Vimla Sharma vs M.C.D. & Ors.
2012 Latest Caselaw 3006 Del

*         IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           W.P.(C) 1380/2004

                                        Date of Decision:-7th May, 2012

IN THE MATTER OF:
VIMLA SHARMA                                        ..... Petitioner
                            Through:   Mr.Ram Mohan, Adv.

                       versus

M.C.D. & ORS.                                        ..... Respondents

Through: Ms. Mansi Gupta, Adv. for MCD.

CORAM:

HON'BLE MS. JUSTICE HIMA KOHLI

: HIMA KOHLI, J (Oral)

1. Vide order dated 20.03.2012, it was recorded that though

four reliefs were sought by the petitioner in the present petition,

notice was issued limited to the reliefs sought in prayer (a) and (d)

alone while granting leave to the petitioner to claim damages as

sought by her in prayers (b) and (c), before the appropriate forum.

2. Counsel for the petitioner states at the outset that he does

not wish to press for the relief sought in prayer (a) which is for

restoration of the subject flat and he seeks to confine the present

petition to relief sought in prayer (d) which is for quashing of the

order dated 31.12.2003 whereunder, respondents No.1 to 4/MCD

had demanded demolition charges of `5,875/- from the petitioner.

3. The petitioner claims to be a lawful owner in possession of flat

bearing No.360-F, Second Floor, Pocket-II, Mayur Vihar, Phase-I,

Delhi that was purchased by her from the respondent No.8 in the

year 1996. It is averred in the petition that on 09.06.2003,

respondent No.1-4/MCD had issued notices under Sections 349 and

433 of the DMC Act stating that the addressee had failed to comply

with the earlier notice issued under Section 343 and 344 of the DMC

Act and that MCD intended to take demolition action against the

unauthorized construction in the subject premises and therefore,

the owner/builder thereof was asked to remove the lock at the

entrance of the property. Vide another notice dated 09.06.2003,

issued by the MCD under Section 349 of the DMC Act, the

owner/occupier of the subject premises was called upon to vacate

the same within three days from the receipt of the notice, failing

which it was informed that the occupants would forcibly be removed

from the building for undertaking demolition action.

4. It is contended by the counsel for the petitioner that the

petitioner had furnished a reply dated 13.06.2003 to the aforesaid

notices and she had personally met the officers of the respondents

No.1-4/MCD and informed them that she had not carried out any

addition/alteration in the subject flat. As per the petitioner, when

she submitted her reply with the relevant documents, the same

were duly received in the office of the Deputy Commissioner, South

Zone, MCD (Pages 45-47), and the concerned officers of the MCD

also seemed to be satisfied. However, without intimating the

petitioner, a demolition squad of MCD had visited her premises on

27.12.2003 and they had demolished a part of the flat as

highlighted in red colour in the site plan enclosed with the writ

petition. A perusal of the site plan reveals that the demolition

action was carried out in the balcony of the subject premises. Thus,

the present petition came to be filed by the petitioner in January,

2004 claiming inter alia that the demolition action undertaken by

the respondents No.1-4/MCD on 27.12.2003 was arbitrary and

illegal and the same was undertaken without issuing any prior show

cause notice to the petitioner.

5. As per the counter affidavit filed by the respondents No.1-

4/MCD, the unauthorized construction existing in the subject

premises, which was in the shape of a room in the balcony, had

been booked by the MCD on 04.02.2003 and a show cause notice

was served upon the owner/builder of the subject premises

directing the addressee to submit a reply within three days.

However, the owner/builder of the subject premises failed to file a

reply to the aforesaid notice to show cause as a result of which, a

demolition order dated 10.02.2003 was passed by the MCD and the

owner/builder was called upon to demolish the unauthorized

construction pointed out in the notice to show cause within 5 days

from the date of receipt of the demolition order. However, no such

steps were taken by the owner/occupier to remove the

unauthorized construction and consequently, the respondents tried

to take demolition action on 09.04.2003 but could not do so as the

premises was found to be locked. It was only then that the notice

dated 09.06.2003 was issued by the MCD, informing the petitioner

that due to the non-compliance of the earlier notice issued under

Section 343 and 344 of the DMC Act, the MCD had intended to take

demolition action in regard to the unauthorized construction in the

premises. The said notice was followed by a vacation notice dated

09.06.2003 issued under Section 349 of the DMC Act. Finally, the

demolition action took place on 27.12.2003 when, one room and

some extended portion of the wall was demolished in the presence

of the police force and thereafter, the impugned notice dated

31.12.2003 was issued by the MCD to the petitioner calling upon

her to pay demolition charges of `5,875/- as per the provisions of

DMC Act.

6. It is the contention of counsel for the petitioner that the

aforesaid demolition charges are not payable by the petitioner as

the action of demolition undertaken by the MCD was arbitrary and

illegal and not preceded by any notice to show cause.

7. It is relevant to note that the notices referred to by the

petitioner and enclosed with the petition were for vacation under

Section 349 of the DMC Act and for calling upon the petitioner to

remove the locks under Section 433 of the DMC Act. However, the

petitioner has not placed on record the reply that she had submitted

to the notice to show cause calling upon her to inform the

respondent/MCD as to why the subject premises be not demolished.

The petitioner has also not stated as to the steps if any taken by

her upon receiving the demolition order dated 10.02.2003 in

respect of the subject premises. In other words, the records reveal

that the petitioner failed to take any legal steps to challenge the

demolition order that was passed by the MCD.

8. For the petitioner to contend that the charges for demolition

claimed by the respondents No.1-4/MCD from her under the

impugned notice dated 31.12.2003 are liable to be quashed, is

impermissible in the absence of any document placed on record to

show that the demolition order dated 10.02.2003 passed by the

MCD had been set aside or quashed by a court of law due to which,

MCD could not have taken demolition action. On the contrary, the

aforesaid demolition order appears to have remained in operation

and it was given effect to by the respondent/MCD by undertaking

the demolition action on 27.12.2003. When the demolition action

undertaken by the respondent/MCD was as per the procedure

prescribed in law, it cannot be contended by the petitioner that MCD

ought not to have demanded the demolition charges from the

petitioner as the said demand is only consequential in nature and

raised on the petitioner as per the mandate of law.

9. It is also pertinent to note that in the proceedings held on

30.01.2004, the petitioner had been informed that she could not

claim compensation/damages from the MCD in writ proceedings.

On a query posed to the learned counsel for the petitioner as to

whether any such proceedings for claiming compensation/damages

from the MCD on account of an illegal demolition action undertaken

by the civic authority, as per the allegations of the petitioner, had

been initiated by her, the reply is in the negative. This only fortifies

the submission made by the learned counsel for the

respondent/MCD that there did exist unauthorized construction in

the subject premises and the MCD had taken steps to remove the

same in accordance with law. In any event, the petitioner has

miserably failed to demonstrate in these proceedings that the

demolition order passed by the MCD was illegal and that the same

had been set aside/quashed in any legal proceedings.

10. In the aforementioned facts and circumstances, the relief as

prayed for in prayer (d) for quashing of the order dated 31.12.2003

issued by respondents No.1-4/MCD, cannot be granted. The prayer

made in the petition is declined and the petition is dismissed while

leaving the parties to bear their own costs.

(HIMA KOHLI) Judge MAY 07, 2012 'anb'/rkb