Hotel Rajdoot Pvt. Ltd. vs B Municipal Corporation of India

B.N. Kirpal, J.

(1) The two questions which arise for consideration in this Letters Patent Appeal are (1) as to what would amount to the refusal to grant permission as envisaged by the proviso to sub-section (2) of section 346 of the Delhi Municipal Corporation Act ,1957 (the Act), and (2) whether any hearing is necessary be-fore the Corporation offers to compound the offence u/s 468 of the Act at a particular figure ?

(2) The appellant had constructed a Hotel known as Hotel Rajdoot, at 13-B, Jangpura, Mathura Road, New Delhi. On 20/10/1963 the building plan was sanctioned. After the plans had been sanctioned the appellant carried out the construction of the said Hotel. According to the provisions of section 346 of the Act, before the premises which are constructed can be occupied, it is necessary to obtain a completion certificate. The said section reads as follows :

"(1)Every person who employs a licensed architect or engineer or a person approved by the Commissioner to design or erect a building or execute any work shall, within one month after the completion of the erection of the building or execution of the work, deliver or send or cause to be delivered or sent to the Commissioner a notice in writing of such completion accompanied by a certificate in the form prescribed by bye-laws made in this behalf and shall give to the Commissioner all necessary facilities for the inspection of such building or work.(2) No person shall occupy or permit to be occupied any such building or use or permit to be used any building ora part thereof effected by any such work until perinission has been granted by the Commissioner in this behalf in accordance with bye-laws made under this Act Provided that if the Commissioner fails within a period of thirty days after the receipt of the notice of completionto communicate his refusal to grant such permission, such permission shall be deemed to have been granted."

(3) The appellant gave a notice of completion of the building on 23/06/1965 u/s 346(1) of the Act. After the sending of the notice, the appellant received a reply, dated 17/07/1965from the respondents. The relevant portion of the said reply reads as follows :

" WITH reference to your Cc application, dated 23-6-65 I have to inform you that the same cannot be considered as valid notice until the following information, as required u/s 335(1)(2) of the Municipal Corporation of Delhi Act, 1957 has been furnished to the satisfaction of the Commissioner.1. Finishing work is still going on in the building.2. to 12. ********13. Some work still going on in the basement.14. to 27. ********Please remove all the above 27 points."

Thereafter some correspondence took place between the parties and ultimately on 29/12/1965 the respondent set a notice requiring the appellant to deposit a sum of Rs. 29,975 for compounding of the compoundable item. The relevant portion of the said notice reads as follows :

" IN Continuation of this office letter No. Dated you are hereby informed that your case for completion certificate shall be rejected in case you fail to comply within seven days of the receipt of this letter to the points mentioned below :Please note that you are liable to be presented u/s 346 of the D.M.C. Act for unauthorised occupation of the building.1. Please deposit Rs. 29,975 as C.T. off compoundable item *** **"

The appellant did not comply with the terms of the letter and filed writ petition being Civil Writ No. 400-D of 1966.

(4) The respondents filed their affidavits in reply to the said writ petition and after pleadings were completed the writ petition was ultimately disposed of by the judgment, dated 13/02/1974.The learned single Judge repelled the contentions raised on behalf of the appellant and dismissed the writ petition. The present appeal has-been filed against the said judgment of the learned single Judge.

(5) The first contention on behalf of the appellant, which was also the contention raised before the learned single Judge, is that on a correct perusal of section 346 of the Act it must be held that the appellant is entitled to the benefit of the proviso to the said section. It is contended that the section postulates a communication from the Commissioner slating positively that the permission asked for is refused .The contention is that the letter of 17/07/1965 had been issued u/s 335 of the Act purporting to ask for information from the appellant and the said letter did not amount to refusal as contemplated by the said section. In our opinion, the learned single Judge was right when, while dealing with this contention, he bald that it could not be said that by the issue of the said letter the Corporation had not refused to sanction the completion certificate and should ,Therefore, be deemed to have sanctioned it by fiction of law. It is to be seen that the Corporation took a positive step on the receipt of the notice u/s 346 of the Act. The Corporationadmittedly did not grant the permission which was sought tor. On the contrary ,by the said letter, dated 17/07/1965, it was specifically stated ,apart from number of other defects which were pointed out therein ,that the building had not been completed. The mere fact that in the said letter it was not stated that the permission sought for is refused is wholly immaterial. The said letter has to be read as a whole and it clearly shows that the Corporation had applied its mind and came to a conclusion that on the notice as given, and considering the state of the building, the completion certificate could not be granted. The reference to section 335 in the said letter has been wrongly made .The relevant provision in a case where deviation had been made would be section 345 of the Act. Whenever any notice is received and a communication is sent to the applicant within the period of 30 days pointing out the deviation which had been made and requiring the deviation to be rectified u/s 345 of the Act, it is implicit therein that the permission sought for by notice u/s 346 is being refused and is not being granted.

(6) The learned counsel for the petitioner has relied upon a single Bench decision of this count in the case of Savitri Devi v. Municipal Corporation 1975 Rlp (Note) 46 (CW 1449/73, decided on20-12-1974). In our opinion, the said decision is not applicable to this case. In the said case the provision which came up for construction was section 337 of the Act. Though there is a deeming; provision in the said section, the said section has to be read along with sections 333 and 335 of the Act. The reading of the three provisions together ,it is clear that the said provisions are not in pari materia with the provision of section 346 of the Act. In our opinion, it is not necessary that there should be a communication stating expressly that the permission asked for is refused. The said decision is clearly distinguishable on facts as well as on law. We do not understand that judgment to lay down the rule that in the absence of an express refusal in the reply to the notice u/s 346(1) the permissions deemed to have been granted even in a case where the perusal of the said reply clearly indicates that the permission sought for is not being granted. If the said judgment is construed to mean to the contrary ,then, in our opinion, it would not be laying down the correct law .

(7) The second contention raised by Mr. Choudhry is that the principles of natural justice have been violated. It is contended that it was obligatory on the respondents to give the appellant an opportunity of being heard before the letter dated 29/12/1965,whereby the appellant was asked to pay the compounding fee of Rs. 29,9751, was communicated. In our opinion, there is no merit in this contention. If the Corporation was of the opinion that there has-been deviation from the sanctioned plan, it was open to the Corporation to prosecute the appellant. Section 468(1) enables the Corporation to compound any offence made punishable by or under the Act. Principles of natural justice postulate that no action to harmany one should take place without notice. In the present case, whathas happened is that the appellant is being given an opportunity ofnot facing prosecution by paying a certain amount of money. Theappellant is free to accept this offer or reject it. The amount asked foris neither a penalty nor a fine. This is in fact a beneficialprovision and if the appellant does not pay the sum of Rs. 29,975.00the same cannot be recovered by the Corporation in any manner whatsoever. We fail to understand as to how the principles of naturaljustice could be attracted in such a case. The appellant cannot insiston the Corporation making an offer after having given the appellantan opportunity of being heard as to how much amount should be offeredfor compounding the offence. In our opinion, there is no force in this centention and we agree with the judgment of the learned singleJudge.

(8) It is contended by Mr. Choudhry that there is no guideline asto how much amount can be charged for compounding the offence u/s 468 of the Act. It is a matter of mutual agreement betweenthe parties. There can be no guideline fixed for arriving at asagreement, just as u/s 320 of the Criminal Procedure Codealso no guideline for compounding of the offences at a particularamount has been laid down. We are informed that the Corporationhas laid down guidelines for fixing of the amount u/s 468.It has not been shown that the amount which is being demanded is contrary to the said guidelines.

(9) In the result, the appeal fails and is dismissed with no order as to costs.