By Kunal Rao
Le Meridian hotel once again knocked the doors of Delhi High Court against the showcause notice of NDMC.
The Show Cause Notice has been issued by NDMC to demolish the unauthorized deviations outside the approved building plan made by Le Meridian situated in the heart of Capital City Delhi without compounding the said deviation.
NDMC issued showcause notice under Section 247 of NDMC Act, 1994 for illegal constructions carried out without seeking any permission from the council. “The unauthorised construction is required to be demolished,” the notice stated. There were three parties in the matter against NDMC. One is the occupant of jewellery shops situated in the main building of Le Meridian Hotel, the other occupants is Reliance Industries limited whose office is in building and third is CJ International (Le Meridian) itself.
During the course of hearing on Wednesday and Thursday this week, Senior Counsel Amarjit Singh Chandhok raised the arguments contending that showcause notice issued by NDMC has no basis as the said construction was done prior to Act came into existence. “There isn’t any jurisdiction of NDMC to take action on my property as the act doesn’t come in place. On April 9, 1999 the Notice issued to me first time after the passing of the NDMC Act. Saying there is some Construction which is not in accordance with law and required to be sealed till demolished? Could this be possible if there isn’t any jurisdiction of the NDMC than also they can issue such show Cause notices,” said Chandhok.
Justice Yogesh Khanna inquired, “Your submission is that NDMC decision to demolition the structure is beyond their jurisdiction and it should be done prior to 1994?”
“Exactly this is my submission. My construction was prior to 1994. There was a limitation period of 6 months, if any objection for deviation, to be raised”, replied Chandhok. “Permission to build was under Punjab Municipal Act 1911 how could be demolition Order comes under the NDMC Act 1994 which comes many years after the construction and remember there is limitation period of 6 months.”
“Another thing is Show Cause Notice is not from the Chief Architect he should have duly applied his mind if it could be. The matter should be gone before the Chief Architect and the impugned Order passed by Respondents No 2/Issued by Executive (Director Estate and Building, Mr Rajshekhar) Engineer In spite of the Chief Architect. Assuming the Order passed by the Respondent No 3/Chief Architect passed the show Cause Notice he should have duly apply his mind but the question of jurisdiction come there. It’s not a case for made a show Cause. In Section 247 NDMC Act commissioner can’t pass Show Cause Notice. All the material regarding the building plan but none of that is mentioned in the Show Cause Notice Issued by NDMC, not a whisper. There is a jurisdiction error on the face of record. The tribunal has no jurisdiction and the NDMC has no jurisdiction,” pointed out Chandhok
Additional Solicitor General Maninder Kaur Acharya appearing for Centre and NDMC suggested to refer matter to monitoring committee, which was strongly opposed by Petitioner’s counsel Chandhok, who said: “A Judicial adjudication can never be subjected to executive authority. It’s not that if we are standing in Supreme Court we can’t be wrong. I recall the words of Supreme Court Justice who said that and send the matter back to subordinate court for adjudication. The monitoring committee is only for the Misuser of residential premises into commercial purposes. All parts missing to refer this matter to the monitoring committee as it’s not a residential premise and we are not misuser of it. It’s a commercial property.”
Acharya further added, “Firstly it has to rightly examine whether High Court have the authority to exercise the writ field by the petitioner under the prevailing laws or not. High Court must not interfere if the petitioner has the alternate remedy. If the party has equivalent and reasonable remedy available elsewhere then the High Court must refuse to hear the petitioner who filed a writ under article 226. We have specialized Tribunals to deal with these kinds of Cases. Whether a said construction is prior to 1994 or not, is a question of fact and should be dealt in the appropriate court.”
ASG raised certain points to counteract the submissions made by petitioner. These are:
- We have taken action as given in the act and we are following the NDMC Act only under Section 247 of the NDMC Act 1994.
- According to the Act the Commissioner has power to issue Order of Demolition.
- No Court shall entertain except the Appellate Tribunal to entertain the grievance made by the person against whom the Notice been Issued.
- As per the Section 416 of the NDMC Act 1994 I deemed to have right to issue Notice and jurisdiction to deal with the Unauthorised construction. Notice etc Deemed to have made under the Act.
- Punjab Municipal Act 1911 has been repealed. It’s has been amended in year 1984.
- Facts in this case are so ordinary and it should be heard by the Appellate Court.
- These matters will require sanctioned plan.
- As per the NDMC Act, the Notice will be Issued by the Chairman as he deems fit for the demolition of the Unauthorised structure. According to that a reasonable opportunity shall be given to the opposite party to show Cause.
- NDMC Act 1994 says for any kind of Unauthorised construction where any Notice to be Issued, it shall be Issued by the Municipal officers, Municipal Employees or any other person authorised by the Chairperson.
- Delegation of Powers, Chairperson May conferred powers to any other person working under the Municipal Corporation. In this case Notice Issued by the Municipal Officer/Executive Engineer.
- Act nowhere says that Notice to be Issued by the Chairperson. But it says it should be Issued by the person as the Chairperson deems fit. In this case Notice Issued by the Executive Engineer for which an objection raised by the petitioner.
The arguments shall continue on the next date of hearing i.e. March 6, 2019.
India Legal has done a story in mid January this year explaining the longstanding financial dispute between Le Meridian and NDMC. Link to story is given below