Major Kishore Singh vs Govt Of Nct & Ors
2012 Latest Caselaw 1150 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                 W.P.(C) 6503/2010

                                     Date of Decision:21st February, 2012
      IN THE MATTER OF:
      MAJOR KISHORE SINGH                        ..... Petitioner
                    Through: Mr. Manoj V.George, Advocate with
                    Ms. Shilpa M. George and Mr. K. Gireesh Kumar,
                    Advocates alongwith petitioner in person.

               versus
      GOVT OF NCT & ORS                            ..... Respondents

Through: Mr. M.M. Kalra, Advocate with Mr. Kunal Kalra, Advocate for R-2/IOCL.

Mr. Kapil Dutta, Advocate for R-3MCD.

Ms. Mamta Tandon, Advocate for Mr. V.K.

Tandon, Advocate and Mohd. Noorullah, Advocate for Mr. Anjum Javed, Advocate for R-

4/Delhi Police with SI Vijender Kumar, PS:

Kapashera.

CORAM:

HON'BLE MS. JUSTICE HIMA KOHLI

HIMA KOHLI, J (Oral)

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

directions to respondent No.2/IOCL and respondent No.3/MCD to initiate

sealing and demolition action against properties situated on the

approach road to the Bijwasan Terminal being operated by respondent

No.2/IOCL. The petitioner has also prayed for costs and damages to be

imposed on the respondents for the purported illegal action of

demolishing his dwelling unit, i.e., House No.1, Major Saab Niwas, Saini

Mohalla, Bijwasan, New Delhi, on the ground that his premises was

singled out and that too when demarcation proceedings were underway.

2. Notice was issued on the present petition vide order dated

24.09.2010 and it was directed that status quo be maintained by the

parties with regard to the property of the petitioner. On 02.08.2011, a

counter affidavit was filed by respondent No.2/IOCL, wherein, it was

stated that the terminal in question had been constructed by respondent

No.2/IOCL after the acquisition of the land and the same had been

placed at its disposal and further that sufficient land had been acquired

outside the boundary wall of the Bijwasan terminal to build a private

road, which connects to the main Najafgarh Road. It is averred by

respondent No.2/IOCL that since the year 2005, there has been a

systematic encroachment on both sides of the approach road by the

villagers/residents of the area and the petitioner herein is one such

encroacher.

3. Pertinently, till date, rejoinder has not been filed by the petitioner

to the aforesaid counter affidavit. Further, despite the order dated

02.08.2011, whereunder last opportunity of four weeks was granted to

respondent No.3/MCD to file its counter affidavit subject to payment of

costs of `5,000/- payable to the petitioner, the same has not been filed.

Instead, counsel for respondent No.3/MCD states that the affidavit is

ready and he hands over an advance copy thereof to the counsel for the

petitioner along with the costs. The said counter affidavit is taken on

record.

4. A perusal of the counter affidavit filed by respondent No.3/MCD

shows that MCD had initiated action against the unauthorized

construction carried out in plot No.1, Khasra No.32/25, near IOC Road,

village Bijwasan, Saini Mohalla, New Delhi, by booking the same on

12.01.2010. On the same date, notice to show cause was issued to the

owner/occupier of the property in question and as the notice was

refused, the same was pasted at site. MCD did not receive a reply to

the notice to show cause. The petitioner refused to receive the

demolition notice dated 20.01.2010 as well. As a result, on 29.01.2010,

a demolition order was passed. Finally, demolition action was

undertaken by MCD on 15.02.2010. It is submitted that in the course of

the demolition action, three shops were demolished with the help of the

local police. However, no demolition was undertaken against the old

construction, which was protected under the National Capital Territory of

Delhi Laws (Special Provisions) Act.

5. Further, counsel for respondent No.3/MCD states that the

petitioner had constructed ground and first floors on the subject plot

without obtaining any permission/sanction building plan from the

respondent No.3/MCD. This fact is not denied by the counsel for the

petitioner. In the teeth of the aforesaid admission, the claim of the

petitioner that the action of demolition undertaken by respondent

No.3/MCD is illegal qua his plot of land is unsustainable, as is his claim

for damages and costs for the purported illegal demolition action. It is

also conceded that till date, the petitioner has not taken any action to

challenge the purported illegal demolition order passed by respondent

No.3/MCD. As a result, the reliefs sought by the petitioner in prayers

No. (i) and (iv) are held to be devoid of merits and are turned down.

6. As regards the grievance of the petitioner that his property has

been singled out, whereas, there are other similarly situated properties

in the same area, which have not been meted out the same treatment

as the petitioner's property has been meted out, counsel for respondent

No.3/MCD draws the attention of this Court to para 7 of the counter

affidavit, wherein it is stated that the property belonging to one Shri

Samundar Singh situated at a distance of 70 meters from the

petitioner's property had been demolished by the MCD between

February and March 2010.

7. Learned counsel also draws the attention of this Court to the

documents placed by the petitioner at pages 59-60 annexed to the writ

petition which form a part of the documents furnished to the petitioner

in reply to his Appeal No.204 preferred by him under the RTI Act, to

submit that the MCD had undertaken demolition/sealing actions in the

months of February-April in respect of 55 properties situated at Saini

Mohalla, Bijwasan, New Delhi.

8. Counsel for respondent No.3/MCD submits that if the petitioner is

dissatisfied with the aforesaid response and believes that there are

other encroachments on public land which are required to be removed,

he may point out the same to respondent No.3/MCD and appropriate

action shall be initiated thereon, subject to the condition that they are

not protected under the Special Provisions Act or any orders passed by

any court. The aforesaid suggestion is acceptable to the counsel for the

petitioner.

9. In view of the aforesaid position, the present petition is disposed

of with liberty granted to the petitioner to intimate respondent

No.3/MCD about the details of the encroachment by way of built up

structures on/alongside the approach road to the Bijwasan Terminal

within a period of two weeks from today. Upon receiving such

information, respondent No.3/MCD shall carry out an inspection of the

area and take appropriate action for clearing the said encroachment on

public land and/or unauthorized construction, if the same is not

protected under the Special Provisions Act or by any stay orders. The

action taken shall be duly intimated by the respondent/MCD to the

petitioner in writing within a reasonable time from the date of

undertaking demolition/removal action.

                                                     (HIMA KOHLI)
FEBRUARY 21, 2012                                       JUDGE
rkb /anb/sk