Asha Rani Garg & Ors. vs Mcd & Anr.
2012 Latest Caselaw 3346 Del

*          IN THE HIGH COURT OF DELHI AT NEW DELHI

+              W.P.(C) 1187/2012 & CMs No.2568 & 2569/2012

                                         Date of Decision: 18th May, 2012

IN THE MATTER OF

ASHA RANI GARG & Ors.                                  ... Petitioners
                    Through Mr.Akhil Mittal, Advocate for petitioner No.1
                    Mr.Mayank Bansal, Advocate for Mr.Rajiv
                    Gupta/petitioner No.2

                    versus


MCD & ANR.                                                ..... Respondents
                         Through Ms.Saroj Bidawat, Advocate for R-1


CORAM
HON'BLE MS.JUSTICE HIMA KOHLI

HIMA KOHLI, J. (Oral)

1. The present petition was originally filed by Smt.Asha Rani Garg,

praying inter alia for quashing the order dated 18.2.2012 passed by the

respondent No.1/MCD under Section 348 of the Delhi Municipal Corporation

Act, 1957 calling upon the owners/occupiers of premises bearing No.BM-

2(East), Shalimar Bagh, Delhi, to demolish the building on the ground that

the same was in a dangerous condition and was dangerous to the residents

of the area.

2. On 28.2.2012 at the stage of admission, counsel for the petitioner was

directed to implead the co-owners of the subject premises, namely, Mr.Rajiv

Gupta, the owner of the ground floor and Mr.Rakesh Kumar Gupta, the

owner of the first floor. An amended memo of parties was also directed to

be filed by the petitioner, whereafter, notices were directed to be issued to

them.

3. Instead of impleding the aforesaid two persons as co-respondents, an

amended memo of parties has been filed by the counsel for the petitioner

impleading Mr.Rajiv Gupta as petitioner no.2 and Mr.Rakesh Kumar Gupta as

petitioner No.3.

4. Mr.Mayank Bansal, Advocate appears for Mr.Rajiv Gupta and states

that his client is a tenant on the ground floor and he had never agreed to be

impleaded as a co-petitioner in the present proceedings and that Ms.Shalini

Gupta is the owner of the ground floor of the subject premises and the

petitioner No.1 is well aware of the said fact but he has intentionally not

impleaded her as a co-respondent.

5. Counsel for the petitioner No.1 is directed to amend the memo of

parties by impleading Mr.Rajiv Gupta and Ms.Shalini Gupta as co-

respondents. Needful shall be done within one week.

6. On the last date of hearing, learned counsel for the respondent

No.1/MCD who had appeared on advance copy, had stated that the two

impugned notices, both dated 18.2.2012 were issued by the MCD to the

petitioner and the remaining co-owners/occupiers in view of a complaint

received by the local police and forwarded to the respondent/MCD, informing

the Department that the subject premises was in a dangerous condition and

the roof of the ground floor was sagging due to the weight of the

transmission towers that had been installed by the petitioner on the roof of

the third floor. Learned counsel had further stated that merely because the

petitioner had dismantled the transmission towers in question few days ago,

could not be a ground to accept his submission that the structural strength

of the building had not been adversely affected due to the installation of the

two towers.

7. In view of the aforesaid submission made by the learned counsel for

the respondent No.1/MCD, it was deemed appropriate to direct the MCD to

depute an Architect to carry out an inspection of the subject premises and

assess its structural stability and file a report. Simultaneously, the petitioner

was also directed to file an affidavit as to whether proper permissions had

been obtained by him from the competent authorities before the installation

of the transmission towers on the terrace of the third floor of the subject

premises and if so, relevant documents in support of the same were to be

enclosed with the affidavit.

8. Now, two affidavits have been filed by the respondent No.1/MCD. The

first one is filed by the Executive Engineer(Civil), MCD wherein, it is stated

that after passing of the order dated 18.2.2012 calling upon the

owners/occupiers of the subject premises to demolish the building in view of

its dangerous condition, on 23.2.2012, the petitioner had submitted a report

enclosing the structural stability analysis to the Department and the same

was perused, but it was noticed that no precise calculations regarding the

load bearing capacity in respect of each floor, had been furnished with the

said report. It is further averred that in order to ascertain the structural

safety of the building, the Department had hired the services of a Structural

Engineer who submitted a report to the effect that the front portion of the

building is structurally unsafe due to excessive pressure/loading, as a result

of which there is deflection in the beam of the front wall at ground floor,

which is beyond the permissible limits. The floor wise plan of the building

has been enclosed with the report of the Structural Engineer, who has

recommended erection of a proper support of permanent nature in the front

wall of the drawing room and the staircase at all floor levels.

9. In view of the aforesaid report received by the MCD, a letter dated

4.5.2012 has been issued by the Department to all the occupants of the

building for carrying out the strengthening of the building as recommended

by the Structural Engineer within 20 days from the date of issuance of the

aforesaid letter. Copies of the letters dated 4.5.2012 and 9.5.2012 issued

by the MCD are enclosed with the affidavit.

10. Another affidavit has been filed by the Executive Engineer(Building-),

Rohini Zone, MCD wherein, it is stated that the entire sealing action of the

mobile tower installed on the third floor of the subject premises was done

after following the due process of law and subsequently, MCD had temporary

de-sealed the same to enable the petitioner to remove the tower which has

since been removed.

11. The petitioner as also Mr.Rajiv Gupta, tenant on the ground floor of

the subject premises assure the Court that they shall take immediate

remedial measures to restore the structural strength of the building if the

time for doing so is extended.

12. It is deemed appropriate to grant a period of two months to the

owners/occupiers of the subject premises to enable them to undertake

necessary remedial measures to restore the structural strength of the

building. As the owner of the ground floor of the subject premises is not

before the Court, MCD is directed to issue another notice to Ms.Shalini Gupta

for which purpose, learned counsel for Mr.Rajiv Gupta shall furnish her

address, to the counsel for the respondent No.1/MCD. Respondent

No.1/MCD shall also forward the bill raised on it by the Structural Engineer

to Smt.Asha Rani Garg, who shall deposit the said amount with the MCD

within a period of one week from the date of receipt of such a bill, failing

which the said amount shall be treated as arrears of land revenue to be

recovered accordingly.

13. It is further directed that the respondent No.1/MCD shall not take any

coercive steps against the owners/occupiers of the subject premises, for a

period of two months from today to enable them to take remedial measures.

However, in case no steps are taken by the owners/occupiers to restore the

structural strength of the subject premises within the extended time, the

respondent No.1/MCD shall be at liberty to take further action in terms of its

notice dated 18.2.2012.

The petition is disposed, alongwith the pending applications, while

leaving the parties to bear their own costs.

                                                            (HIMA KOHLI)
MAY 18, 2012                                                   JUDGE
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