M/S Mehrasons Jewellers Pvt. Ltd. vs Municipal Corporation Of Delhi
2010 Latest Caselaw 4446 Del

              *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                         Date of decision: 21st September, 2010.

+                  W.P.(C) No.6390/2010 & CM No.12650/2010 (for stay)

%

         M/S MEHRASONS JEWELLERS PVT. LTD.                            ..... Petitioner
                     Through: Mr. Kirti Uppal, Adv.

                                    Versus

         MUNICIPAL CORPORATION OF DELHI        ..... Respondent
                             Through: Mr. Ajay Arora & Mr.
                             Kapil Dutta, Advocates for MCD.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?                        No

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 petitioner by this writ petition impugns the order dated 13 th

September, 2010 of the respondent MCD with respect to the unauthorized

construction in Property No.2, Ajmal Khan Road, Karol Bagh, New Delhi.

2. The petitioner in the writ petition itself admits that it is only one of the

owners of the said property; the other owner of the property has instituted a

suit in the Court of the Civil Judge, Delhi against the petitioner and the

MCD for direction to the MCD to stop the alleged unauthorized construction

undertaken by the petitioner in its portion of the property and to take action

with respect thereto. The petitioner has not made the said other co-owner as

a party to the writ petition. The counsel for the respondent MCD appearing

on advance notice informs that vide order dated 6 th September, 2010 in the

said suit, the MCD has been directed to file an action taken report in the

Civil Court on 6th October, 2010. It is contended that the petitioner has

concealed the said order. The counsel for the respondent MCD further

contends that the remedy, if any of the petitioner is by way of appeal before

the Appellate Tribunal, MCD and not by way of this writ petition.

3. The counsel for the petitioner has urged that deviations made in the

property are compoundable under Appendix-Q of the Building Bye-laws,

1983 and the petitioner has been repeatedly applying to the respondent

MCD for compounding but without considering which requests, the order

for demolition has been made. He states that the petitioner is seeking a

direction to the respondent MCD to before taking action of demolition,

process the application of the petitioner for compounding of compoundable

deviations. He on behalf of the petitioner states that to obviate any

controversy the petitioner till then will not carry out work of any nature

whatsoever in the premises be it those which are permissible under Bye-Law

6.4.1.

4. I am of the opinion that since the Civil Court is already seized of the

matter, it will not be appropriate for this Court to entertain this writ petition

(even if the other co-owner is to be made party hereto) entailing inter alia

the same controversy as before the Civil Court in the suit filed by the other

co-owner. There is also merit in the contention of the counsel for the

respondent MCD that against the demolition order, the remedy of the

petitioner is by way of appeal before the Appellate Tribunal, MCD.

5. The counsel for the petitioner has however expressed apprehension

that his relief, for consideration of the application for compounding first

may not be within the jurisdiction of the Civil Court or the Appellate

Tribunal, MCD.

6. So far as the Appellate Tribunal, MCD is concerned, the counsel for

the respondent MCD states that it is always open to the appellant before the

Appellate Tribunal, MCD to state that the compoundable deviations, if any

be compounded and that the remaining unauthorized construction, if any

shall be removed/demolished. He however, states that compounding under

Appendix-Q has been held in Friends Colony Development Committee Vs.

State of Orissa AIR 2005 SC 1 to be not as a matter of right.

7. I am of the opinion that it is always open to the petitioner who is the

defendant in the civil suit aforesaid, to approach the Civil Court also in this

regard. It has been held by this Court in Delhi Automobiles Ltd. Vs.

Economy Sales MANU/DE/0380/1994 that even a defendant in a suit is

entitled to move an application of such a nature.

8. I have also found that though the petitioner in his letters to the

respondent MCD has been calling upon the MCD to decide on his request

under Appendix-Q but has not submitted any application with site plans

showing the position of construction as existing earlier and as existing now.

In the absence of site plan being submitted, the respondent MCD cannot be

expected to decide the application for compounding. The counsel for the

petitioner states that the petitioner has been calling upon the respondent

MCD to give a copy of the sanctioned plan but the same has not been

supplied. In the opinion of this Court, without waiting for the sanctioned

plan, the petitioner should submit the plan as aforesaid to the MCD and

without which no Court/Fora would be in a position to entertain the request

of the petitioner.

9. The writ petition is therefore dismissed as not maintainable with

liberty to the petitioner to challenge the order of demolition before the

Appellate Tribunal, MCD and to if he feels the need also make requisite

application in the Civil Suit filed by the co-owner and which application if

filed, shall be decided in accordance with law and the observations

hereinabove contained.

No order as to costs.

Copy of this order be given Dasti.

RAJIV SAHAI ENDLAW (JUDGE) 21st September, 2010/bs