Om Prakash Singh vs New Delhi Municipal Council & Ors.
2013 Latest Caselaw 5555 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+             W.P.(C) 7525/2013 & CM APPL. NO. 16090/2013

       OM PRAKASH SINGH                                      ..... Petitioner

                           Through:     Mr.R.K. Saini, Advocate

                           versus

       NEW DELHI MUNICIPAL COUNCIL & ORS                     ..... Respondents

                           Through:     Mr. Vivek Sood, Advocate

       CORAM:
       HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA


SUDERSHAN KUMAR MISRA, J. (ORAL)

1. This petition impugns the show cause notice dated 06.11.2013 under Section 247 of the New Delhi Municipal Council Act, 1994, issued to the petitioner in respect of construction of a room, kitchen and toilet in an area approximately 32'X 20'on the second floor of premises No. J-44, Jor Bagh Lane, B.K. Dutt Colony, New Delhi, unauthorisedly, as well as the reconstructed structure of approximately 10'X 12'at the terrace floor in terms of the particulars mentioned in that notice.

2. It is the case of the petitioner that the structure mentioned at Sl. No. 1 in the said notice was in fact, constructed before 1.1.2006, and is protected in terms of Section 3 of the Delhi Laws (Special Provisions) Act, 2006. As far as the second structure is concerned, counsel for the petitioner states that his client is willing to demolish the same at his own expense.

3. Section 3 of the Delhi Laws (Special Provisions) Act, 2006 states as follows:

"3. Enforcement to be kept in abeyance.-(1) Notwithstanding anything containd in any relevant law or any rules, regulations or bye-laws made thereunder, the Central Government shall within a period of one year of the coming into effect of this Act, take all possible measures to finalise norms, policy guidelines and feasible strategies to deal with the problem of unauthorised development with regard to the under-mentioned categories, namely:

(a) mixed land use not conforming to the Master Plan;

(b) construction beyond sanctioned plans; and

(c) encroachment by slum and Jhuggi-Jhompri dwellers and hawkers and street vendors, so that the development of Delhi takes place in a sustainable and planned manner."

4. According to counsel for the petitioner, in view of the aforesaid provisions, it is not even open to the respondents to issue a show cause notice calling upon them to explain why further action may not be taken in respect of the said structure. I do not agree.

5. Ex-facie, there does not appear to be any such limit or moratorium on the power vested under Section 247 of the DMC Act. It is noticed that Section 247(i) clearly envisages a reasonable opportunity to show cause why an order of demolition be not passed, which obviously means that sufficient opportunity is to be granted to the person concerned to lay all the pertinent facts with regard to the structure in question before the authority including, inter alia, the nature, extent and age of construction of the said structure, to enable the authority to take a decision as to whether the facts and circumstances of the case entitle the petitioner to the benefit of the aforesaid provision. Further, in case the petitioners were aggrieved of any

decision in this respect, an appeal is also provided under Section 247(ii) to the Appellate Tribunal.

6. No precedent has been cited by the counsel at the Bar for the proposition canvassed by him.

7. The highest that can be said for the petitioners' case is that the structure in question is one which cannot be demolished. Surely that does not make the petitioners' case better than any other validly constructed structure, which also cannot be demolished. However, even in the case of the structure of the latter type, if the NDMC considers it fit to do so, a notice to show cause can certainly be issued under Section 247; and if that is done, it would be open to the person concerned, to submit all the pertinent facts to enable the NDMC to take an informed decision in the matter including, the decision not to proceed further.

8. In my view, Section 3 of the Delhi Laws (Special Provisions) Act, 2006, merely provides an additional ground on which demolition can be successfully denied.

9. The petition is therefore dismissed.

SUDERSHAN KUMAR MISRA, J.

NOVEMBER 29, 2013 rd