Delhi High Court
Jugal Kishore Lawaria vs Uoi & Ors. on 6 May, 2009
Author: Ajit Prakash Shah
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 17800/2006 &CM Nos. 14778/06 & 1198-99/07
JUGAL KISHORE LAWARIA ..... Petitioner
Through: Mr. M. C. Dhingra, Advocate.
versus
UOI & ORS. ..... Respondents
Through: Mr. Tarun Sharma, Advocate for Respondent
Nos. 1 and 2.
Ms. Smita Shankar, Advocate for Respondent No. 3.
Ms. Amita Singh, Advocate for Respondent DDA.
Mr. S.M. Chugh, Advocate for Respondent No. 6.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE NEERAJ KISHAN KAUL
ORDER
% 06.05.2009
1. The present writ petition was filed by the petitioner seeking
issuance of a writ of mandamus or any other appropriate writ order
or direction to stop the ongoing illegal construction undertaken by
respondent No. 6, namely, Arya Samaj Mandir, Rajendra Park, New
Delhi. It was alleged that banquet hall and rooms were being
constructed for commercial use in the residential colony without
sanctioned plan.
2. On 17th January, 2007, the following order was by this Court:-
" It is the admitted position that
unauthorized construction on the ground floor
and first floor in the form of rooms and toilets on
the back side of the Temple was/is being carried
out. Despite the fact that the MCD had booked
the said unauthorized construction, yet no steps
have been taken till today for removal of the said
unauthorized construction.
MCD will ask the temple authorities to
remove unauthorised constructions within two
weeks. If the unauthorised constructions are not
removed within the said period, effective steps
will be taken by MCD to remove all unauthorized
constructions in accordance with law.
Issue notice to respondent no.6 by
registered A/D and also through approved
courier on the petitioner taking steps within a
week.
Status report will be filed before the next
date.
Renotify on 28.2.2007.
Copy of this order will be given dasti."
3. A Special Leave Petition was filed against the said order. The
Supreme Court was pleased to stay the operation of the order dated
17th January, 2007. On 28th February, 2007,when the matter was
listed before this Court, the counsel for the respondent Union of India
(in short „UOI‟) submitted that the entire construction was
unauthorized in view of Clauses- 5 and 7 of the Lease Deed.
However, as the matter was pending before the Supreme Court, the
case was adjourned. On 16th May, 2008, Civil Appeal No. 4128 of
2008 was disposed of by the Supreme Court observing that since the
order dated 17th January, 2007 was passed without giving an
opportunity of hearing to respondent No. 6, the same could not be
sustained and it was accordingly set aside. The respondent No. 6
made an application for regularization to the Municipal Corporation
of Delhi (in short „MCD‟). When the matter came up before this Court
on 3rd September, 2008, the MCD was directed to place on record its
decision in respect of the application made by respondent No. 6 for
regularization.
4. A status report was filed before this Court by the MCD, wherein
it was stated as under (page 128 of the paper book):-
"1. That on the directions of the Hon‟ble Court
dt. 10.12.2008 the respondent MCD has
considered the application of the respondent
No.6 i.e. the President, Arya Samaj Mandir and
send an Invalid Notice to him vie letter No.
D/AE(B)/KBZ/2008/2041 dt.23.07.08 in which
certain documents/plans were to be filed by the
President, Arya Samaj Mandir but till date no
compliance has been made by the respondent
No. 6. Hence, the application of the respondent
No. 6 has been rejected on 12.01.09 on the
ground of non-compliance of the above
mentioned notice and the rejection letter has
been issued and served by the Competent
Authority of Building Deptt. of Karol Bagh Zone
vide letter No.D/AE(B)/KBZ/09/96 dt. 12.01.09.
Copy of the I/N dt. 23.07.08 and copy of
rejection letter dt. 12.01.09 are annexed
herewith as Annexure-R-1 & II.
2. That respondent MCD has acted according
to the Building Bye Laws which are mandatory
provision mentioned in the DMC Act, 1957 and
nothing has been done with malafide intention."
5. With the status report, the MCD annexed its letter dated 23rd
July, 2008 asking for relevant documents/plans to consider the
application of respondent No. 6 for regularization and letter dated
12th January, 2007, issued by the MCD rejecting the application of
regularization on the ground of non-compliance of MCD notice dated
23rd July, 2008.
6. A counter-affidavit was also filed by respondent Nos. 1 and 2,
UOI and Ministry of Urban Development respectively. The stand of
the UOI is that the construction undertaken by respondent No. 6 is
illegal and unauthorized. The relevant portion of the said counter-
affidavit of UOI is reproduced hereinbelow (page 145 para-3 of the
paper book):-
"3. The Respondent No. 6, Arya Samaj Mandir
Authorities, was asked on 20.01.1968 to submit
the Building Plans for approval and, thereafter, a
reminder was also issued to them on
05.09.1968. The extension of time for the
purpose of construction was granted upto
31.12.1968 vide letter dated 03.09.1968 and
again the period was extended upto 31.03.1969.
The Respondent No. 6 was again asked to
submit the sanctioned building plan vide letter
dated 30.04.1969. The said Respondent has
neither submitted the sanctioned building plans
for approval by the Answering Respondents nor
has the respondent paid the Ground Rent till
date. In this way, the entire construction in
existence at the plots in question, for the reason
of not having been approval by the Answering
Respondents is treated as illegal and
unauthorized. The Respondent No. 6 has been
notified of the said breaches vide letter dated
Arya Samaj Mandir, has completely neglected to
abide by the mandate of law and has not
complied with the lease terms."
7. Thus, as is evident from the discussion hereinabove, both as
per the MCD and the UOI, the construction undertaken by
respondent NO. 6 is illegal and unauthorized. The request for
regularization made by respondent No. 6 to the MCD has been
rejected as the respondent No. 6 failed to comply with the MCD‟s
notice dated 23rd July, 2008 and had not supplied documents and
plans as asked for by the MCD.
8. In view of the discussion hereinabove, the MCD and the
Central Government are directed to initiate action in accordance with
law for removal of unauthorized construction within two weeks. The
MCD and the Central Government are fully within their right to
initiate action in accordance with law, if the construction undertaken
by respondent No. 6 is unauthorized and illegal. The writ petition is
accordingly disposed of in the above stated terms. All the pending
applications also stand disposed of.
CHIEF JUSTICE
NEERAJ KISHAN KAUL, J
May 06, 2009
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