IN THE COURT OF SH.

PITAMBER DUTT :
ADDL. DISTRICT & SESSIONS JUDGE-CUM-PRESIDING OFFICER,
APPELLATE TRIBUNAL, M.C.D., DELHI.

APPEAL NO. 388/ATMCD/2018

Sh. Ashok Kumar Bhatia (since deceased)

Through his LRs

i) Smt. Shobha Bhatia

W/o Late Sh. Ashok Kumar Bhatia

ii) Sh. Vaibhav Bhatia

S/o Late Sh. Ashok Kumar Bhatia

iii) Sh. Vibhor Bhatia

S/o Late Sh. Ashok Kumar Bhatia
All R/o C-2B / 115-C,
Janak Puri, New Delhi – 110058 ……….. Appellants

Vs

Delhi Municipal Corporation

(Through its Commissioner)
Civic Centre, J.L.N. Marg,
New Delhi. ...……. Respondent

Date of Filing of Appeal : 06.06.2018

Date of Order : 22.01.2024

ORDER

1. Vide this order, I shall decide the appeal filed against impugned

demolition order dated 26.04.2018, passed with respect to Flat bearing

no. C-2B/115C, Janak Puri, New Delhi.

A. No. 388/18 Ashok Kumar Bhatia Vs SDMC Page No. 1 of 8

2. Sh. S.D. Dixit, Ld. counsel for the appellant has contended that

the appellant was never served with the demolition order at any point of

time and he came to know about the same only during the pendency of

this appeal, which was initially filed against the vacation notice and

thereafter application for amendment was filed, which was allowed. He

further contended that appellant was served with the show cause notice,

which was duly replied by the appellant, claiming that the structure has

been in existence much prior to 07.02.2007, despite the same, the Quasi

Judicial Authority has not considered the said reply and passed the

demolition order. He prayed that appeal may be allowed and impugned

demolition order may be set aside.

3. Sh. Ashutosh Gupta, Ld. proxy counsel for Sh. Madan Sagar,

Ld. counsel for the respondent has contended that the flat in question was

booked for unauthorized construction and show cause notice dated

11.04.2018 was issued, which was duly received by the appellant and

after that Quasi Judicial Authority passed the demolition order. He prayed

that appeal may be dismissed.

4. I have heard Ld counsel for the appellant, Ld counsel for the

respondent and perused the appeal, impugned order and record. Perusal of

the above shows that flat bearing no. C-2B/115C, Janak Puri, New Delhi

A. No. 388/18 Ashok Kumar Bhatia Vs SDMC Page No. 2 of 8

 was booked for unauthorized construction in the shape of two rooms, one

toilet, two small stores at the terrace and show cause notice dated

11.04.2018 was issued upon the appellant, pursuant to which, appellant

filed a detailed reply.

5. After receiving the said reply, the Quasi Judicial Authority

passed the impugned demolition order dated 26.04.2018, holding that the

reply filed by the appellant was found not satisfactory.

6. This appeal was initially filed by the appellant against the

vacation notice dated 30.05.2018 on the ground that the appellant was

never served with the demolition order and came to know about the same

only on 16.09.2020. The appellant thereafter obtained the certified copy

of the demolition order from the record of this file and filed application

for amendment, thereby sought permission to challenge the demolition

order dated 26.04.2018, which was allowed vide order dated

20.09.2021.

7. A perusal of the record shows that the demolition order dated

26.04.2018 was passed in the name of owner / builder, despite receiving

the reply filed by Sh. Ashok Kumar Bhatia and Smt. Shobha Bhatia.

8. The demolition order dated 26.04.2018 was sent through speed

post on 27.04.2018. However, neither tracking report of the speed post is

A. No. 388/18 Ashok Kumar Bhatia Vs SDMC Page No. 3 of 8

 available on record nor the demolition order was sent in the name of the

appellant.

9. The respondent has not adduced any proof to show that the

demolition order dated 26.04.2018 was served upon the appellant earlier

or that appellant was aware about the demolition order prior to

26.09.2020.

10. It is also relevant to mention that the respondent issued show

cause notice dated 11.04.2018 in the name of owner / builder, which was

duly received by the appellant, who submitted their detailed

reply, which was received in the office of the respondent on

23.04.2018.

11. The Quasi Judicial Authority after receiving the said reply

passed the impugned demolition order dated 26.04.2018, holding that the

reply filed by the appellant was found unsatisfactory. However, nothing

has been mentioned in the entire order as to why the reply filed by

appellant was found not satisfactory.

12. It is relevant to mention that in the reply submitted by the

appellant to the show cause notice dated 11.04.2018, it has been

specifically mentioned that the flat in question is existing as it is for the

last 20 years, therefore, same is entitled for the protection under National

A. No. 388/18 Ashok Kumar Bhatia Vs SDMC Page No. 4 of 8

 Capital Territory of Delhi Laws (Special Provision) Second Amendment

Act, 2011.

13. The said plea taken by the appellant in his reply was required to

be dealt with by the Quasi Judicial Authority. However, the Quasi

Judicial Authority has not considered the plea taken by the appellant in

his reply filed pursuant to the show cause notice and passed the impugned

demolition order simply mentioning that the reply filed by appellant was

found not satisfactory.

14. The right to be heard is one of the fundamental principle of

natural justice, which is to be followed by all the Administrative

Authorities and Quasi Judicial Authorities. The basic fundamental

principle of natural justice is that the person against whom an order is

passed must know as to why and on what basis said

order has been passed. The order must be a speaking one, giving reasons

for reaching to the conclusion and must not be cryptic in

nature.

15. The Hon’ble Delhi High Court in case titled “Jaspal

Singh Jolly Vs Municipal Corporation of Delhi”, reported as 125 (2005)

DLT 592, has dealt with said issue, which is reproduced herein

below:-

A. No. 388/18 Ashok Kumar Bhatia Vs SDMC Page No. 5 of 8

 “Noting the decision of the
Supreme Court as Erusia
Equipments & Chemical
Ltd. Vs State of West
Bengal, (1975) 1 SCC 70:
AIR 1975 SC 266 (at P.
269); 106 (2003) DLT 573,
Mekaster Trading
Corporation Vs Union of
India; and (1990) 4 SCC
594, S.N. Mukherjee Vs
Union of India, I had held
that the aforesaid decision
established the legal
proposition that orders
which are subject to judicial
review must be in
compliance with the
principle of natural justice,
namely (a) proper hearing,
(b) decision by an unbiased
mind; (c) taking into
consideration all the
relevant factors and
excluding the irrelevant
factors; and (d) reasons to
be recorded.
Needless to state, reasons
enable the superior Court to
effectively exercise
supervisory jurisdiction.
Additionally, when reasons
are stated, the persons
affected knows the mind
against him. A decision may
be right, but not sound. Such
a decision leaves a grievance
in the mind of the person
affected that he was not told
why the decision was
taken.”

16. The impugned demolition order dated 26.04.2018, passed by the

Quasi Judicial Authority is thus not sustainable in

law as same has been passed without taking into considering

A. No. 388/18 Ashok Kumar Bhatia Vs SDMC Page No. 6 of 8

 the reply filed by the appellant pursuant to the show cause

notice.

17. In view of the above facts and circumstances, the appeal filed by

appellant is allowed. The impugned demolition

order dated 26.04.2018 is set aside. The matter is

remanded back to the Quasi-Judicial Authority for deciding the same

afresh.

18. The appellant shall appear before the Quasi Judicial Authority

on 31.01.2024 at 02.00 PM. The Quasi Judicial Authority shall provide

an opportunity to appellant to submit an additional reply, if any and also

grant them personal hearing.

19. The Quasi-Judicial Authority shall thereafter pass a speaking

order after dealing with all the submissions, pleas and defences raised by

the appellants and shall communicate the said order to

appellant. All the proceedings shall be completed by the Quasi

Judicial Authority within a period of 2 months from the date of

hearing.

20. The appellants shall however not raise any unauthorized

construction in the flat in question.

A. No. 388/18 Ashok Kumar Bhatia Vs SDMC Page No. 7 of 8

21. The record of the respondent be send back alongwith copy of

this order. Appeal file be consigned to record room after due

compliance.

Announced in the open Court

Today i.e. on 22.01.2024 (PITAMBER DUTT)
AD&SJ-cum-P.O.
Appellate Tribunal : MCD Delhi

A. No. 388/18 Ashok Kumar Bhatia Vs SDMC Page No. 8 of 8