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Mandatory for the Commissioner to give opportunity to affected person to be heard before passing an order under Section 338 of the DMC Act: The High Court of Delhi

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 further under sections 333, 334 and 335, he may be 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: Provided that before making any such order the Commissioner shall give reasonable opportunity to the person affected as to why such order should not be made. The aforesaid provision has been relied upon by the Delhi High Court while adjudicating the case of Suraj Bhan Chauhan v. South Delhi Municipal Corporation [W.P.(C) 6613/2021 & CM APPL.20793/202] which was decided by a single judge bench comprising Justice Sanjeev Sachdeva on 20th July 2021.

The facts of the case are as follows. Petitioner impugns order whereby the respondent corporation had revoked the sanctioned building plan under Section 338 of the Delhi Municipal Corporation Act, 1957 (hereinafter referred to as the DMC Act). Learned senior counsel for the petitioner submits that no show cause notice was ever served on the petitioner. He submits that a show cause notice was served on the architect and from the architect, the petitioner got to know of the same and accordingly sent a reply, however, the impugned order records that no reply to the said show cause notice has been received till then despite passage of stipulated time. Counsel submitted that no hearing as mandated under Section 338 of the DMC Act has been granted to the petitioner. On the contrary, counsel appearing for the respondent submitted that show cause notice was duly sent to the petitioner by speed post. He, however, conceded that at the time of passing of the order the reply has not been taken into account. He further submitted that the construction plan was sanctioned under the Saral Scheme by the architect by making misrepresentations. Accordingly, action has been taken against the architect. He further submits that since the property is situated in an unauthorised colony no construction activity is permitted therein.

The court considered the facts and arguments presented. It declared the impugned order as dismissed and asked to respondents to pass a fresh speaking order without being influenced by anything stated in this order. It declared that “Since one of the issues raised by the respondent Corporation is with regard to raising of a construction in an unauthorised colony, it is directed that the petitioner shall not carry out any further construction activity or create any third party rights in the property till the passing of the speaking order by the respondent Corporation. Thereafter the petitioner would be permitted to raise construction only if permitted by the said speaking order and in case the same is not permitted and the sanction plan is revoked, petitioner would be at liberty to avail of his remedies in accordance with law. With the consent of parties it is directed that petitioner shall appear before the concerned Deputy Commissioner, South Zone on 27.07.2021 at 2.30 PM. Petitioner shall be at liberty to produce additional documents in support of his reply on the said date before the concerned officer. The officer shall thereafter pass a speaking order within a period of two weeks therefrom.”

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