Roma Dutta And Anr. vs Municipal Corporation Of Delhi ...
2006 Latest Caselaw 283 Del

JUDGMENT

Markandeya Katju, C.J.

Page 0859

1. This writ appeal has been filed against the impugned judgment of the learned Single Judge dated 1st November, 2004 by which the writ petition was dismissed.

2. Heard learned counsel for the parties and perused the record.

3. The facts in detail have been set out in the judgment of the learned Single Judge and hence we are not repeating the same, except where necessary.

4. By means of the writ petition the petitioners (the appellants herein) prayed for a Writ of Certiorari to quash the regularisation order No. 151/RZN dated 18.3.1999 and the regularisation plan released on 20.9.1999 by respondent Nos. 1 & 2 in respect of A-1 Kailash Colony, New Delhi. The petitioners also prayed for a Writ of Mandamus to direct respondent Nos. 1 & 2 to implement and enforce the demolition order dated 10.9.2001 and the mandate of the judgment dated 27.11.2002 passed in Suit No. 1287/2001.

5. The petitioner No. 1 is a resident of residential house No. A-2, Kailash Colony, New Delhi. The petitioner No. 2 is her son. It is stated in the writ petition that they have a right to life under Article 21 of the Constitution, which means a life of dignity as interpreted by the Supreme Court, free from pollution and nuisance in the form of illegal commercial activity and construction being carried out in a residential area, more particularly, in the property adjoining the petitioners' residence contrary to the provisions of Page 0860 the Delhi Municipal Corporation Act (hereinafter referred to as 'the Act') and the Master Plan for Delhi 2001.

6. It is alleged in para 1.2 of the writ petition that the petitioners have been hemmed in by respondent Nos. 3 to 7 who are the the owners of both the adjacent properties i.e. A-1 and A-3 Kailash Colony, New Delhi as well as A-5 and A-38 Kailash Colony, New Delhi in which commercial activities are being illegally carried in the residential area. It is alleged that the respondent Municipal Corporation of Delhi has failed to take action in spite of order dated 21.11.2002 in CCP No. 570/2001, vide Annexure A-1. By that order of this Court the respondent MCD was directed to take action for demolition of the illegal construction at A-3 Kailash Colony, New Delhi within 12 weeks. It is alleged that despite this order the MCD has not taken any action till date. Respondent Nos. 3 to 7 are the owners/builders of the buildings situate at A-1 and A-3 Kailash Colony, New Delhi. Respondent No. 8 is the present occupant of the basement, ground, first and second floors of the said property which has been put to commercial use.

7. In para 3.1 of the writ petition it is alleged that the petitioners are residents of A-2, Kailash Colony, New Delhi along with their family members. Respondent Nos. 3 to 7 are the owners and occupants of the adjacent properties. Respondent Nos. 3 to 7 have over a period of time, in particular, since June, 2001, carried out construction on the said property contrary to and in violation of the provisions of the Act, in particular, Section 336.

8. It is alleged that aggrieved by the unauthorised illegal construction in the said property which abuts and adjoins her residence i.e. A-2 Kailash Colony, New Delhi, the petitioner No. 1 filed a Suit being Suit No. 1287/2001 in which an exparte judgment dated 27.11.2002 was passed injuncting respondent Nos. 3 to 7 from carrying any further construction in violation of the building bye laws. Respondent Nos. 3 to 7 filed an application under Order 9, Rule 13 CPC for setting aside the said judgment and decree, but respondent No. 1, MCD has not filed any such application. It is alleged that respondent Nos. 3 to 7 have not obtained any stay of the operation of the judgment dated 27.11.2002 It is alleged that despite the judgment dated 27.11.2002 the MCD has not done anything to rectify the wrong done to the petitioners and is hand in glove with respondent Nos. 3 to 7.

9. It is alleged in para 3.7 of the writ petition that in view of the stand taken by the MCD before this Court that the construction in the property in question had been regularised from ground floor to the second floor by virtue of an application and consequent order bearing No. 151/RZN dated 18.3.1999, this Court in Suit No. 1287 of 2001 confined the challenge by the petitioner No. 1 to the illegal construction to the non-compoundable portion of the said property i.e. the additional floor, based on the stand disclosed in the written statement filed in the Suit by the MCD. It is alleged that as per the MCD's circular dated 1.2.1999 the deviations in the property which were purportedly compoundable are subject to the conditions stipulated in the circular and if those conditions are not complied with, the MCD is duty bound to demolish even the portion in respect of which it has granted Page 0861 approval for regularisation. A true copy of the said circular is Annexure A-4 to the writ petition. These conditions are as follows:-

(a) That the Application for regularisation had to be filed prior to 5th March,1999.

(b) Undertaking had to be furnished by the Applicant seeking regularisation that at the stage of regularisation no Court case was pending. In cases which were under litigation in the court and the M.C.D had filed parawise comments/affidavits etc the applications had to be routed through the Chief Law Officer for filing an additional affidavit in Court before regularising the compoundable / non-compoundable unauthorised structure.

(c) That the portion which was regularised and shown in red in the regularisation plan would be subject to the condition that it would not confer any right on the Applicant to continue with the construction shown in yellow i.e. the non-compoundable deviation and specifically misuse in any part of the building carried out in violation of the sanctioned plan.

10. As regards the first condition, it is alleged in para 3.9 of the writ petition that that the MCD has placed nothing on record to show that the application for regularisation was filed prior to the stipulated date i.e. 5.3.1999. As regards the second condition the MCD was required to file an affidavit stating that at the stage of consideration of application for regularisation no Court case was pending regarding the said property. It is alleged that the second condition was not fulfillled as Suit No. 770 of 1998 was pending adjudication in the District Court at Tis Hazari to which petitioner No. 1 and respondent Nos. 3 to 7 were parties. The said suit was disposed of in the presence of counsel for the MCD on 1.9.1999. As regards the third condition, it is alleged that the same has been clearly violated as Respondent Nos. 3 to 7 have refused not only to demolish the non-compoundable deviation of the said property, but have now changed the use of the said property from residential to commercial by induction of respondent No. 8. In the board put up by respondent No. 8 at the property it is stated that it is a College of Engineering Studies, College of Management Studies, College of Legal Studies as well as Centre for Research and Development and International School of Petroleum etc.

11. It is alleged in para 3.14 of the writ petition that respondent Nos. 3 to 7 are continuing with illegal construction in the said property and have also changed the user from residential to commercial by inducting respondent No. 8 in the said property in respect of which no action has been taken despite several letters by the petitioners. It is alleged that petitioner No. 2 had personally met respondent No. 2 and brought to his notice the factum of on-going illegal construction and the change of user from residential to commercial in the said property, but to no avail. It is alleged that respondent No. 8 is causing not only nuisance but has also polluted the ambient air quality by installation of a 30 KV generator in the side set back of the said property which is causing noise and air pollution to the distress of the petitioners and the members of their family. It is alleged that respondent Nos. 3 to 8 have no requisite authority or permission to install the said generator. It is alleged that the commercial activity being carried on from the said premises apart from being a major nuisance is causing traffic chaos in Page 0862 the area. Annexure-6 to the writ petition contains photographs showing the commercial activities in the premises.

12. A status report was filed by the MCD and we have perused the same. It is stated therein that the case was considered as per the rules and after taking orders from the competent authority the property in question from basement to part third floor had been regularised and regularisation plan was released on 20.9.1999. The portion which is non-compoundable has been shown in yellow colour in regularisation plan and the same is liable to be demolished. A copy of the regularisation plan is Annexure R-1 to the status report. The unauthorised construction shown in yellow colour in the regularisation plan has been booked vide unauthorised construction File No. 268/B/UC/SZ/2003 dated 7.11.2003. A show cause notice under Section 344(i) and 343 of the Act was issued and served upon the owner/builder.

13. It is also stated in the status report that part of the ground floor and first floor of the property in question is being misused by running commercial activities for which prosecution under Section 347/461 of the Act has been initiated. It is further stated therein that the owner/builder had raised unauthorised construction in the shape of a hall and pillars at the third floor after issuance of the regularisation plan. Accordingly, the same was booked vide unauthorised construction File No. 274/B/UC/SZ/01 dated 27.8.2001 and demolition order was passed on 10.9.2001 for the demolition of the unauthorised construction. However, demolition action could not be taken due to non-availability of police force and shortage of time.

14. We have perused the counter affidavit filed by respondent Nos. 3 to 7. It is alleged in para 4 of the same that the property in question is being used for non-residential purposes even prior to the coming into force of the Master Plan and Zonal Development Plan. Hence, it is alleged that as per the provisions of the Delhi Development Act,1957, it shall be lawful to continue to use the building for such purpose as it was being used before the Master Plan or Zonal Development Plan came into force. Hence, it can be used for non-residential purposes.

15. The respondent Nos. 3 to 7 have also relied upon the proviso to Section 14 of the Delhi Development Act. It is alleged in para 7 of the counter affidavit that in pursuance to the amendment in the Master Plan, the MCD has framed the policy for regularisation of the existing structures in the same shape, size and extent and passed the Resolution No. 557 dated 22.3.1999.

16. We have also perused the counter affidavit of respondent No. 8.

17. The petitioners have relied on on the decision of the Supreme Court in Friends Colony Development Committee v. State of Orissa and Ors. in which it is stated that regularisation should only be done by way of exception, even if there is a rule permitting regularisation.

Page 0863

18. In March,1999 respondents 3 to 7 had filed an application with the MCD for regularisation of deviations in A-1 Kailash Colony, New Delhi and by order dated 18.3.1999 the MCD regularised the deviations and released regularisation plan of 20.9.1999 with the following endorsement:-

Request for regularisation for the portion shown in red is accepted subject to the condition that this will not confer any right to continue with the construction shown in yellow in the Plan and for misuse of any part of the building being carried out in violation of sanctioned use.

19. The aforesaid endorsement on the plan was based on a Circular dated 1.2.1999 issued by the MCD. However, contrary to the conditions contained in the regularisation plan dated 20.9.1999 respondents 3 to 7 carried out large scale unauthorised deviations in the suit property which necessitated filing of Suit No. 1287/2001. In fact, this was a second suit earlier one being Suit No. 770/1998 which was disposed of on 1.9.1999 on an undertaking of respondent Nos. 3 to 7 that no construction shall be carried out by them without a sanction plan and/or in violation of building bye-laws.

20. Suit No. 1287/2001 was decreed exparte on 27.11.2002. Though an application for setting aside the ex-parte decree was filed by respondents 3 to 7, but no stay order has been passed. The MCD has not filed any appeal against the said decree dated 27.11.2002. In para 3 of the written statement filed by the MCD in Suit No. 1287/2001 it has been admitted that respondent Nos. 3 to 7 carried out unauthorised and illegal deviations in the suit property.

21. In view of the inaction of the MCD and the acts of respondents 3 to 7 in letting out the suit property for commercial purposes to respondent No. 8, which causes nuisance and impediment to healthy environment of the petitioners, they filed WP(C) No. 5798/2003 in this Court.

22. From the facts of the case we are of the opinion that the MCD and private respondents have not demonstrated bona fides on their part in complying with the law and orders of this Court/authorities.

23. It may be noted that by the impugned judgment dated 1.11.2004, while recording the stand of the MCD, the private respondents and the petitioners, the learned single Judge had directed that respondents 3 to 7 shall demolish on their own the non-compoundable deviations indicated in yellow colour in the regularisation/compounding plan within a period of two months. However, they have failed to comply with that part of the order of the learned Single Judge. Hence, at the time of admission of this appeal the Division Bench directed respondents 3 to 7 to carry out the mandate of law and to correct the non-compoundable deviations. From the status report filed by the MCD it is evident that the largest deviation, which is in the basement of the suit premises comprising of 5154 sq. ft has not been corrected by filling it up completely with earth, despite orders of the Division Bench passed in this appeal.

Page 0864

24. Although in this appeal the appellants have prayed that even the regularising order made by the MCD should be quashed, we are of the opinion that it would not be feasible to do so at this stage. However, we direct that the non-compoundable deviations shall be demolished by the respondents 3 to 7 forthwith, failing which it will be done by the MCD with police help. The MCD shall also ensure that no commercial activity is carried out in the premises in question as it is a residential area.

25. Hence, this appeal is allowed and it is directed that non-compoundable deviations shall be completely demolished forthwith in the property in question by respondents 3 to 7, failing which it will be completely demolished by the MCD with police help and the MCD shall also ensure that no commercial activity is carried out in the premises in question.