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Municipal Corporation of Delhi Vs. Ved Parkash Vij - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtDelhi High Court
Decided On
Case NumberRegular Second Appeal No. 168 of 1976
Judge
Reported in22(1982)DLT453
ActsDelhi Municipal Corporation Act, 1957 - Sections 338
AppellantMunicipal Corporation of Delhi
RespondentVed Parkash Vij
Advocates: S.N. Sapra,; Kadambini and; D.D. Chawla, Advs
Excerpt:
.....that building should be demolished as it violated sanction plan - appellant admitted that plan sanctioned and completion certificate issued - section 338 give power of revocation to appellants any time but it should be within thirty days of issue of notice - held, appellants under sections 338 and 346 cannot revoke sanction plan after completion notice granted or deemed to have been granted. - - his argument is that under section 338 of the act sanction can be revoked 'at anytime'.section 338 of the act reads as under :ifat any time after the sanction of any building or work has been accorded, the commissioner is satisfied that such sanction was accorded in consequence of any material misrepresentation fraudulent statement contain in the notice given or information..........from demolishing the structure of the disputed property raised by the plaintiff after getting the plan sanctioned.(2) briefly the facts are that the plaintiff is the owner of plot no. 41-b, rajpur road, delhi. he applied to the appellant for sanction of a building plan for construction on the said plot which was sanctioned vide letter dated 13.8.68. and it was communicated to the plaintiff vide letter dated 20.8.68. the plaintiff constructed the building. he sent a notice in writing on 6.9.69 under section 316 of the delhi municipal corporation act, 1957 (hereinafter called 'the act') apd deposited necessary fees for obtaining a completion certificate to enable him to occupy the building. the plaintiff alleges that the officials of the corporation visited the premises on 13.6.69 for the.....
Judgment:

Sultan Singh, J.

(1) This second appeal under section 100 of the Code of Civil Procedure, as it stood prior to its amendment by Act 104 of 1976, challenges the judgment and decree of the Additional District Judge dated 3.9.76 affirming the judgment and decree dated 21.12,74 of Subordinate Judge 1st Class whereby the suit of the plaintiff-respondent was decreed, restraining the appellant. Municipal Corporation of Dcihi from demolishing the structure of the disputed property raised by the plaintiff after getting the plan sanctioned.

(2) Briefly the facts are that the plaintiff is the owner of plot No. 41-B, Rajpur Road, Delhi. He applied to the appellant for sanction of a building plan for construction on the said plot which was sanctioned vide letter dated 13.8.68. and it was communicated to the plaintiff vide letter dated 20.8.68. The plaintiff constructed the building. He sent a notice in writing on 6.9.69 under section 316 of the Delhi Municipal Corporation Act, 1957 (hereinafter called 'the Act') apd deposited necessary fees for obtaining a completion certificate to enable him to occupy the building. The plaintiff alleges that the officials of the Corporation visited the premises on 13.6.69 for the purpose of verification. But refusal to grant the completion certificate was never communicated to him, that by letter dated 22.4 70 received on 24.4.70 he was informed that the completion certificate could not be granted as the sanction of the plan stood revoked on 2.9.69. The plaintiff alleges that he was never served with any order of revocation of the sanctioned plan, that there was no question of revocation after the building had been completed and the completion certificate was deemed to have been granted. The plaintiff filed the suit for permanent injunction restraining the Corporation from demolishing or otherwise interfering in any manner whatsoever with his property on the said plot. The appellant Corporation in its written statement pleaded that a letter dated 13.6.69 was issued to the plaintiff for arranging inspection of the building by the Corporation officials but no such opportunity was given by the plaintiff, that the sanction of the plea was revoked by it as the plaintiff had sub-divided the plot and had carried out construction in violation of the sanctioned plan and thus the construction was unauthorised entitling the Corporation to take action under sections 343 and 344 of the Act. It was admitted that the plan was sanctioned on 13.8.68 which was communicated on 20.8.68. The receipt of the notice and deposit of fees under section 346 of the Act for the issue of completion certi- ficate- are admitted. The trial Court decreed the suit and passed a decree restraining the Corporation as prayed for. On appeal the Additional District Judge confirmed the judgment and decree of the trial Court. Hence this second appeal.

(3) The learned counsel for the appellant submits that a letter dated 13.6.69 was issued to the plaintiff which was served upon him The Corporation officials wanted to inspect the building constructed by him, but the plaintiff did not comply with the said notice and thereforee, it must be deemed that the Corporation refused to issue the completion certificate. His next submission is that the plan sanctioned on 13.8.68 was revoked by the Corpo- ration on 2 9.69 and thereforee, the building in question must be deemed to have been erected without sanction. Learned counsel for the plaintiff on the other hand submits that the letter dated 13.6.69 was never received by the plaintiff, that there is no proof about service of such letter, that the Courts below have held that no such letter was ever served. His-submission is that the finding of fact cannot be agitated in second appeal. He further submits that ingredients of section 338 of Act were never pleaded by the appellant in its written statement. There is no plea that any show-cause notice to revoke the sanction was issued to the plaintiff and served upon him or that the plan was got sanctioned by the plaintiff by any material misrepresentation or fraudulent statement. He further submits that the sanc - tioned plan cannot be revoked after the issue of the completion certificate or when the same is deemed to have been granted within the meaning of the proviso to section 346 of the Act.

(4) A letter dated 13.6.69 Ex. DWI/2 is alleged to have been issued and sent under certificate of posting by the Corporation to the plaintiff to arrange for the inspection of the building. This letter is alleged to have been sent to the plaintiff at '61 Rajinder Nagar, New Delhi'. The Courts below after examining the evidence on record have concluded that the address of the plaintiff as mentioned in this letter was not his address, and no such notice was served upon him. This is a finding of fact and the same cannot be challenged in second appeal. I thereforee, hold that the letter dated 13.6.69 Ex. DWI/2 was never served upon the plaintiff. Moreover under section 414(l)(d) of the Act a notice under the Act is required to be served upon the person by giving it, by tendering to him or to an adult members of his family or by affixing it on the building in question or by sending the same by registered post to him. Service of notice by certifcate of posting is not provided under the Act. I, thereforee also hold that provisions of the Act were not complied with by a Corporation and the said letter dated 13.6.69 was never served upon the plaintiff.

(5) The learned cousel for the appellant next submits that as the sanction stood revoked on 2.9.69, there was no question for the grant of completion certificate and the completion certificate cannot also be deemed to have been granted to the plaintiff. His argument is that under section 338 of the Act sanction can be revoked 'at anytime'. Section 338 of the Act reads as under :

'IFat any time after the sanction of any building or work has been accorded, the Commissioner is satisfied that such sanction was accorded in consequence of any material misrepresentation fraudulent statement contain in the notice given or information furnished under sections 333, 334 and 335, he may be order in writing cancel for reasons to be recorded such sanction and any building or work commenced, erected or done without such sanction: Provided that before making any such order the Commissioner shall give reasonable opportunity to the person affected as to why such order should not be made.'

(6) For revoking the sanctioned plan. Corporation has to plead material representation or fraudulent statement if any made by the plaintiff in obtaining the sanction. Further before passing such an order he has to be given reasonable opportunity i.e. as how-cause notice, why such an order should not be passed. The written statement does not plead facts regarding any material representation, fraudulent statement or the issue and service of any show-cause notice for the revocation of the sanctioned plan under section 338. The Corporation has pleaded that the plaintiff sub-divided the plot and made construction in violation of the sanctioned plan. These allegations however are not the grounds for revoking the sanction. The learned counsel for the appellant has brought to my notice that a letter dated 2.9.69 (Ex. DW2/3) is the show-cause notice within the meaning of proviso to section 338 of the Act and that the letter dated 15.1.70 (Ex. Dl) is the record to hold that these notices were ever served upon the plaintiff. Learned counsel submits that these notices were sent under the certificate of posting which, as already stated, is not the method prescribed for service under section 444 of theAct upon the plaintiff. I am thereforee of the opinion that neither of the two notices, was served upon the plaintiff. Further as there is no plea of any material misrepresentation or fraudulent statement by the plaintiff in the getting the plea sanctioned, the provisions of section 338 of the Act are not applicable. It is well known that no amount of evidence, oral or documentry can be looked into without a plea.

(7) Lastly it is contended on behalf of the appellant that such a notice for revocation of the sanctioned plan can be given 'at any time'. He challenges the finding of the trial Court that such a notice cannot be given after the expiry of period for the grant of completion certificate. The question for decision thereforee is, whether there is any 'time limit' for the Corporation to revoke the sanctioned plan? To determine this question it is necessary to refer to the scheme of Chapter Xvi of the Act containing sections 331 to 349. Section 331 defines the the expression 'to erect a building' for the purposes of this Chapter; section 332 prohibits erection of building without sanction; section 333 provides that the person intending to erect a building shall apply for sanction; section 334 provides for the applicant to obtain sanction for additions, repairs, alterations to the building; section 335 provides for conditions of valid notices to be given under sections 333 and 334 of the Act requiring the Corporation to sanction for the erection of the building or for carrying out other works; section 336 provides procedure for sanction or refusal for erecting building or carrying other works; section 337 provides for the circumstances under which a person applying for sanction deemed to have granted sanction and is required to give notice to the Commissioner of the proposed date of carrying out the works or erection of the building ; section 338 provides for revocation of the sanction, sections 339 and 340 provide for construction of building at street corners; section 341 provides for completion of building within the specificed period ; section 342 prohibits the use of inflammable materials for building without permission sections 343 and 344 provide for passing an order of demolition in certain cases; section 345 confers powers upon the Commissioner to require the person to make alternations in confirmity with the sanction; section 346 of the Act relates to completion certificate and it reads as follows :

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

Section 347 restricts the user of the building ; section 348 provides for removal of dangerous building; section 349 confers power on the Commissioner to get dangerous building vacated, (The scheme of Chapter Xvi thus is that an application is to be made by a person who intends to erect a building or carry out any other work. He is required to commence the erection of the building within certain time and after the completion he is required to give a notice of completion in writing, and such a notice is to be given within a period of one month of the completion of the work or the erection of the building and no person is entitled to occupy by building without obtaining the completion certificate. The proviso to section 346 states that if the Commissioner fails within a period of thirty days to com- municate his refusal to grant completion certificate, the same shall be deemed to have been granted to the person concerned. Thus a completion certificate is finally granted or is deemed to have been granted to enable the person concerned to occupy the building. Under the proviso to section 346 it is obligatory upon Commissioner to refuse grant of completion certificate within a period of thirty days from the receipt of notice of completion of the building otherwise, it would be deemed to have been granted. Thus it seems that if plan for construction of a building has been sanctioned, it can be revoked before the grant of the completion certificate. In other words it would mean that if a completion certificate is deemed to have been granteed, the sanction cannot be revoked. The words 'at any time' used in section 338 do not mean that the Corporation at its guest will after the grant of completion certificate, issue a notice, to the owner or any other person without any restriction of time to show-cause why the plan sanctioned should not be revoked. It would be unreasonable and contrary to principles of justice, equity and good conscience to revoke or issue show-cause nolice to revoke the sanction after grant of completion certificate. Reading sections 338 and 346 together, I am of the opinion that sanction of the plan cannot be revoked after the completion certificate is granted or deemed to have been granted.

(8) There is no merit in this second appeal, the same is hereby dismissed with costs.


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