in the court of shri raj kumar chauhan, ad&sj-cum...

Appeal no. 433/18, 435/18,436/18 (Sant Parmanand Blind Relief Mission Vs. North DMC) of 37

IN THE COURT OF SHRI RAJ KUMAR CHAUHAN, AD&SJ-CUM-PRESIDING OFFICER: DELHI MUNICIPAL APPELLATE

TRIBUNAL: TIS HAZARI COURTS, DELHI

Appeal no. 433/18, Appeal no. 435/18 Appeal no. 436/18

Sant Parmanand Blind Relief Mission

(Regd. Under the Societies Act)

Through its Vice President Dr. Shekhar Agarwal

18, Sham Nath Marg, Civil Lines,

Delhi – 110054 ……Appellant

Versus

North Delhi Municipal Corporation

Through its Commissioner,

Dr. SPM Civic Centre,

Jawahar Lal Nehru Marg, Minto Road, New Delhi-06

...Respondent

Date of Institution of the appeal no. 433/18 : 04.07.2018 Date of Institution of the appeal no. 435/18 : 05.07.2018 Date of Institution of the appeal no. 436/18 : 05.07.2018 Date of pronouncement of order : 26.04.2019

ORDER

1. Vide this common order, I propose to dispose off three appeals

of the appellant. The appeal bearing no. 433/18 is instituted u/s 347

of DMC Act against the order dated 23.06.2018 wherein building plan

sanctioned vide File No. 74/B/HQ/NDMC/2012 dated 19.08.2014 has

been revoked in respect of building constructed at plot no. 1, 2 & 3,

Park Area, Yamuna Bazar, Delhi (hereinafter referred as ‘property in

question’).


2. Appeal no. 435/18 has been instituted u/s 347(b) of the DMC

Act challenging the sealing order dated 28.06.2018 with respect to

‘property in question’ which has been sealed on 30.06.2018. Appeal

No. 436/18 instituted against the demolition order dated 28.06.2018.

3. Brief facts as stated in the appeals are that the appellant is a

charitable trust/institution which was established in the year 1933 at

Rewari, Haryana and the sole object of the mission was to provide

free treatment to the needy persons of the society, particularly the

down trodden people and initially its scope was limited to eye ailments

only.

4. In recognition of the work being done by the mission, the

appellant was allotted a piece of land bearing plot nos. 1, 2 & 3

measuring 3392.159 sq. yards on Perpetual lease, situated at Park

Area, Yamuna Bazar, Delhi already referred as the property in

question by the erstwhile Delhi Improvement Trust (DIT) in the year

1955; thereafter building was constructed in the year 1955 in

accordance with the plans sanctioned by Notified Area Committee as

per Resolution No. B-437(1) dated 1955. Since then the appellant

had been running a free dispensary at the location which is benefiting

a very large population of the weaker sections of the society; to fulfil

its commitments towards the society, the appellant decided to

construct a super specialty hospital at the existing site and

accordingly submitted the proposal of building plans of the new

hospital complex to DDA for necessary sanction and approval.

However, the appellant was informed by the DDA vide their letter no.

f-13(189)/2001/Bldg./171 dated 09.05.2008 that the building plans for

the said scheme would be considered only if the land use of the plot is

changed in the MPD-2021.

5. Delhi Improvement Trust was incorporated under the United

Provinces Town Improvement Act 1919 as extended to State of Delhi.


Delhi Improvement Trust was looking after and managing the

development of land and building activities in Delhi; functions of Delhi

Improvement Trust was taken over by the Delhi Development

Authority (DDA) as per DD Act, 1957 w.e.f 30.12.1957. Delhi

Improvement Trust prepared the layout plan of the area known as

“Yamuna Village Scheme” in the year 1953-1954 and different “land

use” was provided in the layout plan for respective plots like hospitals,

religious places etc.

6. Delhi Improvement Trust allotted the land measuring 3392.10

sq. yards on 17.09.1954 to the appellant for Charitable hospital

building and construction had to be carried out within one year i.e

upto 17.09.1955 in accordance with the building plan approved by the

Lessor on 17.09.1954; premises was allotted under lease for the

purposes of ‘Charitable hospital building’ as the premises had been

earmarked for hospital in the layout plan prepared by the Delhi

Improvement Trust; Perpetual lease was executed by Delhi

Improvement Trust in favour of the appellant on 22.03.1956. As per

clause-VI of the Perpetual Lease grant is made under the authority of

government and the provisions of Government Grant Act (XV 1895)

shall apply for this grant.

7. It is thus stated that it is Government grant governed by

provisions of Government Grants Act and the terms and conditions

provided in the lease will prevail notwithstanding any other legislation

which are contrary to the terms of lease as is provided under section

3 of the Government Grant Act. Property in question had been leased

out to appellant for the purpose of “Charitable Hospital” and as such

the ‘land use is hospital’.

8. Appellant raised construction within stipulated period as was

sanctioned by Notified Area Committee as per Resolution no. B-

437(1) dated 1955 and since then appellant was running free


dispensary in the property providing medical facilities to large

population of weaker section of society.

9. DDA for the first time prepared the master plan in the year

1962. Zonal development plan was prepared by DDA and due to

inadvertence they had shown the area where the property in

question as well as other properties exists as ‘District Park’. MPD-

2001 came into force w.e.f 01.08.1990 and thereafter amendments

were made from time to time. MPD-2021 came into force w.e.f

07.02.2007 in exercise of power conferred u/s 7 to 11 & 11A of DD

Act and Delhi was divided into various zones from A to H in the

master plan/earlier zonal development plan which were lateron

increased from A to P.

10. The ‘property in question’ is situated in Zone-‘O’ and zonal

development plan for Zone-O was prepared in 2008 and objections

were invited from general public. Even in the Zonal development plan

of Zone-O, it is clearly mentioned that ‘land was allotted by Delhi

Improvement Trust for hospital and shown as ‘District Park’. In the

note of proposed land use, it has been mentioned that area known as

Yamuna Bazar located Southern of Nigam Bodh Ghat, a layout plan

was prepared by Delhi Improvement Trust and allotment of land has

been done by Delhi Improvement Trust for hospital and for Gas

godown, may be considered for re-development/urban within the

framework of Government policy. The Zonal plan for Zone-O

published on 08.03.2010 known as River Yamuna/River front which

clearly shows that Delhi Improvement Trust had prepared the layout

plan and allotted the land for hospital.

11. Appellant applied for sanction with DDA on 09.05.2008 and

DDA has stated that land use shown in the zonal development plan of

Zone-O is ‘District Park’ and land use was changed by the

Government of India. DDA in exercise of powers conferred u/s 11-A of


DD Act and approved the change of land use of the property in

question from ‘recreational/district park’ to ‘public/semi-public (PSI-

hospital)’ vide notification bearing no. 1639 (E) dated 19.07.2012

published in the Gazette on 19.07.2012 in part-II Section 3 Sub-

section (ii) extra ordinary and also issued letter dated 07.08.2012.

12. In view of the Gazette notification dated 19.07.2012 and in view

of the fact that Government grant is for hospital and as such land use

of the property is hospital (public/semi public activity).

13. Appellant applied sanction of building plan for hospital purposes

and the same were sanctioned by Municipal Corporation vide file no.

74/B/HQ/NDMC /2012 and released on 19.08.2014.

14. Under building byelaws-1983 which were applicable at the time

of sanction of building plans, there is no provision under Byelaw 6.2.9

for obtaining No objection Certificate from the Lessor once Lease

Deed is executed. Despite the fact that there is no rules and

regulations for seeking No Objection Certificate (NOC) from DDA

while sanctioning the building plans, a condition was imposed by the

Corporation that NOC be obtained from DDA and in case NOC has

not been submitted, then building plans shall be deemed to be

infructuous. DDA granted the no objection for raising construction in

terms of the lease and provisions of MPD-2021 vide letter dated

20.07.2015. Thereafter, in pursuance to letter of Corporation dated

07.04.2016, another letter was written by DDA dated 12.05.2016 and

16.05.2016 thereby granting NOC for raising construction as per

Lease Deed after verifying the title of the plot.

15. Municipal Corporation had sanctioned the building plan on

19.08.2014. Appellant commenced the erection in the year 2014-15,

immediately after obtaining sanction. Although, there was no provision

under the Bye laws 6.2.9 for obtaining No Objection Certificate from

the Lessor, still Corporation imposed such condition because Lease


Deed was dated 22.03.1956 and once Lease deed had been

executed, so there is no requirement of the law under byelaws 6.2.9

of Building Bye Laws, 1983 to obtain the No Objection Certificate from

the Lessor. In order to avoid any complication at later stage appellant

has obtained NOC from DDA which was granted on 20.07.2015,

12.05,2016 and 16.05.2016. Appellant has raised construction as per

sanctioned building plan dated 19.08.2014.

16. Appellant submitted revised building plan for sanction on

29.07.2015 and in this case file for the first time Junior Engineer put a

note seeking ‘clear cut No Objection Certificate from DDA’ and it was

in this file for the first time the question of clear-cut No Objection

Certificate from DDA was raised in the note dated 13.04.2016.

Appellant wrote a letter dated 06.06.2016 for withdrawal of the revised

building plan submitted on 29.07.2015. Accordingly, a note was put

up on 23.06.2016 and revised building plan was rejected on

24.06.2016.

17. Since the revised building plans for sanction had been

withdrawn and same were rejected on 24.06.2016, as such the

sanction granted on 19.08.2014 shall continue.

18. DDA wrote a letter dated 16.04.2018 in pursuance to the letter

of MCD dated 07.04.2016, 09.09.2016, 09.12.2016 and 16.02.2018.

In the said letter dated 16.04.2018, DDA has asked the corporation

immediately revoke the plan as DDA cannot grant NOC for any kind

of construction activities till hospital being on demarcated flood plains.

The said letter of DDA is in contravention of Map attached to Zonal

development plan and clause 9.2.2(vi) which clearly shows that flood

plain is between embankments and the property in question is clearly

shown to be outside the flood plain in the Map attached to the Zonal

Development plan.


19. As per Show cause notice under section 343(1) of the DMC Act

dated 11.01.2017 the whole construction has been shown as

unauthorised construction due to violation of standard building plan

no. 74/B/HQ/NDMC/20/2012 dated 19.08.2014 by non-submission of

clear cut NOC from DDA to Building Headquarter of North DMC i.e

construction of building for hospital in ‘O’-Zone, standard building plan

has become infructuous. The very basis of initiation of proceedings is

arbitrary, bad in law and contrary to the provisions of the Act and

Byelaws because building plan was released on 19.08.2014 and

appellant has already submitted NOC from DDA dated 20.07.2015,

12.05.2016 and 16.05.2016. Once NOC from DDA has been

submitted in terms of the sanction granted by the corporation then

there is no question of submissions of clear cut NOC from DDA

because said question has arisen only while considering the Revised

building plans by the appellant which was later on withdrawn and

rejected on 24.06.2016. Building Byelaw, 2016 came into force w.e.f

May, 2016 and under byelaw 2.12 documents to be submitted are

similarly provided under byelaw 6.2.9 of BBL-1983 i.e NOC is

required only in case where there is no lease. There is no provision

for obtaining clear cut NOC from the Lessor/DDA. Moreover, NOC

from DDA is to be in terms of Lease dated 22.3.1956 as well as MPD-

2021 which DDA had already granted on 20.07.2015 and reiterated

on 12.05.2016 and 16.05.2016.

20. Similarly, show cause notice u/s 345A of the DMC Act is

alleged to be bad in law and order so passed is arbitrary, illegal and

bad in law and liable to be quashed. Regarding order under section

338 of the DMC Act dated 23.06.2018, it is submitted that order has

been passed with predetermined and prejudged mind without issuing

show cause notice as per requirement under section 338 of the DMC

Act.


21. Therefore the very basis of initiating proceedings by

Corporation u/s 343(1) is erroneous and contrary to law. The

demolition action, sealing action and revocation of the sanctioned

building plan on the basis of letter of DDA dated 16.04.2018 is illegal

due to predetermined mind of the authorities.

22. It is further stated that the whole issue relating to the judgment

of National Green Tribunal in Manoj Mishra’s case and property is

allegedly falling in flood plain as per letter dated 16.04.2018 of the

DDA.

23. It is submitted that said judgment is not applicable to the

present case as there is no flood plains shown in the map attached to

Zonal Development plan nor there is any prohibition in the judgment

of NGT. There is embankment controlling the free flow of river

Yamuna and the premises of the appellant falls outside the

embankment. Judgment of Hon’ble Supreme Court of India says that

developments in river front in Zone-O shall be in conformity with the

land use provided in Zonal Development plan. In the present case the

land use is ‘hospital’ as is clear from the notification dated 19.7.2012

and 07.08.2012.

24. Once DDA while preparing the Zonal development has clearly

shown in the Zonal development plan and map attached to Zonal

Development plan that premises is not falling in ‘flood plain’, then how

now DDA can say that it is falling in flood plain. DDA has acted

contrary to law. Master plan and zonal development plans are

prepared in exercise of powers conferred u/s 7, 11 & 11A of Delhi

Development Act and the same is sacrosanct. Once the area where

the property is situated is clearly shown beyond flood plain, the letter

dated 16.04.2018 of DDA is contrary to Zonal development plan itself.

The said letter is erroneous and any order passed on the basis of

such erroneous interpretation of law is bad in law. It is therefore


prayed in appeal u/s 347 of the DMC Act bearing no. 433/18 that the

impugned order dated 23.06.2018 whereby sanction building plan

released vide file no. 74/B/HQ/NDMC/2012 dated 19.08.2014 has

been revoked in respect of building constructed on the property, be

set-aside/quashed and respondent be restrained from taking any

action in respect of property in question.

25. Similarly, in appeal no. 435/18 under section 347B of the DMC

Act it is prayed that respondent be directed to deseal the property in

dispute.

26. In appeal no. 436/18 under section 343(2) of the DMC Act,

appellant has prayed that demolition order dated 28.06.2018 in

respect of property in question be set-aside and quashed.

27. No separate status report was filed by the respondent in appeal

no.433/18 pertaining to the revocation of sanction building plan. In the

status report dated 17.07.2018, it is stated that application for

sanctioned building plan of the appellant’s hospital was considered

vide file no. 74/B/HQ/NDMC/2012 dated 06.02.2012 and on the basis

of the documents submitted by the appellant building plan was

sanctioned by the Building plan Committee of Head Quarter in its

meeting held on 08.07.2014 with the condition that the

applicant/appellant shall submit the attested copy of the NOC from

DDA to building head quarter at B-1 stage failing which sanctioned so

accorded shall become infructuous and null and void. Thereafter

revised building plan application dated 29.07.2015 was received by

Building headquarter. Appellant also submitted a copy of NOC

issued by the Deputy Director, DDA dated 20.07.2015. It is further

submitted that in the meanwhile National Green Tribunal (NGT) in its

order dated 13.01.2015 in the matter Manoj Mishra Vs Union of India

& Ors had directed the concerned agencies to prohibit any

construction activity in the demarcated flood plains. As per order of


NGT, matter was put up before the competent authority regarding

NOC submitted by the appellant, as the same was not in order. It was

also directed to the appellant to seek clear cut NOC from DDA and to

stop construction work at site till the receipt of clear cut NOC. Various

work stop notices were issued between 19.04.2016 to 01.05.2018 to

the concerned SHO of the area as well as owner/director of M/s Sant

Parmanand Blind Relief Mission to stop construction. The appellant

despite service of the work stop notice continued with the construction

and has raised construction in the shape of entire basement plus

three and ground plus 8 floors and deviations against the sanctioned

building plan which was booked on 11.01.2017 and personal hearing

was also afforded to the director/owner of the premises. Again and

again time was sought by the owner/management for producing NOC

from DDA but they failed to submit NOC from DDA for raising

construction. In the meanwhile, a letter was received from DDA vide

no. S.I(65)/2015/OSB/637 dated 16.04.2018 which clarified that the

NGT order dated 13.01.2015 prohibit the concerned agencies to carry

out any construction activity on the demarcated flood plains of

Yamuna and the Building plan sanctioned on 19.08.2014 may be

immediately revoked and the DDA cannot grant NOC for any kind

of construction activity at the hospital being on the demarcated

flood plains of Yamuna. After receiving the said letter from DDA that

the NOC cannot be granted for construction at demarcated flood

plains, Building Plan Committee meeting was held on 21.06.2018 and

decided that the sanctioned building plan is revoked with immediate

effect. The letter of revocation of sanctioned building plan was issued

on 22.06.2018. After rejection of the sanctioned building plan, all the

construction becomes unauthorized and demolition order was passed

on 28.06.2018 and sealing action u/s 345A of the DMC Act was also

initiated on 10.01.2017 and after following due process of law sealing


order was passed on 28.06.2018 and entire property was sealed on

30.06.2018. The revocation of the sanctioned building plan,

demolition and sealing order mentioned above has been challenged

in these appeals.

28. I have heard Ld counsel for the parties at length. Appellant and

respondent has filed written submissions.

SUBMISSIONS OF APPELLANT

29. In the written submissions, appellant has argued that Delhi

Improvement Trust (DIT) allotted the land admeasuring 3392.10 sq.

Yards on 17.09.1954 for charitable hospital building and construction

was to be carried out within one year upto 17.09.1955 in accordance

with the building plan approved by the Lessor on 17.09.1954 . The

premises was allotted under lease for the purpose of ‘charitable

hospital building’ as the premises had been earmarked for hospital in

the layout plan prepared by the DIT. Perpetual Lease was executed

by DIT in favour of the appellant on 22.03.1956. As per clause-VI of

the Perpetual Lease, it is stated that this grant was made under the

authority of Government and the provisions of Government Grant Act

(XV 1895) shall apply to this grant. It is therefore argued that since it

is the government grant under the Government Grant Act and terms

and conditions provided in the lease will prevail notwithstanding any

other legislation which is contrary to the terms of the lease as

provided under section 3 of the Government Grant Act. It further

argued that appellant raised the construction within stipulated period

as was sanctioned by Notified Area Committee as per resolution no.

B-437(1) dated 1955 since then appellant was running free

dispensary in the property in question.

30. It is further argued that DDA for the first time prepared Master

plan for Delhi in the year 1962 which came into force on 01.09.1962.


Thereafter, amendments were made from time to time. MPD-2021

came into force w.e.f 07.02.2007 and Delhi was divided into various

zones from A to P. Property in question is situated in zone-O and

Zonal Development Plan from Zone-O was prepared in 2008 and

objections were invited from general public. It is further argued that

area has been shown as District Park in Zonal development plan

prepared under MPD-2021. The zonal development plan for Zone-O

was approved by Government of India and thereafter same was

notified and Gazette Notification was published on 08.03.2010. Thus,

zonal development plan for zone-O known as River Yamuna/River

front clearly shows that DIT had prepared the layout plan and allotted

land for hospital.

31. The appellant applied for sanction with DDA on 09.05.2008

and objections were filed by appellant in the year 2012 with regard to

the land use shown as ‘district park’. DDA in exercise of its powers

conferred u/s 11-A of DD Act had approved change of land use of the

property in question from ‘recreational/district park’ to ‘public/semi-

public (PSI-hospital))’ vide notification bearing so no.1639(E) dated

19.07.2012. In view of the Gazette notification dated 19.07.2012 and

in view of the Government Grant is for ‘hospital’ as such land use of

this property is hospital (public/semi-public activity).

32. Appellant applied for sanction of building plans for hospital

purposes and the same was sanctioned by Municipal Corporation

vide file no. 74/B/HQ/NDMC/2012 and realised on 19.08.2014. It is

further argued that under Building Byelaws, 1983 which were

applicable at the time of sanction of building plans, there is no

provision under Byelaw 6.2.9 for obtaining NOC from the Lessor once

Lease Deed is executed.

33. DDA granted no objection for raising construction in terms of

the lease and provisions of MPD vide letter dated 20.07.2015.


However, in pursuance to letter of corporation dated 07.04.2016,

another letter was written by DDA dated 12.05.2016 and 16.05.2016

thereby granting NOC for raising constructions as per MPD. It is

argued that corporation had imposed a condition for obtaining NOC

from Lessor which was contrary to the law laid down in “C.L. Batra Vs.

MCD” reported as 68 (1997) DLT 817. However, in order to avoid any

complication at later stage, appellant has obtained NOC from DDA

which was granted on 20.07.2015 , 12.05.2016 & 16.05.2016. Since

NOC has already been granted by DDA, there is no question of

sanction having becomes infructuous.

34. It is further argued that sanction granted on 19.08.2014 has

been revoked when revised building plan was submitted and clear

cut NOC having not been placed by the appellant. It was during

consideration of revised building plan, for the first time Junior

Engineer has put a note for seeking ‘clear cut NOC from DDA’ and

the question of clear cut NOC from DDA was raised in the note dated

13.04.2016. The said note was put up on 23.06.2016 and revised

building plan was rejected on 24.06.2016. Therefore the documents

sought for during revised plan for sanction cannot be made the basis

of revoking the earlier granted sanctioned building plan on the ground

of ‘no clear cut NOC’. It is therefore argued that due to rejection of the

revised building plan, the original sanction will continue. A reliance

has been placed on ‘Chet Ram Vahist Vs MCD, 1981 Rajdhani Law

Reporter SC 200, wherein it was held that till revised plan is

approved, original plan shall continue to operate and construction has

to be carried out in accordance with said sanction.

35. Regarding the flood plain, it is argued that property in question

is outside the flood plain and there is embankment and moreover

land use provided in the layout plan prepared way back in 1953-54

was hospital and appellant’s building was constructed for hospital way


back in 1955 after obtaining sanction from competent authority. Even

in the zonal plan prepared for river Yamuna Zone-O, it is categorically

provided that layout plan has been prepared by the DIT and land

allotted for hospital.

36. Regarding the judgment passed by NGT in Manoj Mishra’s

case which has been made basis for initiating proceedings under

section 343, 345A and 338 of DMC Act, it is argued that in Manoj

Mishra’s case, NGT was dealing with the encroachments on flood

plain, dumping of waste on river beds and on that basis, prayer was

made that all debris and other solid waste dumped in the river bed

should be directed to be removed and natural water body be restored

to its original form.

37. It is argued that judgment of Hon’ble NGT in Manoj Mishra’s

case is not applicable in the present case as property is falling outside

the flood plains and development has taken place only on the basis of

land use provided in Zonal development plan which was changed

subsequently after inviting objections.

38. Reliance is placed on ‘DDA VS Rajendra Singh’ , AIR 2010 SC

2516 and ‘Government of NCT of Delhi and others Vs. Sh. Anand

Arya and others, AIR 2016 SC 2999. On the basis of these

judgments, it is argued that once land use has been provided in the

Zonal Development plan and development is as per land use, then

the same cannot be said to be damaging ecology of Yamuna River

bed. It is further argued that in Anand Arya’s matter, Hon’ble Supreme

Court while adjudicating the Millennium Bus depot matter, after

considering the judgment of NGT in Manoj Mishra’s case, has held

that in the public interest, development shall be made on the basis of

land use and if authority changes the land use, then development can

take place. It is pertinent to mention here that in the Anand Arya’s

case (Supra) the area has been clearly shown in the map attached


with Zonal Development pertaining to zone-O to be falling in ‘flood

plain’ and still Hon’ble Supreme Court has directed that if land use is

changed by concerned authority, in that case, bus depot shall stand,

otherwise, bus depot shall be shifted from the site.

39. Regarding DDA Vs Rajendra Singh’s case (Supra), it is argued

that Hon’ble Supreme Court was dealing with Akshardham temple

and Common Wealth Games Village matter, which were shown to be

in the area falling in flood plain in the plan attached to Zonal

Development plan. Since land use of the property has been shown to

be for Games village as well as Akashardham temple, Hon’ble

Supreme Court has dismissed the objections. It is argued that

judgment of Hon’ble Supreme Court mentioned above are binding

precedents and there is no contradiction in the judgment of NGT and

Hon’ble Supreme Court. It is therefore argued that land use of the

property provided in the Zonal Development plan, coupled with the

map attached to Zonal development plan will have material bearing.

In the present case, land use of the property is hospital and falling

outside the flood plain, so there is no question of prohibition in the

developed activities being carried out by appellant in accordance with

law after obtaining sanction.

40. Regarding the letter dated 16.4.2018 of the DDA on the basis

of which sanctioned building plan has been revoked by the

respondent, it is argued that said letter of DDA is in contravention of

map attached to Zonal development plan and clause 9.2.2 (vi) which

clearly shows that flood plain is between embankments. In the

present case there is embankment and property in question is clearly

shown to be outside the flood plain in the map attached to zonal

development plan.

41. Regarding the demolition action u/s 343(1) of the DMC Act, it is

argued that show cause notice dated 11.01.2017 is arbitrary and bad


in law and being contrary to the provisions of the act and Byelaws.

Once NOC from DDA has been submitted in terms of sanction

granted by Corporation then there is no question of submission of

clear cut NOC from DDA especially after rejection of revised building

plan during consideration of which, Junior Engineer concerned has

raised the question of clear cut NOC. It is further argued that building

byelaws 2016 came into force w.e.f May 2016 are para-materia to the

provisions made in Building Byelaws 1983 and documents which are

required under 2.6.2 (b) and in new building Bye laws are same as

required under 6.2.9 of the Unified Building Byelaws 1983. As per

6.2.9, NOC only required in case there is no lease and as such there

is no provision for obtaining clear cut NOC from the Lessor/DDA. It is

argued that order dated 28.06.2018 u/s 343(1) of DMC Act is bad in

the eyes of law.

42. Regarding the sealing show cause notice dated 10.1.2018 and

sealing order dated 28.06.2018, it is argued that same are arbitrary,

illegal and bad in law and liable to be quashed.

43. Regarding revocation order u/s 338 of DMC Act dated

23.06.2018, it is argued that same has been passed with

predetermined and prejudged mind without issuing any show cause

notice, as is required u/s 338 of DMC act despite the fact that draft

show cause notice is placed on record. Therefore, the very basis of

initiating proceedings u/s 343(1) are erroneous and contrary to law.

SUBMISSION OF RESPONDENT

44. It is argued on behalf of respondent that sanction building plan

was granted on the basis of land use as per the Zonal development

plan and lease deed dated 22.03.1956 executed by DIT in favour of

the appellant with the condition that appellant shall submit the

attested copy of the NOC from the DDA to the building headquarter


at B-1 stage failing which said sanction would become infructuous.

Appellant has given undertaking to this effect which was submitted at

the time of release of sanctioned building plan to the appellant. It is

further argued that despite issuance of various work stop notices

appellant continued with the construction without submitting clear cut

NOC from DDA. It is further argued that vide order dated 16.04.2018

of the DDA it was clarified that DDA cannot grant NOC for any kind of

construction activity at the hospital which is in demarcated flood

plain. It is further argued that a writ petition no. 5343/2018 titled as

“N.K. Gupta Vs North DMC & Other is pending before the Hon. High

Court of Delhi and is fixed for 18.01.2019.

45. Lastly, it is argued that revocation order dated 21.06.2018

issued on the basis of rejection of NOC from DDA and consequently

sealing and demolition order dated 30.06.2018 and 28.06.2018 were

passed in accordance with law and appeals are liable to be

dismissed.

46. While hearing arguments on 03.01.2019, letter dated

16.04.2018 written by the Dy. Director (OSB) to the Commissioner

NDMC was brought to the knowledge of this Tribunal wherein Dy.

Director (OSB) DDA has observed that DDA cannot grant any NOC

for any kind of construction activity of hospital being on the

demarcated flood plains. It was argued on behalf of appellant that

there is no basis for the above observation that the site where the

hospital has been constructed is a demarcated flood plains as said

observation is in violation of Zonal development plan of Zone-O where

it has been shown in the map dated 30.06.2010 that the property in

question is outside the embankment and not forming part of

demarcated flood plains as defined in para.9.2.2.(vi) of the Zonal

Development plan. It was therefore ordered by this Tribunal that

source of information and the basis of the observation by the Dy.


Director (OSB) DDA in the letter dated 16.04.2018 needs to be

known. Accordingly, Dy. Director (OSB) was directed to produce the

original record regarding issuance of said letter. In compliance of said

directions, DDA filed report/status report on 12.04.2019. The material

points of the said status report are reproduced as under:-

“(1) That the DDA is filing the present reply in compliance of order dated 29.03.2019 passed by the Hon’ble Tribunal and the same is in continuation of earlier reply filed by DDA before this Hon’ble Tribunal. That in order to firm up stand of DDA a meeting was held on 04.04.2019 under the chairmanship of VC,DDA in the presence of Supdt Enginer/Irrigation & Flood Control-I, GNCTD and details of deliberation/decisions are as follows:-

(a) Representatives of Irrigation & Flood Control Dept. GNCTD intimated that on 20.03.2015, they had forwarded a map “once in 25 years flood plain” of River Yamuna to DDA, which was prepared in compliance of the directions of Hon’ble NGT dated 02.03.2016 in the matter of “Sh. Manoj Mishra Vs Union of India”. This map was prepared under the Supervision & Guidance of IIT Delhi by GSDL. The Hon. NGT have also directed DDA to physical demarcate the entire flood plain. The map got prepared by I&FCD, GNCTD was forwarded to DDA vide their letter dated 20.03.2015. Thereafter Chief Engineer (East Zone) DDA got the physical boundaries demarcated based on the Map received from I&FCD, CE(East) also intimated that the aforesaid Map alongwith ATR was submitted to Hon’ble NGT. (b) It was observed that DDA cannot ignore contents of the Map prepared and forwarded by I&FCD, GNCTD, which is the department for such matters. Pr. Commissioner (Coordn.) DDA received a Map on 15.03.2018 from Planning department. DDA source of which was stated tobe superimposition of simulation of 25 years return period flood plain of river Yamuna by Hydro-dynamic modelling and GSDL flood plain data 2010. In respect of the plot in question the two maps (I&FCD 2011 & GSDL 2010)


show two different positions with regard to the flood plain. (c) Clarification was sought from representative of I&FC Deptt. GNCTD whether the wall near Nigambodh Ghat is embankment or bund to which they explained/clarified that it is not a bund/embankment but merely a brick retaining wall for restricting the flow of water. (d) NOC dated 20.07.2015 given by DDA to Sant Parmanand hospital was with respect to construction/reconstruction of the building in terms of stipulated terms & conditions of the lease, provided lessee carries out construction in compliance of the existing civic laws/ by laws. (e) The opinion of Addl. Solicitor General as follows:-

(i) Thus having regard to all the above factors, this query is answered in the affirmative, that is to say that the Sant Parmanand hospital may be permitted to run at the said location as there are no legal impediments, or any directions, stopping the said operation. (ii) The judgment rendered by the Hon’ble Supreme Court in the matter of DDA Vs Rajinder Singh & Ors. Reported in (2009) 8 SSC 582 squarely applicable in the facts and circumstances of the present case wherein the Hon’ble Supreme Court held that on account of the Akshardham Embankment/Bund constructed the said location cannot be said to be flood plain. The said principal can be applied in the facts of the present case, which is supported by the observations of the CE(EZ) which has stated that a bund in the form of a wall 3mt high from Nili Chhatri underpass (near of 1 Railway bridge) to Ngam Bodh Ghat exist on the bank of the Yamuna opposite to Yamuna Bazar, and the flood does not spill over it. (iii) The plot in question falls under the jurisdiction of North DMC, so far as building by laws and Development control norms are concerned. DDA jurisdiction on the said plot relates with respect to the lease of the land only.

Based on the above discussion the following decisions were taken:


(i) There are two contradictory maps regarding the extent of the flood plains. DDA cannot deny contents of the Map got prepared by I&FC Deptt. GNCTD and forwarded to it vide letter dated 20.03.2015 and demarcation of flood plain on the ground was carried out by Engineering Deptt of DDA on its basis. As lot of buildings including residential building have already come up on the other side of the wall. Therefore, it is important that the wall is strengthened and well maintained. Also in case excess water flows in the area where people are residing, drainage should be developed. If need be, wall should be extended to protect remaining areas also. (ii) It was pointed out that as per lease the said use/construction is permitted. The lessee therefore does not require any NOC from DDA. The permissibility of the construction thereupon as per BBL/DCN etc is to be examined by the North DMC. (iii) DDA is not the authority to determine the flood plains of Delhi/Yamuna. Also DDA is not the authority to examine/decide the regulatory permissibility of construction on the said plot as it is not a notified area under DD Act. (iv) DDA will therefore go by the Map regarding 1 in 25 years flood plains given by I&FC Deptt. GNCTD. They may indicate if they have any further views or change in stand in this regard. (v) It was decided that the above stand/points may be conveyed to ATMC in the abovesaid case. This issue with the approval of VC, DDA. ”

47. The opinion of Ld ASG Sh. Atmaram N.S.Nadkarni dated

14.01.2019 is as under:-

“ a. Whether Sant Parmanand Blind Relief Mission may be allowed to run Sant Parmanand Blind hospital from its current place in view of the judgement of Hon’ble NGT Date 13.01.2015 passed in the case of Sh. Manoj Mishra Vs Union of India bearing O.A no. 06/2012 and O.A no. 300/2013, joint site inspection report of Delhi Development Authority dated 01.02.2018 and report of 2016 prepared by Civil Engineering Department, IIT, Delhi, after conducting a digital survey of the entire Yamuna River(‘O’-Zone) pursuant to the directions of


Hon’ble NGT in the above said cases holding that the hospital is on active flood plain or River Yamuna?

1. The subject hospital has been constructed on land which under the Master Plan of Delhi 2021 is stated to be for Public-Semi Public (PS-1 hospital)

2. The subject hospital has been constructed after obtaining all necessary statutory permissions.

3. The said land cannot be stated to be a flood plain on account of existence of a 3mt high Bandh, which view has been affirmed by the Hon’ble Supreme Court in the matter of Rajinder Singh (Supra).

4. The said hospital is a Charitable hospital, which is a public interest initiative and the same would cater to a large number of people seeking medical care for various ailments. Thus the subject Charitable hospital is per se being constructed in public interest.

5. Thus having regard to all the above factors, this query is answered in the affirmative, that is to say that the Sant Parmanand hospital may be permitted to run at the said location as there is no legal impediments, or any directions, stopping the said operation. ”

48. In view of the status report of the DDA dated 12.04.2019

reproduced above, Ld counsel for the appellant vehementally argued

that impugned order of revocation of sanctioned building plan issued

on the basis of letter dated 12.04.2018 needs to be set-aside because

as per stand of DDA in the status report the area where the property

situated does not fall in the flood plains of the Yamuna river. It is

further argued that map relied by the DDA prepared by I&FC

department is same map which is attached with zonal development

plan wherein property in question is not part of the flood plain. It is

therefore argued that all the appeals are required to be allowed and

impugned orders challenged in the appeals are liable to be quashed.

49. In the context of above status report of the DDA, Ld

counsel for the appellant has further argued that as per directions of


Hon’ble NGT in Manoj Mishra’s case it is the Principal Committee

which shall be responsible and under whose supervision the

directions contained in the judgment shall be complied with by the

authorities. On the basis of map and ATR submitted by the DDA and

I&FC, Principal Committee prepared a report and in its report on

Flood Plain Development Yamuna River, NCT of Delhi of October

2015 at page 20 in para 16 it is observed by the Principal Committee

as under:-

“16. There is a number of Gas Godowns in this area. Few patches have been developed as parks by DDA. There is a crematorium at Nigambodh Ghat. There is a small plot of land where Parmanand Blind Relief Hospital is under construction adjacent to the Ring Road. The area has its mythological, religious and social importance and requires a thoughtful redevelopment. ”

50. It is therefore argued that in view of the above observation of

the Principal Committee there is neither any direction nor any

recommendation by the Principal Committee in its report qua the

property of the appellant. It is further argued that property of the

appellant does not fall in the flood plain. Had it been in flood plain,

then the Principal Committee in its report of October, 2015 would

have recommended for any action in this regard. Moreover, DDA has

stated that it will go by I&FC plan submitted on 15.03.2018 in which

the property does not fall in flood plain. It is further submitted that

even on 16.04.2019 before this Tribunal, Supdt. Engineer of I&FC and

Chief Engineer East zone DDA has categorically stated that river

Yamuna and flood plain is shown in blue colour in the map and the

property is outside the blue area and as such not in flood plain but

they have not given statement in that regard. It is further argued that

DDA has also given no objection for construction in the report dated

12.04.2019. It is therefore submitted that since the property does not

fall in the flood plain and DDA has no objection for construction in


terms of the letter dated 16.04.2018 to the Corporation and show

cause notice dated 16.04.2018 to the appellant therefore deemed to

have been withdrawn by the DDA. In the end it is argued that the

basis of the initiating proceedings u/s 343 (1) was misconceived as

there is no question of sanction having become infructuous on the

basis of which demolition order dated 28.06.2018 was passed. While

passing demolition order the respondent has referred the letter dated

16.04.2018 of DDA and also thereafter in revocation of building plan

vide order dated 22.06.2018. Since the said letter already deemed to

have been withdrawn by the DDA in view of the status report dated

12.04.2019, therefore, the very basis of initiating proceedings are no

more in existence and as such demolition order dated 28.06.2018

needs to be set-aside.

51. Similarly sealing order dated 30.06.2018 on the same basis is

liable to be set-aside and revocation order dated 22.06.2018 is also

liable to be set-aside.

52. Ld counsel for the appellant further prayed that property in

question lying sealed since 30.06.2018 and the validity of plan is from

19.08.2014 to 18.08.2019. The time period spent by the appellant

from 30.06.2018 till date and as the appellant having been deprived of

the said period, as such the said intervening time period be also

granted for completing the building and the validity of the period of

plan be extended accordingly. It is therefore argued that property be

ordered to be desealed forthwith and in case respondent failed to

deseal the same within 7 days, then appellant be permitted to deseal

the property himself.

53. I have considered the submissions made at bar and carefully

examined the record. The observation of Chief Town Planner is

placed at page 7/N in file no. 74/B/HQ/NDMC/2012 stating that land

use for hospital for the land as allotted by the DIT has been


changed for District park to hospital vide notification S.O.1639

(E) dated 19.07.2012. The site therefore, qualifies for

redevelopment of hospital. After seeking report from various

departments and invalid notice i.e IN issued from time to time to the

appellant proposal of sanction plan was referred to Building Planning

Committee who in its meeting on 08.07.2014 discussed the issue

wherein it was observed that the sanction will be without prejudice

to the right of MCD on road widening issue. In regard to issue of

NOC from DDA for sanction of building plan , it is decided that

since it is a charitable hospital NOC from DDA may not be

insisted upon at this stage and some more time be given to the

applicant for obtaining the same upto B-1 stage. Applicant shall

submit the attested copy of the ‘NOC from DDA’ to Building HQ

at B1- stage failing which sanction so accorded shall become

infructuous and null and void besides other actions under the

provisions of DMC Act. An affidavit is also to be obtained from

the applicant and a note in this regard shall also be affixed on

the plans. As per file, sanction plan was issued on 19.08.2014.

54. In the meantime one Harish Kumar made a complaint dated

25.02.2016 to the Building HQ North DMC against sanction of plan of

the hospital alongwith judgment dated 13.01.2015 of the NGT

requesting the North DMC to reject the building plan of Sant

Parmanand Blind hospital immediately. On the said complaint a

meeting was held in the chamber of Additional Commissioner on

28.03.2016 and matter was discussed wherein again it was reiterated

that building plan committee of North DMC sanctioned plan for Sant

Parmanand Blind hospital on the basis of perpetual lease dated

22.03.1956 of DIT wherein the land in question was allotted for a

charitable hospital. Ministry of Urban Development , Government of

India has also changed the land use of this plot vide notification F.


No. 13011/9/2012-DDIB from District park to public semi public (PSI

hospital). It is further observed that applicant submitted copy of the

NOC from DDA dated 20.07.2015 alongwith revised building plan

application. It is further observed that during the course of meeting on

28.03.2016 in the chamber of Additional Commissioner, it was

decided to send a letter to DDA for clarification in view of the above

developments, order of NGT dated 31.01.2013 and blue prints for

river regulations zone of Ministry of Environment and Forest where it

proposes to prohibit or regulate development activities on river fronts

and flood plains in O-zone, whether the revised building plan

submitted by authorised signatory of Sant Parmanand Blind hospital

can be sanctioned or not? A clear cut No objection certificate about

the construction of hospital building of above said plot is required from

DDA. Accordingly a letter was written to the DDA for getting clear cut

NOC in respect of construction/sanction of building plan of plot Sant

Parmanand Blind hospital which falls under Zone-O and to Zonal

Building department to get stopped the construction work on above

said plot till the NOC is received from DDA. It is clear that question of

clear cut NOC arose when the application of modification plan was

under consideration. The NOC in compliance was already submitted

by the DDA vide file no. 50/B/HQ/NDMC/2015 dated 29.07.2015. The

zonal building plan department pursued the matter with DDA for clear

cut NOC and also issued work stop notice from time to time. Besides

booking of property on 11.7.2016 on the ground of the violation of the

various conditions, DDA in its reply FS/1/65/2015 OSB/ dated

16.04.2018 stated that building plan sanctioned on 19.08.16 may be

immediately revoked and application for revised building plan as such

of the hospital should not be sanctioned and DDA cannot grant NOC

for construction at demarcated flood plains. This letter of DDA is the


basis of the revocation of the sanctioned plan and action u/s 343,

345A and 338 of DMC Act.

55. In pursuance to the response sought by the Tribunal from DDA

as to what was the basis of the letter dated 16.04.2018, the response/

status report was filed on 12.4.2019 as already discussed, where it is

clearly stated that no NOC is required from the DDA and as per

opinion of Ld Additional Solicitor General of India the hospital can be

allowed to continue construction activity as area does not fall in the

flood plain and various precedents of Akshardham temple and

Common Wealth Games Village and Millennium Bus depot has been

quoted in the opinion of the Additional Solicitor General.

56. In the background of the status report of the DDA dated

12.04.2019, counsel for the appellant has vehementally argued that

impugned orders of revocation of the sanction building plan and

demolition order and sealing order needs to be set-aside because the

very basis of the initiating action is the letter dated 16.04.2018 of the

DDA which is deemed to be withdrawn in view of the status report

dated 12.04.2019.

57. As already discussed, in pursuance to the judgment of Hon’ble

NGT in Manoj Mishra’s case order dated 13.01.2015, Principal

Committee which submitted its report in October 2015 has not given

opinion regarding action to be taken with respect to the construction

raised in the appealed property. It has rather acknowledged

construction of hospital at the plot in question. In its report at page no.

20 para no. 16 the Principal Committee stated that there is a small

plot of land where Parmanand Blind Relief Hospital is under

construction adjacent to the Ring Road. The area has its

mythological, religious and social importance and requires a

thoughtful redevelopment.


58. There is force in the arguments of Ld Counsel for the appellant

that the land was allotted under Perpetual Lease by DIT predecessor

of the DDA and as per 2.6.2 of BBL 2016 and 6.2.9 of BBL 1983,

NOC is not required in case of lease as it is required when there is no

lease and under clause-d if there is deviations of the terms of the

lease. Admittedly, there is no deviation of the term of the lease in

terms of the lease in the present case. Even NOC was given by the

DDA vide NOC dated 20.07.2015. There is no condition for asking

clear cut NOC which was introduced at the time of consideration of

the revised sanctioned plan which otherwise stood withdrawn and

rejected. Though there is no requirement of the NOC yet the said

requirement was already complied and as per status report submitted

by the DDA before this Tribunal , there is no requirement of NOC in

view of the discussion in the meeting chaired by VC, DDA which

incorporated the opinion of Ld ASG. Thus from the above material it

is clear that the ground for initiated action of revocation of the

sanctioned building plan, passing of the demolition order and sealing

order does not exist and as such there is no legal sanctity for

revocation of plan proceedings, demolition order and sealing order

subject matter of the appeals under consideration. The impugned

order subject matter of the appeals are liable to be set-aside.

59. During arguments Ld counsel for the respondent very fairly

submitted that in view of the stand of DDA vide report dated

12.04.2019 respondent is ready to reconsider the continuation and

validity of the sanctioned building plan and for that reasons matter

may be remanded back to the Quasi Judicial Authority.

60. Counsel for the appellant on this submitted that in view of the

status report and the material on record, the impugned orders

challenged in the appeals are liable to be quashed before remanding

the matters for further consideration if any. Since respondent has


proceeded to revoke the sanctioned building plan on the basis of the

letter dated 16.04.2018 of the DDA and in view of the status report of

the DDA dated 12.04.2019, for the discussions made above, the said

letter is deemed to have been withdrawn. Therefore respondent is

under obligation to reconsider all the aspects regarding revocation of

the sanctioned building plan and to consider request of the appellant

for extension of the time period for construction as property remained

sealed since 30.06.2018 till date.

61. Respondent has moved an application alongwith observations

of the monitoring committee constituted by the Hon’ble Supreme

Court of India to bring into notice of the Tribunal the order of Hon’ble

Supreme Court of India dated 28.01.2019. It was prayed that Hon’ble

Tribunal may kindly take on record the present application being in

compliance of the directions issued by the Monitoring Committee. The

appellant has filed reply to the said application stating that said

application is not maintainable as the same is misuse of process of

law. It is further argued that this Tribunal is constituted by the

Government under section 347A of the DMC act for adjudicating the

appeals filed u/s 343 (2) and 347B (1) (a) to (p) of the DMC Act.

Municipal Corporation has passed the order of demolition u/s 343(1)

of the DMC Act dated 28.06.2018. Appellant has preferred on

05.07.2018 an appeal (bearing no. 435/18) u/s 343(2) r/w/s 347B of

the DMC Act and against the order of sealing u/s 345A of the DMC

Act dated 28.06.2018 for which appellant has preferred appeal

(bearing no. 435/18) u/s 347 B (1) (m) of the DMC Act and revocation

of sanction of building plan u/s 338 of the DMC Act dated 23.06.2018

challenged in appeal no.433/18 u/s 347-B (1) (h) of the DMC Act . It is

submitted that Appellate Tribunal is competent to decide the legality

and validity of the orders of demolition, sealing and revocation of

building plan appealed against. No other forum has any jurisdiction


for adjudicating the validity and legality of the order assailed in the

appeals. It is further stated that Hon’ble Supreme Court of India while

adjudicating the matter titled as M.C.Mehta Vs Union of India & Ors

has interpreted the provisions of section 345A of the DMC Act for

initiating and taking action of sealing property being used for non-

residential activities in non-confirming area. To supervise the sealing

action being taken by the concerned authority, Hon’ble Supreme

Court of India has appointed Monitoring Committee. It is stated that

Hon’ble Supreme Court of India has not conferred any jurisdiction on

the Monitoring Committee to adjudicate and decide the legality and

validity of the demolition order, sealing order and revocation order etc

against the appealed property which are provided u/s 343(2),347B(1)

(a) to (p) of the DMC act. Hon’ble Supreme Court of India vide order

dated 30.04.2013 had transferred all the appeals filed by the

aggrieved persons for desealing of their properties to this Tribunal

being treated as an appeal against the orders u/s 345-A of the DMC

Act in exercise of powers conferred u/s 347B r/w/s347C of the DMC

Act. Hon’ble Supreme Court of India vide order dated 15.12.2017 had

again revived the Monitoring Committee and has passed the orders

stating that we make it clear that hence forth it would not be

necessary for any person whose residential premises have been

sealed for misuse for any commercial (other than industrial) purposes

at the instance of the Monitoring Committee to file an appeal before

the appropriate Statutory Appellate Tribunal. It is further stated that it

is clear that powers of the Monitoring Committee is only pertaining to

the misuse of residential premises for commercial purposes and the

properties are sealed on the directions of the Monitoring Committee.

It is further stated that no action has been taken by the Monitoring

Committee in the property in question. Moreover, Monitoring

Committee has no jurisdiction over the property as the land use of the


property is hospital whereas the jurisdiction of the Monitoring

Committee is only with regard to the residential property being used

for commercial purposes. There is no misuse of the property as the

land use is hospital and the building is to be used for hospital only. It

is further stated that a bare perusal of the application, it is clear that

some complaint has been filed by Sh. Mohinder Kumar Goel having

no concern whatsoever with the property. On the said complaint the

report was submitted by the corporation intimating the Monitoring

Committee about the action initiated by the Corporation and availing

of the remedy before the Tribunal by the appellant. On that status

report, the Monitoring Committee has only passed the following

order: “Attention of the Appellate Tribunal may be invited to the

orders dated 28.01.2009 of the Hon’ble Supreme Court of India

and pursue the matter for further necessary action as per law”. It

is stated that bare perusal of the complaint and the report of the

Junior Engineer clearly shows that no action has been taken by the

Monitoring Committee pertaining to the property in question. The

appeals challenging the orders of the Corporation are already pending

before the Tribunal for adjudication. Merely calling for the report by

the Monitoring Committee does not mean that the matter pertains to

the Monitoring Committee and as such this Tribunal has no

jurisdiction to adjudicate the matter. It is further argued that

jurisdiction of the Tribunal to adjudicate the legality and validity of the

orders cannot be taken away merely on the basis of the orders of the

Monitoring Committee dated 21.02.2019 especially when the appeals

are pending for adjudication since 04.07.2018. It is therefore prayed

that application is liable to be dismissed with compensatory costs.

62. In compliance of the directions vide order dated 16.4.2019

Commissioner North DMC was directed to file status report clarifying

whether the present appeals in his opinion are the matters relating to


the Monitoring Committee, so as to attract the order dated

28.01.2019. Status report has been filed approved by the

Commissioner and signed by the Dy. Commissioner City-S.P zone

wherein all the facts and circumstances has been discussed with

regard to the booking of the property in pursuance to the cancellation

of the sanctioned plan of the appealed property. Status report is

reproduction of the earlier status report filed in the matter already

discussed. It is simply clarified that application dated 16.04.2019 was

filed before this Tribunal so as to apprise the Tribunal about the facts

and circumstances of the present matter. It is further stated that this

Tribunal may pass any order as deems fit and necessary, in view of

the order dated 28.01.2019 so passed by the Apex Court read with

directions of the Monitoring Committee. It is thus clear from the said

status report that the worthy Commissioner has refrained from

assisting this Tribunal regarding the clarification sought.

63. Ld counsel for the appellant on the other hand argued that

present appeals have been filed against the order dated 23.06.2018

revocation of sanctioned building plan (in appeal no. 433/18), sealing

order dated 28.06.2018 (in appeal no. 435/18) and demolition order

dated 28.06.2018 (in appeal no. 436/18). All these orders has been

passed by the respondent and not at the instance/direction of the

Monitoring Committee. Application of the respondent has been filed

in pursuance to the observation of the Monitoring Committee wherein

Hon’ble Monitoring Committee received a complaint on 14.11.2018

from one Mohinder Kumar Goel. Hon’ble Monitoring Committee

directed Dy. Commissioner S.P.Zone to submit status report after

inspection by 28.10.2018. Status report was filed on 25.01.2019 and

on 21.02.2019, Hon’ble Monitoring Committee observed that

attention of the Tribunal may be invited to the order dated 28.01.2019

by the Hon’ble Supreme Court of India and pursue the matter for


further necessary action as per law. Ld counsel for the appellant

therefore argued that since the complaint on the basis of which

observations of the Monitoring Committee were made was received

by the Monitoring Committee after issuing of the impugned orders

challenged in the present appeals and as such present matter is not

the matter pertaining to the Monitoring Committee.

64. I have considered the submissions and the status report of the

respondent. Though I find force in the arguments of the Ld counsel for

the appellant to the effect that subject matter of the appeals before

this Tribunal are not the matter pertaining to the Monitoring

Committee, yet in deference to the concern of the Hon’ble Monitoring

Committee on the complaint of one Mohinder Kumar Goel,

respondent will obtain permission from the Hon’ble Monitoring

Committee before desealing of the property in question. Appellant

shall also approach the Monitoring Committee for getting the

property desealed in case respondent fails to deseal the same in

compliance of order of this Tribunal. The application of the respondent

is disposed off accordingly in above terms.

65. Vide order dated 16.04.2019, DDA was directed to clarify

whether the letter dated 16.04.2018 on the basis of which action was

taken against the appealed property by the respondent is deemed to

be withdrawn or not? Status report filed on 24.04.2019 by Dy.

Director (OSB) DDA stating that DDA has already submitted the

status report alongwith opinion of the Ld ASG stating that show cause

notice dated 16.04.2018 and letter dated 16.04.2018 were written to

the North DMC in compliance to letter of SE (HQ) North DMC on

09.09.2016 and remainder dated 16.02.2018. With regard to the

withdrawal of the show cause notice dated 16.04.2018 it is stated that

it can be withdrawn after proper processing on file. In view of this

status report as well as status report filed by the DDA on 12.04.2019,


the necessary conclusion which can be drawn is that the letter dated

16.04.2018 shall be deemed to have been withdrawn.

66. On 24.04.2019 Chief Engineer (DDA) (East) zone has filed

status report submitted to the Principal Committee constituted as per

directions of Manoj Mishra’s case alongwith map and has identified

the site of Sant Parmanand hospital stating that same was beyond the

flood plan area of river Yamuna and has identified it by marking the

same in red colour with pencil. In view of this factual position, I am of

the considered opinion that action was initiated against the appealed

property on the basis of the letter dated 16.04.18 of the DDA. As

already discussed, in view of the status report of the DDA dated

12.04.2019, the said letter is considered to be deemed to have been

withdrawn. The revocation order dated 23.06.2018 of sanctioned

building plan subject matter of appeal no. 433/18, demolition order

dated 28.06.2018 subject matter of appeal no. 436/18 and the sealing

order dated 28.06.2018 subject matter of appeal no. 435/18 on that

ground are liable to be quashed as same are not legally sustainable in

the eyes of law and matter however needs to be remanded back for

reconsideration by Quasi Judicial Authority.

67. During proceedings of this matter, Ld counsel for the

respondent placed the order in writ petition civil no. 5343/18 titled as

N.K. Gupta Vs DDA & Ors with respect to the appealed property,

stated to be pending before the Hon’ble High Court of Delhi. Vide

order dated 18.05.2018, Hon’ble High Court of Delhi directed the

respondent to ensure that there is no violation of the statutory

provision, judicial pronouncement or government policy with regard to

the area in question. The said writ petition is now listed for 06.08.2019

for filing affidavit and counter affidavit of the respondent.

68. From the above discussions and material on record, the factual

position which emerges is summarized as under:-


i. Though there is no requirement of NOC from

DDA/Lessor of the property in question in view of the

Byelaws 6.2.9 of the Building Byelaws, 1983 and

corresponding 2.6.2 of the Unified Building byelaws 2016,

yet the sanctioned building plan was issued conditionally

for procuring the NOC from the DDA and an undertaking

was given by the appellant in that regard, therefore, in view

of the status report of the DDA dated 12.04.2019, it is the

DDA who shall clarify to the Quasi Judicial

Authority/Building Plan Committee about the requirement

of the NOC/clear cut NOC for validity for sanction plan of

the property in question.

ii. In view of the status report of the DDA dated 12.04.2019

and opinion of Ld ASG dated 14.01.2019 reproduced

above, the ratio of Hon’ble NGT’s judgment in Manoj

Mishra’s case is not applicable in the present matter.

iii. There are various reports and maps of the competent

authority as relied by the DDA in its report dated

12.04.2019 to the effect that the property in question is not

situated in demarcated flood plain of river The Yamuna.

iv. Letter dated 16.04.2018 of the DDA on the basis of

which impugned orders were passed, has no legal basis

and is contrary to the zonal development plan of the DDA

and map appended to it wherein property in question has

been shown beyond demarcated flood plan of river The

Yamuna and accordingly in view of the status report of the

DDA dated 12.04.2019, the said letter is deemed to have

been withdrawn.

v. In view of the report of the DDA dated 12.04.2019 and

opinion of the Ld ASG dated 14.01.2019, revocation of the


sanctioned plan dated 19.08.2014, was arbitrary having

no legal basis and impugned order suffers from non-

application of mind by the Quasi Judicial authority i.e

Building Plan Committee of North DMC.

vi. Sanctioned building plan dated 19.08.2014 was issued

by the Competent authority after due consideration of all

legal aspects and legislative provisions/ building byelaws

and provisions of MPD-2021.

vii. Principal Committee constituted for ensuring compliance

of Manoj Mishra’s case of Hon’ble NGT in its report of

October-2015 has not passed any directions in respect of

the property in question and rather observed that there is a

small plot of land where Parmanand Blind Relief Hospital

is under construction adjacent to the Ring Road.

viii. Hon’ble High court of Delhi in writ petition civil no.

5343/18 vide order dated 18.05.2018 has directed the

respondent and the DDA to ensure that there is no

violation in the statutory provision, judicial pronouncement

or government policy with regard to the area in question.

69. In view of the observation of the Hon. High Court of Delhi in

order dated 18.05.2018 and for the points summarized above, I am of

the considered opinion that Quasi Judicial Authority/ Building plan

committee is required to consider all these aspects for deciding the

validity of the sanction building plan dated 19.08.2014 and for that

reasons matter needs to be remanded back to it. In view of the

emerged circumstances discussed above, Quasi Judicial

authority/Building plan Committee while considering the validity of the

sanctioned building plan will keep in mind all the aspects and the


points summarized above as well as order dated 18.05.2018 in writ

petition civil no. 5343/18 of the Hon’ble High Court of Delhi.

70. The Quasi Judicial Authority/Building Plan Committee will

consider the material points summarized above and will be assisted

during hearing by the competent officers of the DDA to clarify the

requirement of the NOC/clear cut NOC for the validity of the

sanctioned building plan of the property in question especially in view

of the emerged situation after the status report of DDA dated

12.04.2019 and opinion of Ld ASG on the matter.

71. Since the impugned order of revocation of sanction plan and

subsequent demolition order and sealing order has been issued by

the Quasi Judicial authority in an arbitrary manner and in the absence

of appropriate material having not been made available by it, and the

reasons discussed above, impugned revocation of sanctioned

building plan and subsequent order of demolition and sealing order

are not legally sustainable in the eyes of law. The impugned

revocation order dated 23.06.2018 challenged in appeal no. 433/18,

demolition order dated 28.06.2018 challenged in appeal no. 436/18

and the sealing order dated 28.06.2018 challenged in appeal no.

435/18 are accordingly quashed. The property in question is ordered

to be desealed immediately, however, with the permission of

Monitoring Committee appointed by Hon’ble Supreme Court of India.

72. Matter is remanded back to the Quasi Judicial authority

/Building Plan Committee to decide afresh regarding the validity of the

sanctioned building plan dated 19.08.2014 by passing a reasoned

order within a period of one month of this order. Appellant is given

opportunity to file further documents/ reply if any and no fresh notice

will be given to the appellant in that regard and the order of this

Tribunal shall be considered to be notice for the purpose of hearing by

the Quasi Judicial Authority in the matter.


73. Appellant shall not raise any further construction in the

property in question till the passing of the order by the Quasi Judicial

Authority or for a period of one month whichever is earlier. The

unauthorised construction in the form of addition and alteration if any

which is beyond the sanctioned building plan is liable to be

demolished/rectified/compounded, as the case may be, and appellant

shall take necessary steps in that regard within a reasonable period.

In case respondent does not decide the matter afresh within a period

of one month , the appellant will be at liberty to deseal the property

with the permission of Hon’ble Monitoring Committee and shall be

entitled to take further steps as permissible under the sanction

building plan dated 19.08.2014. The decision of the Quasi Judicial

Authority/Building Plan Committee shall be communicated to the

Monitoring Committee appointed by Hon’ble Supreme Court of India.

74. All the appeals i.e appeal no. 433/18, 436/18 and 435/18 are

disposed of accordingly in above terms.

75. Original order be placed in appeal no. 433/18 and attested

copy of the same be placed in appeal no. 435/18 & 436/18.

76. The file of the department, if any, be returned to the

respondent alongwith copy of this order.

77. Copy of the order be given Dasti to both the parties, as

prayed.

78. Appeal file be consigned to Record Room.

(RAJ KUMAR CHAUHAN)

Addl. Distt. & Session Judge-cum-PO Delhi Municipal Appellate Tribunal

Tis Hazari Courts Delhi 26.04.2019

in the court of shri raj kumar chauhan, ad&sj-cum...

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