B.K. Bhargava vs Municipal Corporation Of Delhi
1997 Latest Caselaw 271 Del

JUDGMENT

K.S. Gupta, J.

(1) In this petition filed under Article 226 of the Constitution of India, petitioners allege that they are the owners of property bearing No. 5048/49, Plot No. Ii, Netaji Subash Marg, Daryaganj, New Delhi and had let out a portion thereof on the ground floor to Sukhdev Raj Arora, respondent No. 3 under a rent note dated June 25, 1984 (Annexure A) with effect from July 1,1984. Portion let out to respondent No. 3 has been shown in red colour in the site-plan (Annexure B) attached with rent note. At the time of letting, tenanted premises had a Duchhatti/mezzanine floor only in a small portion thereof as shown in brown colour in the said site-plan.

(2) In the month of June, 1994 when both the petitioners were out of station, respondent No. 3 made unauthorised construction of a Duchhatti /mezzanine floor in the entire tenanted premises with the height of 6 and damaged at many places the brick wall adjoining the stairs on the front side as well as the walls of the tenanted premises by laying underground wirers and cables in the newly constructed mezzanine floor. Respondent No. 3 further unauthorisedly covered the portion with iron cage starting from backside wall outside the tenanted premises abutting Khankha Road and also over the shutters fixed in the said wall. Unauthorised constructions, additions and alterations made by the respondent No. 3 are in violation of provisions contained in Section 334 of the Delhi Municipal Corporation Act and also the building bye-laws. Respondent No. 1 has started using the entire mezzanine floor for office purpose in contravention of the provisions of Delhi Fire Prevention and Safety Act. It is further alleged that immediately on coming to know of the unauthorised constructions, additions and alterations, petitioners informed the Municipal Corporation of Delhi, respondent No. 1 and Junior Engineer (Buildings), Mcd City Zone, Minto Road, by means of notice dated July 19, 1994 delivered by hand but they failed to perform their statutory duties as provided under the law by not taking suitable action against respondent No. 3 till date. It is prayed that by issuing an appropriate writ or direction respondent Nos. I and 2 may be directed to demolish the unauthorised constructions, additions and alterations carried out by respondent No. 3 in the tenanted premises.

(3) In response to the show cause notice respondent No. 3 had filed reply. It is not disputed that the premises on the ground floor of property No. 5048/49 was taken on lease from the petitioners with effect from July \, 1984, as alleged. However, it is alleged that the mezzanine floor was erected within the tenanted premises at the time it was taken on rent and same was only replaced by placing slabs. It is further alleged that Clause 8(i) of the rent note entered into between the parties permits respondent No. 3 to build any kind of temporary structure or to make partition walls or to do any kind of improvement of decorative nature which is not detrimental to the premises or to the interest of the landlord directly or indirectly. Nothing of the sort which does not fall within that clause had been done. It is emphatically denied that any unauthorised constructions, additions and alterations have been carried out in the tenanted premises as alleged by the petitioners.

(4) In their joint reply on the affidavit of D.P. Dharma, Zonal Engineer (Building), City Zone, Minto Road, respondents I and 2 have alleged 'that property No. 5048/49, Netaji Subhash Marg, was constructed even prior to the coming into being of the Municipal Corporation of Delhi. The entire mezzanine floor in the property including the portion is unauthorised and is liable to be demolished. It is further stated that respondents I and 2 are contemplating to take action for demolition after service of the notice which is expected to be issued shortly.

(5) We have heard petitioner No. 2 who appeared in person and also the learned Counsel for the respondents.

(6) According to the petitioners, at the time of letting the tenanted premises on July 1,1984 it had a Duchhatti/mezzanine floor for storing the goods only in a small portion as shown in brown colour in the plan (Annexure B) but taking advantage of the absence of the petitioners who are in occupation of the first and second floors of the property, in June, 1994 respondent No. 3 got unauthorisedly constructed a Duchhatti/mezzanine floor in the entire tenanted premises with the height of 6' besides getting it covered with iron cage the portion starting from backside wall outside the tenanted premises abutting Khankha Road and also over the shutters fixed in the said wall in contravention of the provisions of Delhi Municipal Corporation Act and the building bye-laws made thereunder. Respondent No: 3, however, denies the fact and pleads rear Duchhatti/mezzanine floor which was already erected inside the tenanted premises, was got replaced with slabs by him. Claim and the counter claim made on behalf of the petitioners and respondent No. 3 raises highly disputed questions of fact which cannot be gone into writ jurisdiction. The parties have to get the same adjudicated by resorting to appropriate remedy in accordance with law. Nevertheless, a statutory duty is cast on respondent No. 1 to ensure that no unauthorised construction is made within the Municipal limits in violation of the provisions of the Delhi Municipal Corporation Act and the building bye-laws made thereunder. If respondents I and 2 find that any unauthorised construction/addition/alteration was carried in property No. 5048/49 in contravention of the provisions of the said Act and the bye-laws they are bound to remove it in accordance with law.

(7) Petition is accordingly disposed of with the direction to respondents I and 2 to initiate appropriate action within a period of two months from the date of receipt of a writ order from this Court for removal of unauthorised construction/ addition/alteration, if any, made in said property No. 5048/49. Plot No. Ii, Netaji Subhash Marg, Darya Ganj, in accordance with law.