Sudhir Kumar Mehra & Anr vs The Comissioner, Mcd & Anr.
2010 Latest Caselaw 4978 Del

              *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                          Date of decision: 28th October, 2010.

+                           W.P.(C) No.1630/2010
%

SUDHIR KUMAR MEHRA & ANR              ..... PETITIONERS
                Through: Mr. Kanchan Singh, Advocate

                                      Versus

THE COMISSIONER, MCD & ANR.               ..... RESPONDENTS
                 Through: Mr. Sanjeev Sabharwal, Advocate
                           along with Mr. Shabbir Ahmed, AE
                           (B), South Zone, MCD.
                           Mr. C. Mukund with Mr. Ashok Jain,
                           Mr. Pankaj Jain, Mr. Amit Kasera &
                           Ms. Firdos Wani, Advocates for R-2.
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            No.
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petition was filed seeking mandamus against respondent No.1

MCD to remove the unauthorized construction over public land adjacent to

Flat No.D-3/3450, Vasant Kunj, New Delhi. The writ petition came up

before this Court first on 10th March, 2010. In the petition the owner /

occupier of D-3/3450 for demolition of unauthorized construction wherein

the petition was filed, had not been impleaded as a party. On the oral

request of the counsel for the petitioners the said owner was impleaded as

respondent No.2 and amended memo of parties permitted to be filed within

seven days. This court while issuing notice of the petition, directed the

respondent No.1 MCD to ensure compliance of provisions of Delhi

Municipal Corporation Act, 1957 and the Building Bye-Laws and to remove

the encroachments. It was however clarified that the respondent No.1 MCD

in so removing the encroachment will comply with the order dated 20 th

November, 2009 in WP(C) No.13275/2009.

2. WP(C) No.13275/2009 was filed by the owner of D-3/3450 seeking to

restrain the respondent No.1 MCD from demolishing the property. That

writ petition had come up before this Court on 20 th November, 2009 when

the counsel for the respondent No.1 MCD stated that no action for

demolition or otherwise was proposed against the property No.D-3/3450

and; that the owner viz. Smt. Sarupinder Kaur (respondent No.2 herein)

shall be given notice and due process will be followed. That writ petition

was disposed of with the directions that the respondent No.1 MCD shall

ensure that appropriate notice to show cause in accordance with the

provisions of DMC Act is issued to Smt. Sarupinder Kaur and a fair

opportunity of representation be given to her before any coercive or other

action is taken with respect to property No. D-3/3450, Vasant Kunj, New

Delhi.

3. On 27th April, 2010, the counsel for respondent No.2 Smt. Sarupinder

Kaur appeared before this Court and complained that the petitioners had

neither filed any amended memo of parties nor taken any steps for her

service. It was also alleged that the respondent No.1 MCD had on 16th

April, 2010 demolished the property of respondent No.2 in pursuance to the

order dated 10th March, 2010 and in defiance of the order dated 20 th

November, 2009 in WP(C) No.13275/2009; it was further informed that the

respondent No.2 had already filed a contempt case against respondent No.1

MCD in that regard. This Court, on the grievance of respondent No.2 that

the petitioner had not taken any steps for service, thereby depriving her of

knowing that demolition action has been directed against her property,

burdened the petitioners with costs of `5,000/- which are stated to have been

paid. The petitioners were also directed to file an affidavit stating that the

petitioners were not in any kind of dispute with respondent No.2 and that the

present petition had not been filed to settle any score. An affidavit to the

said effect has been filed. It was further directed that the remaining

demolition action with respect to property No.D-3/3450, Vasant Kunj, New

Delhi as well as if any required with respect to the property of the petitioners

be also taken. It is informed that thereafter on 29th April, 2010 demolition

action was taken against the property of the petitioners as well as of

respondent No.2.

4. Respondent No.2 preferred an intra-court appeal being LPA

No.305/2010 against the orders dated 10th March, 2010 & 27th April, 2010 in

this petition. The said LPA was disposed of on 3 rd August, 2010 with liberty

to respondent No.2 to agitate in the writ petition the contentions that

respondent No.1 MCD had neither determined whether the construction in

property No.D-3/3450, Vasant Kunj, New Delhi was unauthorized or not

and whether the respondent No.1 MCD had violated the applicable norms to

proceed for demolition or not.

5. Respondent No.2 has filed CM No.14316/2010 for appointment of a

Local Commissioner. It is stated that the construction by respondent No.2

which has been demolished pursuant to the orders in this petition was the

same as construction in about 50 other houses in the locality. Appointment

of Local Commissioner is sought to verify the said averment. CM

No.14317/2010 has been filed seeking liberty to make and restore the

structure which has been demolished.

6. The counsel for respondent No.2 has today argued on the mala fide of

the petitioners in not serving her with the notice of the petition. However, I

find that part to have been taken care of vide order dated 27 th April, 2010 by

imposition of costs of `5,000/- on the petitioners and it is now no longer

open to respondent No.2 to re-agitate the same.

7. The counsel for respondent No.2 relying on the order aforesaid of the

Division Bench calls upon this Court to adjudicate whether the respondent

No.1 MCD had determined or not that the construction was unauthorized

and whether the respondent No.1 MCD had violated the applicable norms to

proceed for demolition. I however find the same to be not the subject matter

of the present petition. The question whether the directions in the order

dated 29th November, 2009 in WP(C) No.12375/2009 have been complied

with and abided or not is the subject matter of the contempt case which is

pending adjudication. The same cannot also form the subject matter of

decision in the present petition. Insofar as the direction of the Division

Bench on which reliance is placed is concerned, the same merely directs this

Bench to delve upon the said aspects. There is no reference to the contempt

case in the order dated 3rd August, 2010 of the Division Bench. The counsel

for respondent No.2 however contends that the Division Bench was fully

seized of the contempt case also and the file thereof had also been called by

the Division Bench. Even if that be so, what is not the subject matter of this

writ petition has to be held to be so and that would be sufficient compliance

that the directions of the Division Bench and respondent No.2 owing to the

said directions cannot call upon this Bench to decide what is not the subject

matter of this proceeding.

8. The counsel for respondent No.2 has also suggested that independent

of the directions in order dated 20th November, 2009 in WP(C)

No.13275/2009 also, this Court should examine as to whether the

respondent No.1 MCD was entitled to so demolish the construction of Smt.

Sarupinder Kaur. The counsel for the respondent No.1 MCD states that in

the reply in the appeal, all documents showing due compliance of procedure

were filed. I am not inclined to hold any enquiry in this respect. I have

enquired from the counsel for respondent No.2 whether she had obtained

any sanction for making the construction which from the photographs

appears to be of construction of an additional room on public land not even

belonging to the flat of respondent No.2. The answer is in the negative.

Respondent No.2 who has indulged in unauthorized construction and has

violated the laws cannot claim any relief in equity before this Court.

9. The counsel for respondent No.2 lastly says that the policy of pick

and choose ought not to be adopted by the respondent No.1 MCD and

unauthorized construction in a single house / flat ought not to be demolished

when there is rampant unauthorized construction in the other flats / houses

in the locality as well. Reliance in this regard is placed on Nirmala Jain Vs.

Municipal Corporation of Delhi MANU/DE/8934/2006.

10. I have enquired from the counsel as to why respondent No.2 has not

filed an independent writ petition for the demolition of unauthorized

construction in the other houses / flats. There is no reply. The counsel for

the respondent No.1 MCD informs that over 50 notices of unauthorized

construction have been issued in the locality and assures that the houses

pointed out in the application shall also be inspected and if found to be

containing any unauthorized construction, action with respect thereto will be

taken.

11. I am unable to accept the argument of the counsel for respondent No.2

that whenever this Court is approached with complaint of unauthorized

construction in any property, this Court rather than directing removal of

unauthorized construction in that property, should convert the petition into a

Public Interest Litigation and pass directions with respect to the entire

locality. It is found that the Building Bye-Laws are being enforced today

merely by neighbours by filing petitions as the present one and else the

respondent No.1 MCD seems to be unable to check the malady of

unauthorized construction. If a view is to be taken that no directions with

respect to violations in any single property can be issued, it would virtually

bring enforcement through the method of writ petition also to an end.

12. The only other arguments of counsel for respondent No.2 which

remains is of the petitioners having filed a false affidavit before this Court of

there being no disputes between petitioner and respondent No.2. It is stated

that respondent No.2 had filed an FIR against the petitioners and which has

not been disclosed in the affidavit. In that regard liberty is given to

respondent No.2 to take action in accordance with law against the petitioners

for the false affidavit if any field.

13. No further orders are needed in the writ petition. The writ petition is

disposed of as satisfied and the applications of respondent no.2 are

dismissed with liberty to respondent No.2 to take appropriate action for

demolition of unauthorized construction alleged in other houses/flats and to

if entitled to apply to the respondent No.1 MCD for making any additions,

alterations, construction in accordance with law in her flat.

No order as to costs.

Dasti under signature of the Court Master to the counsel for the

parties.

RAJIV SAHAI ENDLAW (JUDGE) 28th October, 2010 'gsr'