Anis Ur Rehman vs Mcd
2012 Latest Caselaw 2998 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                             Date of Judgment:07.5.2012

+                  C.R.P. 259/2004


      ANIS UR REHMAN                           ..... Petitioner
                   Through:               Mr.S.D.Ansari, Adv.

                   versus


      M.C.D.                                    ..... Respondent
                            Through:      Mr.Sudhir Nandrajog, Sr. Adv.
                                          with Mr.Ajay Arora, Adv. for
                                          MCD.
                                          Mr.G.S.Raghav, Adv. for
                                          applicant Mahir Raza,

      CORAM:
      HON'BLE MS. JUSTICE INDERMEET KAUR


      INDERMEET KAUR, J. (Oral)

1. Impugned order is dated 09.1.2004; the order passed by the Civil

Judge dated 29.9.1999 had been set aside and the execution petition

filed by the decree holder stood dismissed. This was on the application

filed by the MCD seeking cancellation of warrants of attachment issued

against it vide order dated 29.01.1999.

2. Record shows that a suit for mandatory injunction had been filed

by Anis-Ur-Rehman against six persons including one Mahir Raza.

3. Plaintiff claims himself to be the owner of the property bearing

No.8163-64. Gali Noor Ahmed Chimni, Bara Hindu Rao Delhi having

purchased it in the year 1985; defendants no.2 and 4 are stated to be the

owners. At the time of their purchase it was a double storey building;

they have now made unauthorized illegal construction and changed the

user of their property; in fact the demolition order

No.140/16/UC/SPZ/88 was passed by the MCD but for the reasons best

to the MCD the same was not implemented. Contention is that this

unauthorized construction was noticed as early as in March 1986; in

spite of demolition order having been passed there is no explanation as

to why the MCD has not taken any action against the said illegal and

unauthorized construction; it is because the MCD is hands in glove with

the private persons. Mandatory injunction directing him to demolish

the unauthorized it is construction has been prayed.

4. This suit was decreed on 13.11.1992. Appeal was filed against

the said judgment which was allowed by the impugned judgment dated

09.01.2003.

5. Record shows that decree had been passed on 13.11.1992

directing the MCD to demolish the unauthorized construction. The

impugned order had noted that because of certain subsequent facts

which had come to the notice of the court the decree passed by the Civil

Court dated 13.11.1992 was unexecutable; the finding of facts in the

impugned order were to the effect that AT(MCD) had directed the MCD

to consider the case of the petitioner afresh on the demolition order

which had been passed in 1988; because of these intervening

circumstances the MCD had in fact dropped the proceedings against the

defendant on 23.10.1998.

6. To elucidate upon the controversy this Court had directed the

MCD to file an affidavit before this Court; an affidavit of Manoj Kumar

Nijhawan, Executive Engineer, MCD is on record; it states that the

demolition order passed qua this property on 27.6.1988 was appealed

before the AT(MCD) which was quashed on 22.01.1993. A fresh

demolition order was passed by the Competent Authority on 27.7.1995

against which appeal was also allowed by AT (MCD) on 18.12.1997 in

which matter was remanded back and the Competent Authority dropped

the proceedings. Record further shows that Writ Petition

No.12266/2009 had been filed by the present petitioner Anis-Ur-

Rehman where Mahir Raza was also a party; on 22.7.2010 a Division

Bench of this Court had noted that the parties had reconciled the

disputes; both, petitioner Anis-ur-Rehman and Mahir Raza had agreed

to withdraw all complaints and litigations. Court had noted that the

aforenoted settlement has been accepted by both the parties and the

parties had agreed to make withdrawal of all interse dispute between the

parties and this was to give a quietus to the war between them.

Admittedly at the time when this order dated 22.7.2010 was passed the

present litigation was pending. A query has been put to the learned

counsel for the petitioner as to why this present petition has not been

withdrawn; he has no answer. Admittedly the order passed on 22.7.2010

in Writ Petition No.12266/2009 was to bring an end to the interse

disputes raging between Anis-ur-Rehman and Mahir Raza; that is why

their undertaking to withdraw interse litigations had been accepted;

today also the same parties are litigating before this Court and there is

no answer as to why this present litigation is being continuously

pursued. After some persuasion learned counsel for the petitioner points

out that this undertaking cannot be honoured as the unauthorized

construction raised by the defendant has led to the closure of his light

and air; impugned order dismissing the execution petition suffers from

an infirmity; the order of the trial court decreeing the suit for mandatory

injunction did not call for any interference.

7. As pointed out earlier, apart from the aforenoted facts the MCD

has also filed on record the subsequent developments which had taken

place between the parties which were to the effect that two demolition

orders passed in 1988 and 1995 had been set aside by the AT (MCD).

Since the matter was remanded back to the Competent Authority (MCD)

that thought it a fit case for dropping the proceedings against the

defendant. On affidavit the MCD has also stated that admittedly this

construction is prior to the year 1985 and in all construction prior to the

year 1985 there is a moratorium period up to December 2014; up to

which period of time the MCD cannot take action against the property.

This factum is not disputed. That apart Division Bench of this on

22.7.2010 had noted that Ani-ur-Rehman had undertaken to withdraw

all pending litigations which also included the present one. His

submission that a Single Bench of this Court had dismissed the

contempt petition filed by the respondent on this count on 13.12.2010 is

not quite correct. On 13.12.2010 a Bench of this Court had disposed of

the contempt petition on the statement made by the Ani-Ur-Rehman that

he would withdraw the suit pending before the trial court which suit has

since admittedly be withdrawn. The present proceedings were not the

subject matter of the contempt petition. In this background on all

accounts the impugned order does not suffer from any infirmity and

does not call for any interference by this court as there is no illegality or

perversity pointed out in the impugned order. Petition is without any

merit. Dismissed.

                                               INDERMEET KAUR, J

MAY       07, 2012
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