Shri Sanjay Chawla & Others vs Municipal Corporation Of Delhi
2010 Latest Caselaw 686 Del

R-26
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+     W.P.(C) 7439/2000
                                    Date of decision: 08th February, 2010.

      SHRI SANJAY CHAWLA & ORS.                .... Petitioners
                       Through  Mr. Abhisekh Singh and Mr.
                                Sarvesh Singh, Advocates.
                 versus

      MCD                                     ..... Respondent
                          Through     Ms. Amita Gupta, Adv.

      CORAM:
      HON'BLE MR. JUSTICE SANJIV KHANNA

                          ORDER

1. Order of the Estate Officer dated 16th November, 2000 under Section 5B(1) of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (hereinafter referred to as the Act), which has been upheld by the learned Additional District Judge by his order dated 4th December, 2000 have been challenged.

2. Estate Officer has observed that the petitioners herein, as per the

report of Survey Branch (Slum) dated 3rd November, 1999 are running 9

shops and a school in and around quarter No. C-84, Jhilmil Colony,

Shahdra, Delhi and have unauthorizidely occupied adjoining lands

measuring 572.90 sq. meters. By order dated 16th November, 2000, the

W.P.(C) 7439/2000 Page 1 petitioners were directed to remove building and immovable

structure/fixtures within 15 days. It was further directed that the

petitioner will pay Rs. 16,00,686/- as costs of removal of the said

building and immovable structure/fixture. The said order has been

upheld by the Additional District Judge, who has observed that costs of

Rs. 16,00,686/- has been imposed on account of removal of structure

and fixture and no order for damages for unauthorized occupation has

been passed. The aforesaid observation was made in view of the

contention of the petitioners that no notice under Section 7 of the Act

was issued to the petitioners.

3. By order dated 7th December, 2000, this Court had issued notice

after noticing that an application filed by the petitioners for

regularization was pending. The petitioners were directed to deposit Rs.

5,00,000/- in two installments. It is stated that a sum of Rs. 5,00,000/-

has been deposited in the Registry of this Court in terms of the order

passed. Thereafter, vide order dated 23rd July, 2001, Rule was issued.

4. Counsel for the petitioners was asked to obtain instructions

whether the petitioners were ready and willing to shift the school and

W.P.(C) 7439/2000 Page 2 also close the shops. Counsel for the petitioner on instructions states

that they are ready and willing to shift the school, but require time up to

31st May, 2010. It is stated that the school has been functioning for the

last 15 years and is a recognized school up to class VIIIth. It is further

stated that about 200 students are studying in the school. With regard to

the 9 shops, counsel for the petitioners is unable to make any statement

and in fact states that third party rights may come into existence.

5. The petitioners have filed on record conveyance deed dated 2nd

February, 2000 in respect of flat No. C-84, Jhilmil Colony Scheme for

transfer of constructed structure with sanitary and electrical fittings. The

petitioners have placed on record perpetual lease deed dated 2nd

February, 2000 in respect of 57.50 sq. yards of land. The petitioners

cannot occupy government land or claim any right beyond what is

conveyed to them under the conveyance deed and the perpetual lease

deed both dated 2nd February, 2000. The respondent, MCD, therefore,

are entitled to remove encroachment on their land. The petitioners

cannot object to or contest the right of the respondent-MCD. The

respondent-MCD may not have even initiated proceedings under the

W.P.(C) 7439/2000 Page 3 Act. MCD have the power to remove encroachment from public land and

ensure that public land is not unauthorizedly and illegally occupied by

third persons. In fact, it is the duty of the respondent-MCD to ensure

that public land is not occupied unauthorizedly and encroached upon.

Thus the petitioner cannot object and claim that they are entitled to

remain in occupation of MCD land and their possession should be

protected. Further the petitioners cannot and should not be shown

indulgence under the discretion jurisdiction conferred under Articles 226

and 227 of the Constitution of India. Direction to remove unauthorized

construction is also justified and in accordance with law.

6. The statement made by the counsel for the petitioners that they

should be temporarily allowed to continue the school till 31st May, 2010,

is accepted, subject to the condition that the school will run and operate

within the premises allotted to the petitioners under the conveyance

deed and perpetual lease deed both dated 2nd February, 2000 i.e. flat

No. C-84, Jhilmil Colony Scheme and area of 57.50 sq. yards. This

indulgence is being shown in view of the fact that the petitioners have

been enjoying benefit of stay order passed on 7th December, 2000 and it

W.P.(C) 7439/2000 Page 4 is pointed out that about 200 students are studying in the school, which

is being running from the premises and any immediate closure order will

have adverse consequences on future of these students. It is made clear

that no further extension of time will be granted to the petitioners to

shift.

7. The respondent-MCD are entitled to take action as per law with

regard to the 9 shops constructed in the premises and in terms of the

order passed under the Act. In case permission/approval in respect of

the said shops has been obtained from the MCD or local authorities, the

said aspect will be kept in mind by the respondent-MCD before taking

any action.

8. The petitioners should remove all unauthorized construction in

flat No. C-84, Jhilmil Colony Scheme and plot measuring 57.50 sq. yards

allotted to them under perpetual lease deed dated 2nd February, 2000

and unauthorised construction and encroachment on public land within

four weeks. Thereafter, the respondent-MCD will be at liberty to take

action in accordance with law. In case the petitioners carry out the said

demolition and remove all unauthorized construction and encroachment

W.P.(C) 7439/2000 Page 5 amount of Rs. 5,00,000/- deposited by them in this Court will be

released to the petitioners on or after 31st May, 2010 on their complying

with the directions given above. If demolition and encroachments are

not removed within four weeks, the respondent-MCD will be also

entitled to claim, in terms of the impugned orders, additional payment

for demolition of unauthorized construction in the flat No. C-84, Jhilmil

Colony Scheme and plot measuring 57.50 sq. yards allotted to the

petitioners under perpetual lease deed dated 2nd February, 2000 or

encroachment from public land etc. The total amount, however, will not

exceed Rs. 16,00,686/- awarded by the Estate Officer. In case, any

further or additional expenses are incurred by the respondent, MCD,

they shall be entitled to initiate recovery proceedings for the said

amount under the Act. The Writ Petition is accordingly disposed of.

DASTI

SANJIV KHANNA, J.

      FEBRUARY 08, 2010
      NA/P




W.P.(C) 7439/2000                                                  Page 6