Mahender Kumar Bansal vs Municipal Corporation Of Delhi
2011 Latest Caselaw 5324 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+             W.P.(C) 7831/2011 and CMs 17719-20/2011

                                           Decided on: 03.11.2011
IN THE MATTER OF :
MAHENDER KUMAR BANSAL                         ..... Petitioner
                   Through: Mr. Rajan Sabharwal, Advocate

                    versus


MUNICIPAL CORPORATION OF DELHI                  ..... Respondent
                   Through: Mr. Kapil Dutta, Advocate for
                   Ms. Mansi Gupta, Advocate

CORAM
HON'BLE MS.JUSTICE HIMA KOHLI

     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                          No
        reported in the Digest?


HIMA KOHLI, J. (Oral)

1. The present petition is filed by the petitioner praying inter alia for

directions to the respondent/MCD to decide the application of the

petitioner dated 03.07.2008 for regularization of property bearing

No.988-990 situated at Kucha Pati Ram, Bazar Sita Ram, Delhi.

2. Counsel for the petitioner states that on 24.10.2007, the

respondent/MCD issued a notice under Section 348 of the DMC Act,

declaring the subject premises as dangerous. Thereafter, an application

was submitted to the respondent/MCD for permission to carry out

necessary repairs. In December 2007, the petitioner started repairing

the structure built up on the aforesaid premises. On 28.01.2008, on a

complaint received by it qua the said repairs, the respondent/MCD

directed the petitioner to stop carrying out the repair work. Aggrieved by

the aforesaid action of the respondent/MCD, the petitioner filed a suit for

permanent injunction against the respondent/MCD, seeking to restrain it

from taking any demolition action in respect of the subject premises.

Initially, an interim order was passed in the aforesaid suit proceedings in

favour of the petitioner. However, as the respondent/MCD issued a

demolition order dated 29.02.2008 in respect of the subject premises, the

aforesaid suit was disposed of.

3. On 03.03.2008, a sealing order was passed in respect of the subject

premises. Aggrieved by the aforesaid sealing order as also the demolition

order, the petitioner preferred an appeal before the Appellate Tribunal,

MCD, which was dismissed vide order dated 02.06.2008. On 06.06.2008,

a part of the subject premises was demolished and the remaining portion

was sealed. On 03.07.2008, an application for regularization was

submitted by the petitioner alongwith the rectification plans. The

petitioner also made a request for de-sealing of the subject premises, for

carrying out necessary rectifications, which was allowed by the

respondent/MCD vide order dated 14.11.2008 by granting to the

petitioner, a period of 30 days to carry out rectification as per plan and as

a result, the subject premises was de-sealed on 25.11.2008. However,

the property was again sealed on 07.01.2009, whereupon the petitioner

filed an appeal before the Appellate Tribunal, MCD.

4. The aforesaid appeal filed by the petitioner was dismissed by a

detailed judgment dated 18.10.2011 passed by the Appellate Tribunal,

MCD wherein it was observed that various reports were submitted by the

respondent/MCD to show that the petitioner had failed to complete the

rectification work within the prescribed time as per his own undertaking.

Some of the reports mentioned in the aforesaid judgment are dated

06.07.2010, 25.08.2010, 06.09.2010 and the undated reports were

submitted on 17.09.2010 and 08.10.2010, which as per the Tribunal,

clearly established the petitioner's non-cooperative attitude and wrongful

conduct. The Tribunal observed that vide order dated 16.02.2010, a

further opportunity was granted to the petitioner to remove the excess

coverage/unauthorized construction, whereafter the respondent/MCD was

directed to file a status report. As per the status report dated 07.05.2010

submitted by the respondent/MCD, 10% excess coverage was still left to

be rectified by the petitioner (Annexure P-9).

5. In view of the aforesaid status report , the Appellate Tribunal, MCD

called for a fresh inspection report after a joint inspection was conducted

so as to verify as to whether compliance of the earlier status report dated

07.05.2010 had been done or not. The judgment notes that the petitioner

failed to participate in the joint inspection on one pretext or the other and

failed to carry out the necessary rectification. In these circumstances, it

was felt by the Tribunal that there was no need to grant another

opportunity to the petitioner to carry out the rectification work. Instead,

the respondent/MCD was directed to demolish the remaining unauthorized

construction and non-compoundable deviations at the risk and expense of

the petitioner. Aggrieved by the aforesaid judgment dated 18.10.2011, it

is stated that the petitioner has preferred an appeal before the District

Judge, registered as MCD Appeal No.02/2011, which is pending before the

said forum. However, the interim application accompanying the appeal

has been rejected by an order dated 24.10.2011 (Annexure P-6).

6. Counsel for the petitioner states that the petitioner has not assailed

the aforesaid rejection order in the present proceedings but has sought

directions to the respondent/MCD to decide his application for

regularization dated 03.07.2008.

7. The petitioner cannot be permitted to blow hot and cold in the same

breath. On the one hand, he does not take any steps to remove the

excess coverage/unauthorized construction at the subject premises and

on the other hand, it is his grievance that the respondent/MCD is not

acting on his application for regularization. As noted above, in the course

of the proceedings before the Appellate Tribunal, MCD, the petitioner was

granted an opportunity to carry out the rectification work in respect of the

10% excess coverage left to be rectified as per the report dated

07.05.2011, but he did not comply. Thereafter, yet another opportunity

was granted to the petitioner to carry out the necessary rectification

work, whereafter a joint inspection was ordered to be undertaken but the

petitioner did not participate in the said joint inspection. Now, for the

petitioner to seek to blame the respondent/MCD for proposing to take

coercive action against the subject premises without deciding his

application for regularization cannot cut any ice as the entire blame lies at

the door of the petitioner, who has not taken any step by carrying out the

rectification work, for the respondent/MCD to have processed his

application for regularization as per law.

8. The facts of the case have been extensively discussed in the

judgment dated 18.10.2011, which clearly brings out the fact that despite

repeated opportunities having been granted to the petitioner for carrying

out the remaining rectification work, to enable the respondent/MCD to

consider his pending application for regularization, necessary rectification

work was not carried out by him. The inevitable conclusion is that the

claim of the petitioner that the respondent/MCD is not processing his

application for regularization, is without any basis.

9. In such circumstances, this Court does not find any merit in the

present petition, which appears to be a circuitous route adopted by the

petitioner to assail the rejection order dated 24.10.2011 passed on the

interim application accompanying the appeal preferred by him before the

Appellate Authority against the judgment of the Tribunal. Needless to

state that the observations made hereinabove are limited to the relief

sought by the petitioner in the present proceedings and the learned

District Judge, before whom his appeal against the judgment dated

18.10.2011 is stated to be pending, shall proceed to hear and dispose of

the same as per law, uninfluenced by the present order.

10. The present petition is dismissed being devoid of merits alongwith

the pending applications.

                                                        (HIMA KOHLI)
NOVEMBER      03, 2011                                      JUDGE
rkb