporation contended throughout that both the directions were within its power U/S 343(1). The decision in Gulzari Lal's case appears to have been followed by Abdul Hakim khan J. in Municipal Commissioner. Indore Onkardas Guru Gangadas A I.R. 1965 N.U.C. 2394. Applying the ratio of the aforesaid decisions, I hold that the demolition notice/ order dated 11.61971, was invalid in its entirety and is liable to be quashed.


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