Ravinder Goyal vs Mcd
2011 Latest Caselaw 5663 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+               W.P.(C) 8249/2011 and CMs 18569-70/2011

                                                         Decided on 23.11.2011


IN THE MATTER OF
RAVINDER GOYAL                                                  ..... Petitioner
                             Through:    Mr. Ashish Bhagat, Advocate with
                                         Mr. Abdhesh Chaudhary, Ms. Manisha
                                         Suri, Mr. Dushyanth Arora and
                                         Ms. Geetanjali, Advocates
                     versus

MCD                                                        ..... Respondent

                             Through:    Ms. Shyel Trehan, 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, a tenant of premises

No.H-9, South Extension, Part-I, New Delhi, praying inter alia for setting

aside the vacation notice dated 15.11.2011 issued by the

respondent/MCD under Section 349 of the DMC Act, as also for directions

to the respondent/MCD to regularize the subject premises in terms of the

application for regularization pending at the end of the respondent/MCD.

2. Counsel for the respondent/MCD, who appears on advance copy,

states at the outset that the relief sought in the present petition qua

disposal of the application for regularization is not maintainable inasmuch

as the said issue has been already been agitated by the petitioner before

the Appellate Tribunal, MCD. She draws the attention of this Court to the

order dated 18.11.2011 passed by the Appellate Tribunal, MCD on the

appeal preferred by the petitioner against the vacation notice dated

15.11.2011, which is the subject matter of the present petition (Annexure

P-17). Besides the above, in the appeal, the petitioner had also sought

directions to the respondent/MCD to dispose of his pending application for

regularization of the subject premises. Pertinently, the owners of the

subject premises were not impleaded in the aforesaid appeal. Vide order

dated 18.11.2011, the Appellate Tribunal, MCD held that against a

vacation notice, an appeal was not maintainable before the Appellate

Tribunal, MCD and the same was liable to be dismissed. As regards the

other relief for disposal of the pending application for regularization,

directions were issued by the Appellate Tribunal, MCD to the MCD to

inform the petitioner within three days as to the amount required to be

deposited by him as compounding fee, if the regularization application

was still pending with it. With the aforesaid order, the appeal was

disposed of. It is stated by the counsel for the respondent/MCD that in

view of the aforesaid order, an identical relief with regard to the pending

regularization application could not have been sought by the petitioner in

a second round of litigation initiated within three days from the date of

passing of the aforesaid order by the ATMCD.

3. Counsel for the respondent/MCD further states that apart from the

aforesaid directions issued by the ATMCD, the relief sought by the

petitioner regarding the disposal of the regularization application would

not be maintainable inasmuch as the said application has not been filed

by the petitioner, who is a tenant in the premises, but by the owners of

the premises, who have not been impleaded in the present petition as

well.

4. A perusal of the averments made in the petition reveals that the

petitioner claims that he has himself approached the respondent/MCD for

regularization of the construction on the subject premises. However, the

said submission is not borne out upon a perusal of the application for

regularization enclosed with the writ petition, which shows that it is the

owners and not the petitioner who have submitted a request for

regularization to the respondent/MCD. On a pointed query addressed to

the learned counsel for the petitioner, he concedes that the signatories to

the said letter are actually the owners of the said premises.

5. In view of the fact that the petitioner is not the applicant, who had

filed the application for regularization of the existing construction in the

subject premises before the respondent/MCD, any such relief sought by

him as directions to the respondent/MCD for processing the application for

regularization is not maintainable as it is for the owners, who are the ones

who have filed such an application with the respondent/MCD, to agitate

their grievance against the respondent/MCD by taking appropriate steps

in that regard.

6. There is also merit in the submission made by the counsel for the

respondent/MCD that the Appellate Tribunal, MCD having already issued

directions to the respondent/MCD vide order dated 18.11.2011, the relief

sought at prayer (ii) of the petition is not maintainable and the petition

qua the said relief is liable to be dismissed on this ground alone.

7. As far as vacation notice dated 15.11.2011 is concerned, counsel for

respondent/MCD states on instructions from the Department that the

subject premises is one of the 176 properties situated in South Extension,

in respect of which a Public Interest Litigation (PIL) is pending before the

Division Bench, registered as W.P.(C) 4369/2001 entitled NDSE-I,

Residents Welfare Assoc. Vs. Commissioner M.C.D. & Ors. She states

that in the aforesaid PIL, the Division Bench has been passing orders from

time to time, directing appropriate action to be taken as per law in

respect of the unauthorized construction existing in different premises

located in South Extension. She states that in view of the above, the

present petition ought not to be entertained by this Court and if the

petitioner has any grievance, he ought to have approached the Division

Bench as regards the vacation notice, more so when the aforesaid PIL is

listed as soon as on 25.11.2011.

8. In view of the fact that a Division Bench is seized of the aforesaid

issue in a PIL, which is being monitored by it, judicial discipline demands

that this Court refrains from passing any orders in respect of the subject

premises. As a result, the relief against the vacation notice as sought in

the present petition is declined. However, liberty is granted to the

petitioner to approach the Division Bench for appropriate orders against

the impugned vacation notice. Similarly, it is for the owners of the

subject premises to approach the respondent/MCD directly with a request

to process their applications for regularization of the subject premises or

in the alternative, to approach the appropriate forum for their remedies

against the respondent/MCD for not having processed their application for

regularization of the subject premises till date.

9. The petition is disposed of alongwith the pending applications.

                                                            HIMA KOHLI,J
      NOVEMBER      23, 2011
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