Judgment:
Markandeya Katju, C.J.
1. This writ appeal has been filed against the impugned judgment of the learned Single Judge dated 26th October 2004 by which the writ petition was allowed.
2. Heard learned counsel for the parties and perused the record.
3. The writ petition was filed challenging the order dated 22.10.2003 passed by the Lt.Governor of Delhi by which he reversed the order dated 2.7.2003 passed by the Appellate Tribunal,MCD by which the Tribunal upheld the order dated 11.1.1994 passed by the Additional Commissioner, MCD revoking the sanction obtained for further construction in property C-100, Anand Niketan, New Delhi.
4. The facts of the case are that the writ petitioner, Shri O.P. Malik and his brother late Shri K.L. Malik, the father of respondents 2 & 3 in the writ petition, were jointly allotted property bearing No. C-100, Anand Niketan, New Delhi by a Perpetual Sublease deed dated 11.9.1968 through Anand Niketan Coop. Housing Society Ltd. The said plot measures 423.20 square yards.
5. The writ petitioner has alleged that being a government employee he was working in Chandigarh since 1960 and consequently he remained outside Delhi throughout.
6. It is alleged in para 4 of the writ petition that the writ petitioner executed a power of attorney dated 13.2.1974 in favor of his late brother, Shri K.L. Malik authorising him to apply to the municipal authority for the sanction of the building plans and to raise construction on his part of the property. On the basis of the said power of attorney Shri K.L. Malik got the building plan sanctioned from the MCD in 1974 and raised his part of construction in the property. Thereafter he again got the building plan sanctioned for making additions to the property in 1984. The building plans are only sanctioned on the joint request of the co-owners. A single co-owner cannot get any sanction of plan and thus deprive the other co-owner of his right in a property. It is for this reason that the power of attorney was given to Shri K.L. Malik.
7. It is alleged in para 5 of the writ petition that since the plot was jointly owned it was agreed between the petitioner and his late brother that they would be owners of 50% share in the property and would construct only in their portions and the constructions raised by each of them would not exceed 50% of the total permissible covered area and the total floor area ratio permitted in the property. The total permissible covered area as per the sanctioned plan was 1904.75 sq. ft and, thereforee, it was agreed that Shri K.L. Malik would not construct on more than 50% of the said area i.e. 952.375 sq. ft on the ground floor as per the plan approved in 1974. It is alleged that Shri K.L. Malik adhered to the said assurance till 1984 but subsequently he sought to misuse the power of attorney by obtaining sanction and raising construction far in excess of 50% of the area to which he was entitled.
8. In para 6 of the writ petition it is alleged that the petitioner on coming to know of the said mal intention of Shri K.L. Malik cancelled the power of attorney which he had given to him by sending a registered letter dated 1.10.1985. It is alleged that a copy of the said letter was also delivered to the MCD.
9. In para 8 of the writ petition it is alleged that Shri K.L. Malik despite having the knowledge of the fact that the power of attorney issued in his favor had been cancelled, submitted an application for sanction of the building plan by wrongly showing himself as the sole owner of the property. Thereafter, when the petitioner came to know of the said illegality and complained to the MCD, late Shri K.L. Malik with the connivance of the lower staff of the MCD made interpolation in the records of the MCD and attempted to show as if he was acting as the attorney of the petitioner. Along with the said application late Shri K.L. Malik submitted an indemnity bond, affidavit etc on which the signatures of the petitioner had been forged by him. It is alleged that on the basis of the said forgery and fabrications Shri K.L. Malik was able to fraudulently obtain a sanction of the building plan to raise additional construction in the property and the said sanction was granted vide letter dated 12.1.1993.
10. It is alleged in para 9 of the writ petition that the petitioner on coming to know of the aforesaid illegal acts committed by Shri K.L. Malik filed a suit for partition of the property and to restrain Shri K.L. Malik from interfering in the petitioner's possession and enjoyment of the property. The said suit was decreed with the consent of the parties and the property was partitioned between the petitioner and Shri K.L. Malik by metes and bounds.
11. It is alleged in para 10 of the writ petition that since the sanction for construction of the property had been obtained by late Shri K.L. Malik by fabricating records, forging documents and signatures, the petitioner filed an application to the MCD for revocation of the sanctioned plans dated 12.1.1993. Under Section 338 of the Delhi Municipal Corporation Act power is vested in the Commissioner to revoke any sanction obtained by fraud or cheating.
12. The MCD held a detailed inquiry into the matter and the Additional Commissioner of MCD after being satisfied about the illegal acts of Shri K.L. Malik vide his order dated 11.1.1994 revoked the sanction accorded to the building plan. Respondents 2 & 3 in the writ petition filed an appeal which was dismissed by the Appellate Tribunal on 2.7.2003. On further appeal the Lt. Governor of Delhi vide impugned order dated 22.10.2003 set aside the order of the Tribunal. Hence, the writ petition was filed.
13. A counter affidavit in the writ petition was filed by the MCD and we have perused the same. In para 7 of the same it is stated that the petitioner at no point of time intimated to the MCD that he had revoked the power of attorney till the department received his letter dated 18.3.1993 wherein the MCD was informed that the documents had been tampered with by Shri K.L. Malik.
14. It is stated in para 9 of the counter affidavit that the dispute relates to two brothers and the MCD is in no position to either verify or deny the allegations of the petitioner that the documents have been tampered with by Shri K.L. Malik. In view of the complaint by the petitioner that he had revoked the power of attorney, the MCD issued notice to Shri K.L. Malik for clarifying and answering the allegations as made by his brother (writ petitioner). After due process of hearing given to Shri K.L. Malik the competent authority gave a speaking order dated 11.1.1994 whereby the third building plan was revoked.
15. A counter affidavit was also filed by respondent Nos. 2 & 3 and we have perused the same. It is alleged in para 2 of the same that the findings of the Additional Commissioner that the documents were forged and that power of attorney was revoked are without any basis or evidence. It is alleged that Shri K.L. Malik had never received any communication/notice by the petitioner revoking his power of attorney. It is further alleged that the original letter dated 1.10.1985 whereby the petitioner allegedly revoked the power of attorney was not on the record of respondent No. 1. It is alleged that the said letter was not available when the order dated 11.1.1994 was passed. It is alleged that the said letter does not bear any stamp or signature of the concerned officer or the department of MCD acknowledging receipt of the same. It is alleged that Shri K.L. Malik did not receive any notice revoking the power of attorney. It is submitted that the learned Additional Commissioner is not competent to adjudicate upon the issues regarding revocation of the power of attorney and forgery of signatures.
16. It is alleged that the petitioner filed a suit bearing Suit No. 722 of 1993 in the High Court of Delhi against Shri K.L. Malik for declaration, partition and permanent injunction and ultimately the same was withdrawn by the petitioner after the statement of the parties was recorded on 22.4.1998. It is stated that disputes regarding fabrication of record and forgery of signatures cannot be decided in the proceedings under Section 338.
17. A rejoinder to the counter affidavit has also been filed and we have perused the same.
18. We are of the opinion that Section 338 of the Delhi Municipal Corporation Act can certainly be invoked, if there has been fraud in obtaining sanction for the building plan. This is in view of the plain language of Section 338. There was a dispute between the parties whether there was a valid cancellation of the power of attorney and whether there was any forgery. The determination of this dispute is certainly connected with the question whether there was misrepresentation or fraud.
19. Section 338 of the Delhi Municipal Corporation Act states:-
If at any time after the sanction of any building or work has been accorded, the Commissioner is satisfied that such sanction was accorded in consequence of any material misrepresentation or fraudulent statement contained in the notice given or information furnished under sections 333, 334 and 335 he may by order in writing cancel for reasons to be recorded such sanction and any building or work commenced, erected or done shall be deemed to have been commenced, erected or done without such sanction.
20. It may be noted that both the Additional Commissioner of MCD exercising the powers of the Commissioner under Section 338, as well as the Appellate Tribunal were satisfied that there was fraud and misrepresentation.
21. We have carefully perused both the order of the Additional Commissioner dated 11.1.1994 as well as the order of the Appellate Tribunal dated 2.7.2003. The Additional Commissioner's order is very cryptic and does not at all decide the dispute whether there was revocation of the power of attorney or whether there was forgery in the documents. However, the Appellate Tribunal has gone into the matter in some detail. He has noted in para 8 of his order dated Shri O.P. Malik, the petitioner, had written to the Executive Engineer, MCD revoking the power of attorney and this letter was received on 1.10.1985 vide Diary No. 4732/B. From this he has inferred that Shri O.P. Malik had cancelled the power of attorney executed by him in favor of Shri K.L. Malik and this fact was indicated in writing to the appellant and the MCD. In para 9 of his order the Tribunal has observed that once the power of attorney had been revoked and the same is duly notified to the appellant, then the appellant has no right to move the application for sanction of the building plan for and on behalf of Shri O.P. Malik as his attorney, and such act amounts to misrepresentation and fraud. The Tribunal has further noted that the appellant filed an affidavit and indemnity bond alleged to be signed by Shri O.P. Malik, but Shri O.P. Malik had specifically denied execution of these documents. He denied his signatures on these documents, while the appellant reiterated that the signatures were of Shri O.P. Malik.
22. The Lt. Governor by the order dated 22.10.2003 disagreed with the view taken by the MCD and the Appellate Tribunal. In his order the Lt. Governor has observed:-
The crucial question here is the basis of the Commissioner's 'satisfaction' . Admittedly, the Additional Commissioner, exercising the power of the Commissioner under Section 338, had before him the complaints filed by respondent No. 2. However, veracity of the twin allegations of revocation of power of attorney and of forgery of documents purportedly signed by respondent No. 2, remained to be ascertained to a reasonable degree. In the absence of a reliable finding as to the facts, I do not find reasonable and sufficient ground to hold that sanction of the building plan by M.C.D in 1993 was obtained through misrepresentation, especially when sanctions obtained on two occasions in the past were never disputed.
I further find that the original letter dated 01.10.1985 concerning revocation of power of attorney, stated to have been sent by respondent No. 2 to MCD, is not on record. Evidently, the same was also not in the cognizance of MCD during consideration of the building plan submitted in 1992. There being nothing contrary on record, the building plan was processed and sanctioned considering the power of attorney and the signatures on documents as authentic, as on the earlier two occasions. Admittedly, the power of attorney given by respondent No. 2 to his late brother K.L. Malik was by virtue of an unregistered document and the same was revocable by a simple notice or intimation from the former to the latter. However, the fact of revocation, as claimed by respondent No. 2, is vehemently disputed by the appellants. The issue remains to be determined. In the absence of credible evidence, there is no adequate basis to hold that there was misrepresentation of facts.
It is not the case of the respondents that the construction raised by the appellants violates the sanctioned plan or the building bye-laws. The building does not contravene any building regulation, nor does it impinge adversely on any municipal condition. Being a jointly held property, the plot has to be regarded as a single, physically indivisible unit for the purpose of building activity. Now that a structure has come up on it in conformity with the municipal laws, I do not see the rationale or justification in declaring it as unauthorised on the basis of complaints of the co-owner, which have remained unsubstantiated. The genesis of the present controversy between the two co-owners is in that dispute. The resolution thereof is not feasible through the mechanism of municipal regulation of building activity. It will not be proper that the municipal instruments be invoked for intervention in cases which are essentially in the nature of civil disputes in property. This is not the forum for such disputes, which must be adjudicated in the appropriate civil court.
23. In our view, the Lt. Governor did not decide the controversy properly. It appears from his order that he was of the view that there was no reliable finding on the factual dispute as to whether there was a revocation of the power of attorney and the forgery of documents. With respect to the Lt. Governor, he overlooked the legal position that he was also a fact finding authority and he should have gone into these disputes of facts, or have remanded the matter to the Tribunal or the MCD for a clear cut finding on these issues.
24. The learned Lt Governor has further gone on to observe that the original letter dated 1.10.1985 was not in the cognizance of the MCD during consideration of the building plan submitted in 1992. He further observed that there was a vehement dispute about the factum of revocation of power of attorney. In our opinion, if there was a vehement dispute, which in fact there was, the Lt Governor should have gone into the controversy and and should not have just said that since there was a controversy the complaint has to be rejected.
25. In the impugned judgment of the learned Single Judge it has been observed in para 14 that the Lt. Governor had recorded a finding that the letter dated 1.10.1985 revoking the power of attorney was not on record. However, he has noted that the Appellate Tribunal which saw the letter even recorded the diary number under which it was received. In our opinion, the learned Single Judge rightly observed that the Lt. Governor ought to have investigated the matter a little deeper.
26. We agree with the learned Single Judge that the impugned order of the learned Lt. Governor deserves to be quashed, but having quashed the same, the learned Single Judge was not right, in our opinion, to have restored the order of the Additional Commissioner as well as the order of the Appellate Tribunal. Instead he should have remanded the matter to the Lt. Governor or the subordinate authorities for a detailed investigation into the factual controversies as to whether in fact the power of attorney had been revoked and there were forgeries. This factual controversy goes to the root of the matter. Hence, while we uphold the judgment of the learned Single Judge in so far as he has quashed the order dated 22.10.2003, we set aside that part of the impugned judgment of the learned Single Judge whereby he has restored the order of the Appellate Tribunal and the Additional Commissioner.
27. We remand the matter to the Lt. Governor to decide the factual controversy whether there was in fact revocation of the power of attorney and whether there were forgeries. The Lt. Governor may either himself decide the controversy or he may remand the matter to the Appellate Tribunal or the MCD for a detailed investigation into the factual controversy.
28. With the aforesaid observations, the appeal is disposed of.