Delhi High Court
Delhi Cantonment Board vs Sh. D.P. Mittal on 12 December, 2011
Author: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 12th December, 2011.
+ LPA 812/2011
% DELHI CANTONMENT BOARD .......Appellant
Through: Mr. R. Nanavaty, Adv.
Versus
SH. D.P. MITTAL ..... Respondent
Through: Mr. Raman Gandhi, Adv.
CORAM :-
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
JUDGMENT
RAJIV SAHAI ENDLAW, J.
1. The appellant impugns the order dated 01.08.2011 of the learned
Single Judge in W.P.(C) No.3759/2008 preferred by the respondent, insofar
as the same proceeds on the premise that the Ground and the First Floors of
house No.1/201/1, Sadar Bazar, Delhi stand regularized. Notice of the
appeal was issued and the operation of the order dated 01.08.2011 of the
learned Single Judge stayed. The counsels have been heard.
2. The writ petition aforesaid was preferred by the respondent
impugning the order dated 11.03.2008 of the learned Additional District
Judge dismissing the appeal preferred by the respondent against the order
dated 17.03.2006 of the Estate Officer of the appellant directing demolition
of the entire structure of the aforesaid property as unauthorized. It was inter
alia the contention of the counsel for the appellant before the learned Single
Judge that, the respondent claimed to have bought the said property through
Sale Deed dated 20.11.2000; that in the said Sale Deed also, the property
was described as comprising of a ground and first floors with roof rights
only; that the admitted position was that the property then consisted of
ground, first & second floors and mumti thereabove. It was thus contended
by the counsel for the appellant before the learned Single Judge that the
second floor and the mumti, as per the documents of the respondent also, had
been constructed after the Sale Deed dated 20.11.2000 without obtaining any
sanction / permission and were unauthorized and the respondent had falsely
pleaded in the writ petition that the property was in the same state as at the
time of purchase.
3. On the basis of the aforesaid contention of the counsel for the
respondent, the learned Single Judge disposed of the writ petition by giving
liberty to the respondent to approach the appellant for regularization of the
second floor and the mumti and with further direction to the appellant to take
a decision thereon in accordance with law; the appellant was also directed to
de-seal the ground and the first floors of the property.
4. It is the contention of the counsel for the appellant that the stand
aforesaid of the appellant could not have been construed as the appellant
conceding to the ground and the first floors of the property being authorized;
that merely because the falsity of the case set up by the respondent was
pointed out, did not amount to any concession being made with respect to
the ground and the first floors; that in fact the entire structure is unauthorized
and the order of the Estate Officer upheld in the appeal, for demolition of the
entire structure ought to have upheld.
5. The counsel for the respondent, before us has contended that, the
property aforesaid is part of Khasra/Survey No.49/48; that no records
whatsoever are available with the appellant also with respect to the
construction on the said Khasra; that the entire Khasra is now built up; that
the construction of the property aforesaid was raised as far back as in 1960's
and the respondent being a subsequent purchaser does not have the records
available with him; that it has been mistakenly mentioned in the Sale Deed
that at the time of execution thereof, the property comprised of ground and
first floors only when even then it comprised of ground, first, second and
mumti floors; that the appellant has been indulging in the policy of pick and
choose and has been selectively taking demolition action with respect to
some of the properties only in the Khasra/Survey No.49/48 while not taking
any action against other properties; that such action of the appellant is
arbitrary; that when the appellant itself is not in possession of any records as
to the extent of construction, the order of demolition of the entire structure
on the property is bad.
6. We are of the opinion that since as of today there is no record of the
state / extent of construction and further since the learned Single Judge also
has given liberty to the respondent to apply for regularization of the second
and the mumti floors and which direction has not been challenged by the
respondent, it is expedient that the case of the respondent for regularization
of the entire structure including the ground as well as the first floors be
considered in accordance with the building bye-laws etc. in force. While
considering the said case for regularization, the appellant shall also have
regard to the entire neighbourhood being constructed, the action taken with
respect to other similarly situated properties; non availability of records with
the appellant itself of the status of the property.
7. We accordingly dispose of the appeal by modifying the order of the
learned Single Judge, by granting liberty to the respondent to apply for
regularization of the entire property. The said application be made within
three weeks of today and a decision thereon after granting hearing the
respondent be taken within 12 weeks thereof. Upon such decision being
taken, opportunity be granted to the appellant to remove the portions if any
which are not regularized and upon failure of the respondent to remove the
said portions, the appellant shall be entitled to take demolition action with
respect to the said portions only. The appellant while deciding the said
application for regularization to have regard to the facts aforesaid and to
record as to what action has been taken or is proposed with respect to the
other similarly situated properties, if any. The property to remain sealed till
the decision aforesaid.
No order as to costs.
RAJIV SAHAI ENDLAW, J
ACTING CHIEF JUSTICE
DECEMBER 12, 2011
'gsr'
