Delhi High Court
N.D.S.E. Housing Society ... vs Municipal Corporation Of Delhi ... on 24 July, 1991
Equivalent citations: 45 (1991) DLT 37
Author: B Kirpal
Bench: B Kirpal, D Jain
JUDGMENT
B.N. Kirpal, J.
(1) This writ petition pertains to the alleged unauthorised construction of property No. B-4 and C-23 in N.D.S.E. Part I, New Delhi. It is alleged in the writ petition that in violation of the sanctioned plan and the building bye-laws these properties are under construction.
(2) In the reply filed on behalf of the Corporation it has been stated that there is no unauthorised construction which exists at premises No. B-4 and as such the Corporation is not taking any action in regard thereto. We do not propose, in view of the reply affidavit of the Corporation, to order any further investigation whether the reply of the Corporation is correct or not. If the petitioner has any grievance it is open to the petitioner to approach the civil Court for redress.
(3) As regards to building No. C-23 is concerned the Corporation has stated that the said property was not constructed in accordance with the sanctioned plan. It is further stated that due notice was issued and served on the owners/builders It is further stated in the reply affidavit that excess coverage at the basement was first booked by the respondent on 8th October, 1990. Thereafter more unauthorised construction took place on the ground floor, first floor and second floor and they were booked vide order dated 11th January, 1991. Show cause notice for demolition was also issued by the respondents and the building is alleged to have been sealed on 21st February, 1991. It is further averred that after the sealing of the building the owner/builder has requested the Corporation to de-seal the building so as to enable him to remove non compoundable deviations and rectify the other defects to bring the building within the building bye-laws.
(4) It is a matter of regret, though not to our surprise, that the Corporation have not acted diligently as far as this property is concerned. The Corporation was aware of the unauthorised construction since 8th Oct., 1990. It should not have permitted further construction on the building without first requiring the builder/owner to rectify the infringement. The Corporation has allowed the whole superstructure to be constructed and have then sought to seal the building, after the present writ petition was filed. Be that as it may. Counsel for respondent. No. 6 states that rectification plans have been filed. They were filed on 7th March, 1991. We direct the Corporation to dispose of those rectification plans within eight weeks from today and if the plans are passed then the building should be de-sealed and the respondent No. 6 should be permitted to demolish the un-compoundable portion of the building. It will be the duty of the said respondent No. 6 to bring the building in conformity with the rectification plans. This petition is disposed of in the aforesaid terms. We are making no observation with regard to the alleged proposed use of the building because it is not known as to what for purpose the building will ultimately , used. If the building is not used in accordance with law, the petitioner is free to avail of the remedies, if any, available to him.Order accordingly.
(5) The petitioner's grievance in this revision petition can be remedied by directing the trial Court to afford opportunity to the petitioner to produce evidence in respect to his income but that should be in the light of the documents already filed. The Court shall allow opportunity to the respondent to prove her present income and the factum of her alleged termination of service by evidence and correspondingly to the petitioner to rebut the same by evidence. The petitioner shall get opportunity of producing evidence as to the total personal income of the respondent. In view of the above, it is admitted on both sides that this revision petition has become infructuous and should be dismissed as such. It is, however, agreed that pending further orders of the trial Court, in terms of the directions given in this order, the petitioner shall go on paying maintenance as before.
(6) The petition shall pay Rs. 1,500.00 as litigation expenses of this revision petition. This should be paid before the next date in the trial Court. It is stated that the case is now fixed in the trial Court on 8th August, 1991. The parties shall appear in the trial Court on the date fixed personally or through their counsel.
(7) With these directions, the revision petition is dismissed as infructuous.
