Shri Periaswamy & Anr. vs The Commissioner Mcd & Ors.
2001 Latest Caselaw 178 Del

ORDER

Manmohan Sarin, J.

1. Petitioner has filed this writ petition seeking a mandamus to respondent Nos.1 to 3 to stop and demolish the illegal construction being raised by respondent No.4 over building No.5570, Gali No.75, Padam Singh Marg, Karol Bagh, New Delhi.

Notice to show cause was issued on 23.2.2000. As an interim measure, the Court had directed respondent Nos.1 to 3 not to permit any construction, which was in violation of the sanctioned plan or DMC Act and the building bye-laws.

2. Despite the said order having been passed on 25.2.2000, respondent/MCD booked the unauthorised construction only on 10.5.2000. Accordingly, vide order dated 31.10.2000, direction was issued for issuance of contempt notice to Sh.Rajesh Taneja, Executive Engineer (Building) as well as to Zonal Engineer (Building) to explain as to why unauthorised construction was booked on 10.5.2000, when this Court directed them not to allow any unauthorised construction on 23.2.2000. As no affidavits in response to said directions were filed by respondents, on 14.11.2000, the Court had directed, Dy. Director, MCD to submit his report as to why action was not taken. Thereafter, affidavits were filed.

3. From the perusal of the said affidavits, the explanation that emerged was that on account of frequent transfers of Junior Engineers, numbering three, there was delay in booking of unauthorised construction. The Court was not satisfied with the explanation as given. Counsel for respondent/MCD sought further time to file an additional affidavit. Additional affidavit has been filed on record. Mr. Rajesh Taneja, Executive Engineer, Mr. S.S.Deg, Assistant Engineer and Mr. I.U.Khan, Junior Engineer are present in Court. The additional affidavit, filed by the Dy. Commissioner, MCD, discloses that memos were issued to all the concerned persons to show cause as to why construction was allowed in violation of the sanctioned plan and why the construction was booked belatedly on 10.5.2000, when the Court had, on 23.2.2000, itself ordered not to allow any construction. The case has also been referred to the vigilance department of MCD so as to fix responsibility on the negligent officials. It has been brought out in the affidavit that although the booking of unauthorised construction was much later on 10.5.2000, the unauthorised construction itself had commenced even as per the averments made in the petition on 26.1.2000. It is averred that having regard to the nature and extent of unauthorised construction that was carried out, the same would have taken about 10 days. As such the construction was almost over by 23.2.2000, which fell nearly a month after the commencement of construction.

4. Learned counsel for the petitioner submitted that the construction continued even after the order had been passed by this Court on 23.2.2000, in collusion with respondents' staff. However, learned counsel very fairly submits that petitioner does not have in it possession any photographs, newspapers or any other evidence to show that the construction continued after the passing of the order. In these facts and circumstances, it cannot be said that there was any willful dis-obedience or contumacious dis-regard of the order passed by this Court, warranting continuance of contempt proceedings. As regards the second aspect, there is lapse and failure on the part of the respondent in booking the construction. Learned counsel for respondent urged that booking of unauthorised construction is only a step towards demolition and that by itself would not show that unauthorised construction had continued. There cannot be any dispute that booking of unauthorised construction should have been done promptly and without any delay and certainly not after a period of nearly two and a half months. The contemnors, who are present in person, tender their unconditional apology for this lapse and have expressed regrets for the same. They state that they would be careful in future. Moreover, the vigilance enquiry has also been ordered, which would fix the exact responsibility. Notices for contempt are accordingly discharged. Learned counsel for the respondent submits that unauthorised construction has been completely demolished. This fact is not disputed by learned counsel for the petitioner. Accordingly, the ends of justice, as regards demolition of unauthorised construction is concerned, have been met. No further orders are called for.

5. The writ petition stands disposed of.