Judgment:
$~3 * IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) 8133/2013 J.P.S. OBEROI Through: versus ..... Petitioner Mr. Sanjoy Ghosh, Advocate NORTH DELHI MUNICIPAL CORPORATION & ANR ..... Respondents Through: Mr. Kapil Dutta, Advocate for North DMC. CORAM: HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA SUDERSHAN KUMAR MISRA, J.
(ORAL) CM APPL. No.17176/2013 Exemption, as prayed for, is allowed, subject to all just exceptions. The application stands disposed off. W.P.(C) 8133/2013 & CM APPL. No.17175/2013 1. This is the second round of litigation initiated by the petitioner before this Court. His earlier writ petition being W.P.(C) No.3005/2013 was disposed off by this Court on 18.07.2013.
2. The fundamental issue that is canvassed before this Court is the alleged reluctance of the Appellate Authority to take the assistance and advice of a Structural Engineer in assessing the quality of the whole structure, inter alia, from the point of view of structural stability and public safety. In this context, it is submitted that a request in this regard was made by the petitioner also before the Tribunal on 17.10.2013, which remains unattended.
3. In substance, counsel for the petitioner submits that without assessing the structural stability and safety of the structure in question, the Tribunal in effect would be missing the point.
4. Counsel further submits that a piquant situation has arisen in this case because, after the Sanctioned Plan with regard to the premises in question stood revoked; the owner moved the Tribunal against that revocation, and the Tribunal, by an interim order, has permitted the construction of the structure to proceed in accordance with that revoked plan.
5. He further submits that since the petitioner has a direct interest in the construction in question; and has serious reservations about the stability of the structure, and the consequent threat to the public safety, he has approached the Tribunal for being impleaded as a party in the aforesaid appeal. He submits that the law recognises the right of an interested party to be present and to assist the Tribunal. It is in this capacity that the petitioner has moved an application praying that a report of a duly qualified Structural Engineer be obtained before any permissions are granted, interim or otherwise.
6. In this context, interim orders passed by this Court on, 08.05.2013 in the aforesaid W.P.(C) No.3005/2013, which was also moved by the petitioner; have also been brought to the notice of this Court. They state as follows:
“2. .... Counsel further submits that if the respondent No.3 and 4 are permitted to carry out further construction the flat of the petitioner which shares the common support is likely to be extensively damaged. Counsel for the petitioner has drawn the attention of the Court to the photographs, which have been placed at pages 38 to 59 of the paper book, to show the bridge in question and also in support of his plea that the bridge is suspended at a height of 22 ft. from the ground and connects the building blocks of 4 storeys on either side of the interior public road. Photographs also show cracks in the pillar and beams. Counsel for the petitioner has also relied upon the report of a Structural Engineer, who has opined that the bridge area is in a delicate condition and the proposed building by respondents No.3 and 4 poses a threat to the stability and safety of the building. xx xx xx 5. Heard counsel for the parties. Having regard to the submission made, the photographs placed on record, the report of the Structural Engineer and taking into consideration that the construction by respondents No.3 and 4 can lead to risk to the life and property, respondents No.3 and 4 are restrained from carrying out any construction over the duplex Flat bearing No.57, Mall Apartments, Mall Road, Delhi. MCD and the SHO of the area are directed to enforce this order in accordance with law.”
Ultimately, that writ petition was disposed off by this Court on 18.07.2013, after noting the apprehension expressed by petitioner’s counsel that the staff of the MCD appears to have rushed through the approval of the plan in question; in what appeared to be unholy haste, with hardly three working days, and there is obviously no application of mind to the structural safety of the building in question.
7. In that matter, counsel for the Corporation had informed the Court that after following due process, the plan in question had been revoked on 10.06.2013, and orders for demolition were also issued. On statement of counsel for the MCD, that the MCD shall pursue the matter in accordance with law, and obviously, in case any further orders are issued with regard to the structure in question, the same shall also be followed, the writ petition came to be disposed off.
8. It appears that thereafter, the aforesaid revocation of the sanctioned plan on 10.06.2013 by the Corporation has become the subject matter of the said appeal bearing A No.385/2013. There, on 23.07.2013, ex-parte stay was refused by the Tribunal since it had concluded, prima facie, that the constructions have, admittedly, been raised beyond the sanctioned plan. Thereafter on 01.08.2013, the matter was taken up by the Tribunal which noted that, “The revocation order of the Sanctioned Building Plan has been passed mainly on the ground that no NOC has been obtained from the other owners of the floors situated in vertical stack and the existing plan of the DDA does not match with the original allotment plan of the DDA”. It thereafter expressed the view that, “The question of obtaining of NOC, as well as, alleged fraud and misrepresentation while obtaining the sanctioned plan is required to be looked into, later on, when the record of the respondent is received”.
9. Thereafter, surprisingly, in the very next paragraph, the Appellate Tribunal has proceeded to record the submission of counsel for the appellant that no construction has been raised in violation of the sanctioned building plan of 01.02.2013, and also an agreement of the counsel for the appellant himself that, “if there are any such changes or construction in the property beyond the Sanctioned Building Plan dated 01.02.2013 then the appellant will rectify/demolish/restore the same”. This undertaking of counsel for the appellant appears to have been accepted by the Tribunal without even applying its mind to the fact that, as on the date when the matter was being heard by it, in fact, there is no sanctioned plan in existence because it stands revoked.
10. Thereafter, the Tribunal has proceeded to direct a joint inspection to be carried out by the AE(B), in the presence of the owner and her architect. And the Assistant Engineer (B) has been directed to bring into operation the revoked Sanctioned Building Plan of 01.02.2013 to work out the details of the portions which are beyond the scope of that plan; and once that is done, the owner/appellant is given the opportunity to reconstruct her property in accordance with what is pointed out by that Assistant Engineer (B). In ordering this entire exercise, learned Tribunal appears to have lost sight of the fundamental plea upon which Civil Writ Petition No.3005/2013 was heard and considered by this Court, which was the allegation of collusion between the officials of the MCD and the owner of the property in question.
11. It is contended at the bar that under the circumstances, the aforesaid interim order of the Tribunal; and that too without passing any orders on the pending application of the petitioner that any additions, alterations or further constructions at the site be permitted only after obtaining the report of a Structural Engineer, and due consideration having been given to the same in a reasoned order by the MCD authorities, merely gives a stamp of approval for such collusion. Further, it is not beyond the realm of possibility for the owner to cover up and hide evident signs of instability and stress on the old structure once his workers have free access to it.
12. It is submitted that looking to the overall circumstances; the Tribunal ought not to have ignored the request of the petitioner while considering the issue of interim orders.
13. Further, to my mind also, for the Tribunal to permit, as an interim measure, construction on the basis of a plan, whose sanction stood revoked on 10.06.2013; and that too in a matter where, inter alia, the Tribunal itself has noted that allegations of fraud and misrepresentation in obtaining the sanction for even that plan are required to be looked into; in the absence of any compelling, extraordinary reasons, is a perversity. Once the sanctioned plan is revoked, the position has to be as if there is no valid plan which can form the basis for any further construction. It is akin to a case where, after an application for sanction of plan is refused, the Appellate Tribunal nevertheless permits construction to proceed according to that plan, by way of an interim order, even before deciding the challenge to that rejection. Even photographs annexed with the petition from pages 38-40 clearly demonstrate the construction beyond what was originally there. Prima facie, all these, and other significant issues raised by the petitioner are not without substance.
14. Counsel for the petitioner ultimately states, on instructions, that the petitioner’s only desire is that a duly qualified Structural Safety Engineer be appointed to go into all relevant aspects relating to structural stability and safety of the structure in question, and his report be accorded due consideration in a speaking order. He further submits that for this purpose, the petitioner is willing to bear the expenses of any such report. He submits that he would, therefore, be satisfied if the Tribunal were to take up his application, and dispose off the same on 20.02.2014, when the matter is listed once again.
15. Counsel for the Corporation, who appears on advance notice, submits on instructions that without prejudice to any preliminary objection that the Corporation may have with regard to the availability of an appellate forum before the District Judge in terms of the judgement of Amrik Singh Lyallpuri v. Union of India & Others, (2011) 6 SCC535 the Corporation would have no objection to the disposal of the petitioner’s application on merits for the appointment of the Structural Engineer and the due consideration thereof, by the Corporation in a speaking order, before any further steps are taken in the matter. The position taken by the Corporation before this Court is very fair.
16. Counsel for the petitioner states that under the circumstances, he does not wish to press this petition any further. He reiterates that the petitioner is, in fact, ready to bear the expenses of such an appointment.
17. It is ordered accordingly.
18. The petition, along with the accompanying application, is, therefore, disposed off in the above terms. The Tribunal shall, in the first instance, hear and decide the aforesaid application before proceeding further.
19. A copy of this order be communicated to the Appellate Tribunal. SUDERSHAN KUMAR MISRA (Judge) JANUARY31 2014 rd