Nand Kishore And Ors vs Mcd And Anr
2012 Latest Caselaw 266 Del

*         IN THE HIGH COURT OF DELHI AT NEW DELHI

+            W.P.(C) No.83/2012 and C.M. No.186/2012

                                                 Decided on : 13.01.2012

IN THE MATTER OF
NAND KISHORE AND ORS                              ..... Petitioners
                              Through : Mr. Upamanyu Hazarika, Sr. Adv.
                              with Mr. Jayant Mohan and
                              Mr. Nitin Loud, Advs.

                     versus


MCD AND ANR                                       ..... Respondents
                              Through : Ms. Suparna Srivastava, Adv.
                              for MCD.

CORAM
HON'BLE MS.JUSTICE HIMA KOHLI


HIMA KOHLI, J. (ORAL)

1. The present petition is filed by the petitioners praying inter

alia for quashing and setting aside the order dated 30.12.2011 passed by

the Deputy Commissioner, Land & Estate Department, MCD, whereunder

they have been called upon to immediately vacate the subject land

situated at Pushpa Market, Lajpat Nagar, Delhi, and to handover peaceful

possession thereof to the respondent/MCD within a period of three days

from the date of issuance of the aforesaid order, with a further warning

issued to them that in case they fail to do so, the respondent/MCD shall

retrieve the said piece of land from them.

2. On the last date of hearing, counsel for the respondents/MCD

had drawn the attention of this Court to an order passed by a Division

Bench of this Court in an earlier round of litigation between the petitioners

and the respondent/MCD in two connected appeals, registered as LPAs

No.171-172/2010 entitled "Nand Kishore & Ors. vs. Municipal

Corporation of Delhi & Ors." disposing of the appeals vide order dated

07.07.2010 on the following terms :-

"12. In view of the aforesaid analysis, while declining to interfere with the order of the learned Single Judge, we clarify that the show cause shall be treated as a show cause for all purposes and it should be taken as a proposed action to be taken by the MCD and the appellants would be at liberty to file their explanation on all aspects including the aspect that they had constructed the building by spending considerable sum of money which comes within the realm of equity. The reply to the show cause be filed within a period of eight weeks from today by putting forth all possible grounds and the competent authority of the Corporation shall take a decision after affording an opportunity of hearing to all the appellants or their authorized representatives, as conceded to by Mr. Phoolka, within a period of four months. We are sure that the MCD authorities shall keep in view the principles of objectivity, equity, fairness and transparency. If the appellants ask for any document, as agreed to by Mr. Phoolka, the same shall be provided to the appellants or their authorized representatives to substantiate their claim before the corporation. As a further protective measure, it is directed that in case the appellants are aggrieved by the order passed by the corporation, they can challenge the same before the superior forum and, therefore, the corporation shall not give effect to the order, if any, which is adverse to the appellants, for a period of four months from the date of its pronouncement."

3. Learned Senior Advocate appearing for the petitioners states

that despite the aforesaid protective measures put in place by the Division

Bench, whereunder the respondent/MCD was directed to ensure that in

case any adverse order was to be passed against the appellants,

petitioners herein, the same would not be given effect for a period of four

months from the date of its pronouncement, respondent/MCD instead, by

virtue of the impugned order, has given less than three days to the

petitioners to handover vacant and peaceful possession of the land in

question.

4. Counsel for the respondent/MCD states that she has obtained

instructions from the department to the effect that the Department shall

carry out an inspection of the area in question within a period of four

weeks and a report shall be prepared in that regard, whereafter, in case

the respondent/MCD proposes to take any action in respect of the subject

land, notice to show cause shall be issued to the petitioners, and they

shall be granted an opportunity of personal hearing. Thereafter,

appropriate decision shall be taken by the competent authority of the

respondent/MCD as per law.

5. In view of the aforesaid statement made by the counsel for

the respondent/MCD, the present writ petition is disposed of, while setting

aside the impugned order dated 30.12.2011. It is directed that the

decision that may be taken by the competent authority of the

respondent/MCD after granting a hearing to the petitioners, shall be

intimated to them at their addresses as given in the memo of parties. It

is further directed that in case the order that may be passed by the

competent authority of the respondent/MCD is adverse to the petitioners,

the same shall not be given effect for a period of three weeks from the

date of passing thereof. Further, if the said order is adverse to the

petitioners and they are aggrieved therefrom, they shall be entitled to

seek their remedies as per law.

6. The petition is disposed of, along with the pending application.

A copy of this order be given dasti to the counsel for the

respondent/MCD.

                                                      HIMA KOHLI,J
      JANUARY    13, 2012
      sk