Ramesh Kumar Mittal & Anr vs Municipal Corporation Of Delhi & ...
2013 Latest Caselaw 193 Del

$~1
*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     LPA 13/2013

      RAMESH KUMAR MITTAL & ANR                  ..... Appellants
                 Through: Mr. Kirti Uppal, Sr. Adv. with
                           Mr. A.K. Verma, Advocate
         versus

      MUNICIPAL CORPORATION OF DELHI & ORS. ... Respondents
                   Through: Mr. D.K. Gupta, Adv. for R1, 2 & 4
                            Mr. Rakesh Kumar, Adv. for R3
      CORAM:
      HON'BLE THE CHIEF JUSTICE
      HON'BLE MR. JUSTICE V.K. JAIN

                          ORDER

% 11.01.2013

At the time when the LPA was taken up for hearing for admission, learned counsel appearing for the respondents 1 to 4 have taken notice and made their submissions.

2. At the instance of the respondent No.3, a writ petition came to be filed seeking for a direction to MCD for removal of illegal structure/encroachment from the street between property bearing MCD No. 12084 to 12087, Block 26, Plot No.1/24-25, G.T. Karnal Road, Shakti Nagar, Delhi.

3. At the time when the writ petition was heard, the counsel for the petitioner submitted that the report of SDM, which has been filed by him pursuant to the directions of the Court, after an inspection, has been extracted in detail by the learned Judge. The report suggested that there were encroachments on the road, allegedly made by respondents No.4 to 6 in the writ petition, including the appellants herein and they shall be removed. On the basis of the report, the learned Judge directed finally as follows:

"In view of the stand taken by the counsel for respondents, counsel for petitioner submits that no further orders are required to be passed. MCD will take appropriate action in accordance with law expeditiously and within three months from today."

4. The above order is questioned by the respondents No.4 and 5 in the writ petition, i.e. the appellants on the ground that the report of the SDM to the effect that there is encroachment on the road at the instance of the appellants is not true and in the circumstances, though the appellants may not have any grievance for the respondent MCD to take action in accordance with law, the minimum requirement of a notice has not been mentioned in the order and for that reason, the appeal has been filed. We have heard the submissions.

5. The order impugned in the appeal merely directs the MCD to take appropriate action in accordance with law within a period of three months, on the basis of a finding of the SDM. As it is now disputed by the respondents No.4 and 5 that there was any encroachment, the said question cannot be now gone into in these proceedings, as there is another report contrary to the said finding. The question as to whether the encroachment is there or not is a matter to be ultimately considered by the MCD with reference to both the reports and other material, if any. Section 320 of Delhi Municipal Act deals with, among other things, prohibition of structures fixtures etc., permanent or of a temporary nature, on a street, whereas Section 321 of the said Act refers to the encroachments which are of a temporary nature. The encroachment of a permanent nature such as in the form of erection of a building, which has existed for quite some time, cannot be said to be a temporary structure, of the nature envisaged in Section 322 of the Act and the said section does not contemplate removal of such a structure, without notice to the alleged encroacher. Though MCD would still have power to remove such a structure on two grounds namely its being an encroachment on a street and its being an unauthorized erection, such a power, in our view, can be exercised only after giving a show cause notice to the alleged encroacher. There is no sanctity in law, for removal of a permanent structure of this nature, which is not covered by the provisions of Section 321 of the Act, without giving show cause notice to the alleged encroacher. The purpose of giving show cause notice in such a case is to give an opportunity to the alleged encroacher, to satisfy MCD, that in fact there is no encroachment on a street, as defined in the Act. However, in case any obstruction or encroachment is of a temporary nature, envisaged in Section 321 of the Act is made on the street, such temporary obstructions or encroachments can certainly be removed in terms of Section 322, without there being any notice.

In the given facts, we are informed that the structure in question was removed far back in the year 1982 on the ground that it was an encroachment and it is the contention of the appellants that thereafter there were some litigation in regard to the same structure. In case of such an encroachment which is stated to be of a permanent nature not envisaged in Section 322 of the Act and, which has been in existence for quite some time, the appellant is entitled to a notice before any action is taken by the MCD. The learned Judge has correctly decided the issue giving liberty to the MCD to take appropriate action expeditiously in accordance with law and in any case within a period of three months. Except making a clarification as to a prior notice which, considering the permanent nature of the structure, is to be given to the appellant before the order is implemented, we do not find any reason to interfere with that order.

The appeal is accordingly disposed of.

                                                  CHIEF JUSTICE


JANUARY 11, 2013                                  V.K. JAIN, J
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