Delhi High Court
Mrs. Kamla Rani vs Municipal Corporation Of Delhi & ... on 4 October, 2010
Author: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 4th October, 2010.
+ W.P.(C) No.5126/2008
%
MRS. KAMLA RANI ..... PETITIONERS
Through: Mr. Neeraj Jain & Mr. Kalyan Dutt,
Advocates
Versus
MUNICIPAL CORPORATION OF DELHI & ORS... RESPONDENTS
Through: Mr. Mukesh Gupta, Advocate with
Mr. Sumit Gupta & Mr. Mahipal
Singh, Advocates
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may No.
be allowed to see the judgment?
2. To be referred to the reporter or not? No.
3. Whether the judgment should be reported
in the Digest? No.
RAJIV SAHAI ENDLAW, J.
1. The petitioner, claiming to be the owner of Flat No.H-307, DDA Flats
MIG, Naraina Vihar, New Delhi, has filed this petition seeking direction to
the respondent No.1 MCD to demolish the illegal construction raised by the
respondents 3 & 4 in neighbouring Flat No.H-297 (Ground Floor) & Flat
No.H-300 (First Floor). The petition came up before this Court first on 21st
July, 2008 when notice was issued. On 31st July, 2008, it was noticed that as
per the Status Report filed by the respondent No.1 MCD, the respondent
No.1 MCD had sanctioned plans for carrying out additions and alterations in
the said flats on 4th July, 2008; the Status Report also reported that the said
two flats were inspected on 21st July, 2008 and the construction was found to
have been completed as per the sanctioned plan. The respondent No.1 MCD
has since filed a counter affidavit reiterating the said position. The
respondent No.4 has also filed an affidavit to the same effect. On 9 th
February, 2010, the respondent No.1 MCD was directed to file an additional
affidavit indicating whether the construction undertaken was within the
internal courtyard or on the public land. The respondent No.1 MCD has
filed an additional affidavit stating that only the internal courtyard had been
covered after getting the sanction. It was further stated that no
encroachment outside the flats had been made.
2. None has appeared for the respondents 3&4 today. None has been
appearing for them for the last few dates also. The counsel for the petitioner
and the counsel for the respondent No.1 MCD have been heard.
3. The subject DDA Flats comprise of Ground, First, Second & Third
Floor with a common staircase between the two Blocks of four floors each.
The admitted position is that the flats of the respondents 3 & 4 are on the
Ground and First Floor of one such Block of four floors and the flat of the
petitioner is on the Third Floor of the Block having a common staircase with
the Block of the respondents 3 & 4. The additional construction is in the
nature of construction of an additional room covering part of the open space
in front of the flat of the respondent No.3. The respondent No.4 has raised
construction on the First Floor above the additional construction of the
respondent No.3 on the Ground Floor. The petitioner contends that such
additional construction also interferes with the light and air to her flat,
particularly to balcony thereof.
4. The sanction for the said additional construction is stated to have been
granted in accordance with the Office Order dated 13 th August, 2003. The
counsel for the petitioner however contends that the terms and conditions on
which sanction could have been granted under the said Office Order have
not been complied with. The counsel for the respondent No.1 MCD
responds by contending that the grievance, if any, against the sanction
accorded is to be agitated in appeal before the Appellate Tribunal, MCD and
not by way of present petition which was concerned only with demolition of
unauthorized construction.
5. The counsel for the petitioner further contends that the respondent
No.1 MCD sanctioned the construction on 4th July, 2008 notwithstanding the
complaints by the petitioner since April, 2008. It is stated even as per the
Office Order dated 13th August, 2003, the sanction could not have been
accorded without the consent of the petitioner who shares the same staircase.
6. However, I find merit in the contention of the counsel for the
respondent No.1 MCD that the present petition was concerned only with
demolition of the unauthorized construction; now that it has transpired that
the construction to which objection is taken by the petitioner has been
sanctioned, the remedy of the petitioner is by way of the challenge to the
sanction accorded by the respondent No.1 MCD. The counsel for the
petitioner expresses apprehension on account of limitation. However, the
same can be taken care of by providing that subject to the appeal being filed
within 15 days hereof, the same shall be entertained without objection as to
limitation.
7. The counsel for the petitioner has next invited attention to the
photographs filed along with the rejoinder. From the same photographs, it is
pointed out that even from the disputed construction, projections in the
forms of shades / beams protrude in common passage. It is also shown that
the respondent no.3 has raised a platform in front of the disputed
construction, thereby reducing the width of the passage to the flat of the
petitioner.
8. The counsel for the respondent no.1 MCD agrees that the projections
and the raised platform are unauthorized and states that the same shall be
demolished within four weeks.
9. The petition is therefore disposed of with liberty to the petitioner to
prefer the appeal against the order of sanction as aforesaid and with a
direction to the respondent no.1 MCD to remove the projections, raised
platform and other unauthorized construction, if any, beyond the sanctioned
plan in the flats of the respondents 3 & 4 within four weeks failing which the
concerned Executive Engineer shall be personally liable for violation of the
orders of the Court.
No order as to costs.
RAJIV SAHAI ENDLAW
(JUDGE)
4th October, 2010
'gsr'
