Sunil Atree vs MCD and Another

Manmohan Sarin, J.—Petitioner Sunil Atree filed the present petition seeking a direction to respondent MCD to carry out its statutory duty of demolishing and sealing the unauthorized construction at property bearing No. 2932, Bahadurgarh Road, Sadar Paharganj Zone, New Delhi. A further direction was sought to the respondent to bring the buildings within the Sadar Paharganj area, in accordance with the master plan, zonal plans and municipal laws and to demolish such constructions, which were not in accordance with the master plan. This writ petition has a checkered history of show cause notices being issued by the MCD, replies thereto, demolition notices and orders being passed, appeals preferred before the MCD Appellate Tribunal and the cases being remanded to the Zonal Engineers (Building) for decision on merits. This culminated in an order dated 22.1.1999, by which the demolition notices/orders which had been directed to be treated as show cause notice by the Appellate Tribunal MCD, were withdrawn and the case was closed.

The order dated 22.1.1999, passed by the Assistant Engineer, Sadar Paharganj Zone is assailed by the petitioner as vitiated by fraud and not sustainable. Further, questions which have arisen for consideration are (i) whether the Commissioner of MCD has the power to review, rescind or recall the order dated 22.1.1999? and (ii) whether the said order dated 22.1.1999 can be quashed in the present proceedings?

Having noticed the issues arising for decision in the present writ petition, it is necessary to recapitulate the arduous course of legal proceedings, in this case as the same is relevant for determining whether the extra-ordinary jurisdiction and powers under Article 226 of the Constitution of India deserve to be exercised in the present case.

It may also be noted that during the course of the writ proceedings, C.M. No. 9895/2000 was moved by applicant Jiwan Kumar seeking impleadment in the writ petition. The said application was allowed vide order dated 16.1.2001 and Jeevan Kumar was added as respondent No. 2.

Petitioner''s case is that Jiwan Kumar started unauthorized construction of four storeyed market in July, 1993 in connivance with the staff of the respondent MCD. The building was raised without any prior sanction from MCD. Repeated complaints in writing to the Lt. Governor of Delhi, Commissioner MCD, Superintending Engineer and Engineers of the respondent-MCD, were of no avail. The raising of multi-storeyed building without adequate foundation in a thickly populated area could be a source of danger and risk to the population. Petitioner claims that orders of sealing of the unauthorized construction of property at 2930-32, Bahadurgarh Road, Sadar Paharganj Zone, were passed but the respondent Jiwan Kumar violated the same with impunity. The Municipal Corporation again sealed the building in January, 1995. Petitioner alleges that the seal was broken and unauthorized construction continued unabated. It is averred by the petitioner that in 1996, the ceiling of top floor, had even collapsed. The building was sealed thereafter again. Respondent Jiwan Kumar, despite it raised further construction. Petitioner filed the writ petition in April, 1997 claiming that Jiwan Kumar wants to construct further floors. It is in this back-ground that invocation of writ jurisdiction is to be considered.

Respondent Jiwan Kumar''s case is that petitioner was a tenant in the premises and had suffered an order of eviction. Petitioner was dispossessed in execution of the decree and had not paid the mesne profits totalling over Rs. 3 lacs to the landlord. The present writ petition has been filed malafide. It is urged that petitioner is not entitled to invoke the writ jurisdiction to settle personal scores.

Show cause notice in the writ petition was directed to be issued on 2.4.1997. MCD was directed to file an inspection report within six weeks. As the counter affidavit and report were not filed for some time, directions were issued to the Municipal Corporation of Delhi for presence of officers. In the counter affidavit by MCD, it was claimed that appropriate action under Sections 343 and 345A of the DMC Act has been taken by passing demolition and sealing orders qua the property in question. The MCD averred that the owner/builder Jiwan Kumar, respondent No. 2, had preferred appeal bearing No. 18/AT/MCD/94 against the demolition order. The Appellate Tribunal vide order dated 5.12.1994, set aside the demolition orders and granted a fresh opportunity of hearing to be given to the owner/builder. The Zonal Engineer (B)/S.P. Zone decided and remanded the case, vide his order of 23.1.1995, holding that there was unauthorized construction. The said order was also challenged by the owner/builder in appeal No. 82/AT/MCD/95 before the appellate tribunal. It was averred that the above appeal was pending.

Respondent MCD also gave particulars of the unauthorized construction, having been booked vide file No. 175/BUC/SPZ/93 dated 20.9.1993 where by unauthorized construction of 14 shops at first floor as well as on second floor was alleged. Show cause notice was issued on 20.9.1993, followed by demolition notice No. 119329 dated 27.9.1993, resulting in demolition order dated 6.10.1993 being passed. It was claimed that from 6.10.1993 demolition action was tried seven times between October, 1993 to January, 1994, but could not be taken due to non-availability of the police force. It is claimed that thereafter Jiwan Kumar, respondent No. 2 further indulged in unauthorized construction by constructing 11 shops on the second floor and ground floor of the premises. This construction was again booked vide filed No. 216/B/4C/SPZ/93 dated 27.10.1993, comprising unauthorized construction of 12 shops on the existing walls at second floor and further unauthorized constructions of 11 shops along with stair case at the third floor. Pursuant thereto show cause notice No. 119378 dated 27.10.1993, was issued by the MCD culminating in the demolition order dated 12.11.1993.

The MCD itself avers in the affidavit that the property was sealed on 18.1.1994, 29.1.1994, resealed on 30.11.1994 and again sealed on 20.11.1995. Thereafter as noticed earlier, demolition orders were challenged in two appeals bearing No. 18/AT/MCD/94 titled Jiwan Kumar vs. MCD and Appeal No. 82/AT/MCD/95. The order dated 23.1.1995, passed by the ZE(B) S.P. zone in the remanded case was challenged by Jiwan Kumar in appeal No. 82/AT/MCD/95 before the learned Appellate Tribunal. It was in these circumstances, it was contended that the MCD had taken action in accordance with law and hence the writ petition did not survive.

The writ petition was thereafter adjourned from time to time to ascertain the status from MCD with regard to disposal of the pending appeals.

Thereafter on 5.7.2000, an affidavit of Mr. C.B. Singh, Executive Engineer was filed wherein after recapitulating the filing of the appeal before the appellate tribunal by respondent No. 2 Jiwan Kumar, it was averred that after the remand of the case by the Tribunal vide order dated 5.12.1994, the case was heard by the Zonal Engineer (B) S.P. Zone from time to time and a decision was taken on 22.1.1999 by respondent MCD. It was averred that the case remanded vide appeal No. 82/AT/MCD/95 was also remanded back to the Zonal Engineer and this matter was also decided vide order dated 22.11.1999. By the above order, case files pertaining to unauthorized construction were directed to be closed. Relevant extract from the order dated 22.1.1999, is reproduced for facility of reference:

The contention of Shri Jeewan Kumar in the reply filed before the ZE(B) and before at/MCD that his building is old one and he had carried out the repairs which are permissible within the purview of B.B.L. and DMC Act. The case totally revolves along with the inspection form serial No. 62371. This inspection form shows 53 shops at the site existed at the time of inspection form, prepared on 31.5.1983 and ratable value with effect from 1.4.1983. FIR prepared by the then JE of ward No. 82 reflects that booking was made on completion of unauthorised construction of 14 shops at first floor, second floor as per rough sketch below. No labour have been shown at the site which shows that no work was seen at the time of inspection and this booking is not made by JE(B) at his own and booking is made as per orders of ZEW(B) and compliance of the letter from co-ord Department vide No. 1081 dated 16.09.1993. The booking is not at his inspection and shown simple a compliance of the letter from the co-ord, department. Now it cannot be established that this unauthorized construction was carried out on 20.9.1993 and as per inspection form No. 62371 existed at the time of inspection by AZI on 12.2.1983. Now construction carried out before 31.12.1989 cannot be demolished as per orders of the Commissioner issued in the year 1990 and this orders of the Commissioner has been upheld by Hon''ble Court. Demolition Notice which was treated as show cause by the AT/MCD is hereby withdrawn and case is closed and file is consigned to the record.

The Court noticing the volte face in the affidavit dated 5.7.2000, filed by the MCD directed the Municipal Engineer to be present. The Senior officer of MCD thereafter submitted before the Court that the order of the Commissioner was not understood by the dealing Junior Engineer and the affidavit had been erroneously filed. It was further stated before the Court that a vigilance enquiry had been instituted and action would be taken after the report is submitted. Counsel for the MCD submitted that the affidavit filed by the Executive Engineer, Mr. C.B. Singh was without application of mind and the same was in good faith. Leave was sought to file a fresh affidavit by Mr. C.B. Singh.

Mr. C.B. Singh, Executive Engineer, filed an affidavit dated 10.10.2000, in which it was stated that he had joined as the Executive Engineer S.P. Zone on 23.3.2000 and the affidavit had been prepared by Mr. Ashok Kalyan Z.E.(B). It was put up before him for signatures without the enclosure and he signed the affidavit in good faith. He submits that Mr. Ashok Kalyan, ZE(B) had passed the orders for withdrawal of demolition notice on the basis of circular, which was mentioned in his affidavit. In short, it was pleaded that the affidavit was filed based on the input given by Mr. Ashok Kalyan, Z.E.

It is also the admitted position that pursuant to the vigilance enquiry, a recordable warning had been issued to Mr. C.B. Singh, Executive Engineer (B) and Mr. Ashok Kalyan was suspended. The conclusion reached in the Vigilance Enquiry is that Mr. Ashok Kalyan had misused his power to withdraw the demolition order and close the case of unauthorized construction. Further, there was no material or any order/circular shown by Ashok Kalyan that unauthorized construction prior to 1989, could not be demolished.

The position which emerges finally is that as a result of an order passed in the remanded cases by the MCD appellate tribunal, the MCD vide order dated 22.1.1999 passed by the Zonal Engineer (Building) has directed the withdrawal of the demolition notices and orders. This has been done primarily on the ground that the unauthorised construction complained of was carried out prior to 1989. Further that such construction was not liable to be demolished in terms of directions of the Commissioner, MCD and the existing circulars. Further, the show cause notices issued in the instant case did not show or establish that unauthorised construction was being carried out.

During the course of writ proceedings, counsel for MCD submitted that they would take corrective action with regard to the order dated 22.1.1999 and pass such further orders as are warranted. The Court was informed that a fresh show cause notice to respondent No. 2 in respect of the unauthorized construction was sought to be issued. This, it was submitted, was proposed to be done in view of the order passed by the Assistant Engineer revoking the demolition order. As noted earlier by the order dated 22.1.99, the Asstt. Engineer had reached the conclusion that it could not be established on record that the construction was carried out on 20.9.1993. Further that as per a circular unauthorized construction prior to 31.12.1989, was not to be demolished. This was the basis for revoking the demolition orders. Learned Counsel for MCD had submitted that the legal opinion formed by MCD was that order dated 22.1.1989 passed by the Assistant Engineer could not be reviewed as the officer had been suspended and hence the best course of action was the issuance of the show cause notice.

Learned Counsel for the petitioner Mr. Manmohan submitted that the course sought to be adopted by MCD would give a fresh lease of life to this prolonged litigation and will result in commencement of yet another round. He submitted that the order was reviewable either in exercise of inherent powers or could be rescinded by Commissioner of MCD or other Competent Authority. Further, that the issuance of a fresh show cause notice negates all the earlier show cause and demolition notices. Counsel for the petitioner further submitted that the order dated 22.1.1999 was non est and not based on any material and was a result of fraud and collusion. Learned Counsel for MCD also did not dispute this submission.

In the circumstances, counsel for respondent No. 2 was given an opportunity to show cause as to why order dated 22.1.1999 be not recalled or set aside? Learned Counsel for respondent No. 2 sought time to file a reply and written submissions. Thereafter, counsel for respondents stated that he does not wish to file reply and would like to argue the matter.

Counsel for respondent No. 2 attempted to urge that the order passed by the Zonal Engineer was appealable under the provisions of Section 343 and an appeal had not been preferred by MCD. As repeated adjournments were being sought, counsel for the petitioner filed his synopsis of submissions Respondent No. 2''s counsel has also filed his reply thereto but sought time for oral arguments to supplement the same. Counsel for respondent No. 2 was thereafter heard.

The present case is replete with methods and strategism by which building bye-laws can be violated with impunity and unauthorized construction carried out and retained in the face of demolition orders. In the instant case, there were number of sealing orders, demolition notices and orders which have been turned ineffective by a seemingly innocuous interpretation of a circular, which has not been produced before the Court. Legitimacy and protection from demolition was conferred on the plea of construction being prior to 31.12.1989, for which there is no legal basis. As a result of the vigilance enquiry, a recordable warning was issued to one officer who had filed the affidavit evidencing the volte face and a suspension order to the officer passing the order in question. Issuance of a fresh show cause notice by MCD, would have the effect of negating the demolition and show cause notices already issued and the proceedings in the remanded cases.

Counsel for the parties have addressed me on the power of the Commissioner to review, recall or rescind an order passed. It is correct that as long as the order dated 22.1.1999, passed by the Zonal Engineer(B) remains in force, a fresh show cause notice would be of no avail apart from unnecessarily prolonging the proceedings. In my view, based on the admitted position on record, with regard to the construction which have been admittedly carried out without any sanction, the demolition orders and sealing orders having been turned ineffective, either by a builder/owner who operates with impunity under the benign umbrella of sympathetic officers of the MCD, the present case is a fit case, where this Court should invoke its extra-ordinary jurisdiction under Article 226 of the Constitution of India for quashing the order dated 22.1.1999.

An opportunity to show cause against the quashing and recalling of order dated 22.1.1999, had been provided to the respondent. As regards the order of 22.1.1999, it is to be noted that the alleged instruction of the Municipal Commissioner dated 1990, that no action was to be taken against unauthorized construction prior to 1989 has not been produced.

Learned Counsel for the petitioner had cited several authorities in support of his contention that the Commissioner in exercise of power u/s 59 of the MCD Act could recall or rescind the order. In my view, as noted earlier, this is a fit case where this Court itself should mould the relief in the present writ petition, taking into account the subsequent developments and pronounce on the validity of order dated 22.1.1999 to put an end to this prolonged litigation. This would prevent the proceedings getting enmeshed once again in the quagmire of litigation, wherein the orders of the Commissioner are challenged in writ petition.

Let me at this stage consider the objections sought to be raised by the respondent to the court adjudicating an order dated 22.1.1999.

Mr. Ansari urged that the original prayer made in the writ petition stood satisfied with the MCD having initiated action against unauthorized construction culminating in the demolition order. The demolition orders having been set aside in appeal, were remanded to the Zonal Engineer who reached the conclusion that the construction in question was an old one. Hence there was no cause for issuance of a show cause notice and the file was correctly directed to be closed vide order dated 22.1.1999. Mr. Ansari submitted that the Zonal Engineer had duly considered the submission of respondent No. 2 that it had only carried out repairs, which were permissible under the building bye-laws and DMC Act. He submits that an inspection form prepared on 12.2.1983, showed the existence of 53 shops and rateable value had been fixed therefor from 1.4.1983. The Zonal Engineer had considered the documents produced before him and noted that in 1993, when the unauthorized construction was stated to have been carried out, no labour was shown at the site and no work had been seen and the booking was not by the Junior Engineer on his own but as per orders of the Zonal Engineer (Building) and in compliance of the order from Coordinate Department. Hence, the booking for unauthorized construction was not on the basis of inspection and if the reliance was to be placed on the inspection by AZI on 12.2.1983, the shops already existed. Further, that new construction carried out before 31.12.1989 cannot be demolished as per the orders of the Commissioner issued in the year 1990.

Learned Counsel for MCD respondent had produced the records to show that the unauthorized construction had been booked on 28.9.1993 and 27.10.1993. The booking of construction dated 27.10.1993 had been made at an ongoing stage showing two masons and four labourers at work. This, according to him, showed that the building was under construction. The demolition notice u/s 343(1) on 3.11.1993 further added that the owner/builder had further carried out the unauthorized construction of 11 shops along with stair cases at 3rd floor. Mr. Manmohan, learned Counsel for the petitioner, submitted that the order dated 22.1.1999 was a consequence of connivance and collusion with the municipal officers and was based on fraud. He submitted that the order was a result of fraud and collusion and was thus liable to be set aside. Learned Counsel relied on the under-mentioned authorities to urge that the order dated 22.1.1999, was non est and could not be sustained:

Lazarus Estates Ltd. vs. Beasley (1956) 1 All ER 341;

S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. and others,

3 Indian Bank Vs. M/s. Satyam Fibres (India) Pvt. Ltd.,

United India Insurance Co. Ltd. Vs. Rajendra Singh and Others,

In Lazarus Estate Ltd. (supra) L.J. Denning observed that "No court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a court, no order of Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything......." In the same case, L.J. Parker held ".... fraud if proved vitiates all transactions known to the law of however high a degree of solemnity."

In S.P. Chengalvaraya Naidu (supra) it was laid down "A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another''s loss. It is a cheating intended to get an advantage...."

In Indian Banks (supra) it was held that "Since fraud affects the solemnity, regularity and orderlines of the proceedings of the Court and also amounts to an abuse of the process of court, the courts have been held to have inherent power to set aside an order obtained by fraud practiced upon that Court."

In United India Insurance Co. Ltd. (supra) it was observed "Fraud and justice never dwell together (fraud et jus munguam cohabitant) is a pristine maxim which has never lost its temper over all these centuries." Lord Denning observed in a language without equivocation that "no judgment of a court, no order of a Minister can be allowed to stand if it has been obtained by fraud, for, fraud unravels everything. For a High Court in India to say that it has no power even to consider the contention that the awards secured are the by-products of stark fraud played on a tribunal, the plenary power conferred on the High Court by the Constitution may become a mirage and people''s faith in the efficacy of the High Courts would corrode. Hence the remedy to move for recalling the order on the basis of the newly discovered facts amounting to fraud of high degree, cannot be foreclosed in such a situation."

Without getting into the determination of factual controversies as to whether unauthorised construction was being carried out when the same was booked or not, one thing is clear that the main plank and basis of the order dated 22.1.1999, is that unauthorised construction prior to 1989, was not to be demolished. The said instruction or order of the Commissioner has not been produced. In any case, the legal position is that constructions carried on after coming into force of the Delhi Municipal Corporation Act, are required to be in conformity with the building bye-laws and the provisions of the statute. Unless the unauthorized construction falls within the compoundable limits and has been regularized, the same would be liable to be demolished. Constructions made without sanction and beyond the compoundable limits are liable to be demolished. It is not the case of respondent No. 2 that construction was carried out with any prior sanction. The only contention is that the unauthorized construction as existing prior to 1989 cannot be demolished. There is no legal basis to sustain this view. The impugned order dated 22.1.1999 is, accordingly, quashed. The parties will appear before the Zonal Engineer (B) on 12.5.2003 at 2 P.M. The Zonal Engineer (B), M.C.D. will decide the cases remanded by the MCD appellate Tribunal in appeal No. 18/AT/MCD/94 and 82/AT/MCD/95 within two months from today in accordance with law.

The writ petition is allowed in the above terms.