Sarla Kumari vs H.L. Dua
1991 Latest Caselaw 142 Del

JUDGMENT

Santosh Dnggal, J.

(1) Pursuant to our last order, affidavit of the Chief Secretary has been filed. It has been stated therein that the menace of unlawful constructions has a.ssumed alarming proportion and that the duty in primarily cast on the Corporation to identify the violations and to proceed accordance with law. The Chief Secretary has further stated that the Administration can give police aid for carrying out demolition of such construction on receipt of requisition from the Corporation. The modifications which have been made in the bye-laws have also been clarified in this affidavit. According to the revised bye-laws excess coverage up to 20% per floor, subject to a maximum of 450 sq. ft. and compounding of infringement of setbacks up to a maximum limit of 2 ft., on payment of compounding fee, have been notified, It is, however made clear that the said relaxation applies only to constructions which come up prior to the date of notification i.e. 13th December, 1990 Cases of future constructions, namely, where the construction in completed or undertaken after 13th December, 1990 the compounding of excess coverage is to be restricted to 10% per floor and the infringement of setbacks up to 1 ft. The purpose of the aforesaid relaxation is stated to be to create conditions where minor deviations could be compound and major violations are identified and dealt with sternly by the concerned authorities.

(2) Keeping in view the aforesaid averments of the Chief Secretary, we direct the Municipal Corporation as follows :

(1)The Corporation shall, where it has not already down so, issue to the owners/occupiers/builders of the buildings where illegal construction has taken place, appropriate notices indicating the extent of excess coverage or of the built up area. The show cause notices should be for sealing and/or demolishing the area which has been constructed in excess of the compoundable limits.

(2)The aforesaid show cause notices, if not already issued, should be issued as soon as possible but not later than 6 weeks from today.

(3)On receipt of the show cause notices, and even earlier, the owners/ occupiers/builders will be at liberty to file fresh building plans with the Corporation which should be in conformity with the existing bye-laws. Such building plans should not be filed later than 4 weeks after the receipt of the show cause notices and the said plans can be filed, if the owner or builder does not file the same, even by the occupier notwithstanding the provisions to the contrary in the building bye-laws. This is being done with an attempt to regularise, as far as possible, the existing construction.

(4)The building plans so filed shall be examined and either approved wholly or partially or reasons for rejection intimated within 4 weeks of receipt of the building plans in accordance with law. If the building or modification plans have already been filed the same should also be dealt with in accordance with law.

(5)Wherever the Corporation finds, pursuant to the issuance of the show cause notices, that construction has taken place beyond the compoundable limits then it is in respect of the said excess area that orders will be passed by the Corporation directing the sealing of the name and demolition thereafter.

(3) It is further directed that no civil suit shall be entertained by any court in Delhi in respect of any action taken or proposed to be taken by the Corporation with regard to the sealing and/or demolition of any building or any part thereof. Any person aggrieved by an order of sealing or demolition which is passed shall, however, have the right of filing an appeal to the Appellate Tribunal under the Municipal Act. The Appellate Tribunal is the only forum which has the jurisdiction to grant interim relief.

(4) Where civil courts have already issued injunctions, the Corporation is at liberty to approach those courts for variation and vacation of the injunction orders in the light of this order. We may here note that under Section 343(4) of the Act, the courts are prohibited from entertaining any suit, application or proceedings for injunction or other relief against the Commissioner restraining him from acting under the provisions of Section 343. With regard to the sealing, under Section 347B, an appeal is provided under sub-clause (m) of sub-section (1) to the Appellate Tribunal against an order directing the sealing of unauthorised construction. This obviously means that when this special provision by way of appeal is provided, no civil suit can be filed or entertained.

(5) The Delhi Administration and Police Authorities shall, on request being received from the Corporation, render all assistance to the officers of the Corporation in the discharge of their duties whether it be in relation to the sealing of any premises or demolition thereof.

(6) Pending further orders of this Court, no third party interests shall be created in respect of title or possession of any of the buildings which are the subject-matter of this writ petition accept with the permission of this Court.

(7) We are also informed that there has been change in user of most of the buildings. For this the action can also be taken by the Land & Development Office. Wherever there is any such change in user, the Municipal Corporation shall, within 2 months from today, inform the L & Do about the same and we expect the L & Do to take action in accordance with law for such misuser.

(8) The Corporation will file an affidavit on or before 10th July, 1991 informing the Court as to what action has been taken after today in respect of the various properties with which we are concerned. The case to come up in Court for further orders on 15th July, 1991.

(9) Copy of this order be given to counsel for the Corporation and Delhi Administration.