Delhi High Court
Lalit Mohan Madhan vs Municipal Corporation Of Delhi & ... on 30 March, 2016
Author: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 30th March, 2016.
+ W.P.(C) No.6522/2010, CM No.5627/2014 (of the respondent no.5
for direction), CM No.12239/2015 (for permission to place on
record the counters), CM No.12240/2015 (for exemption) & CM
No.16348/2013 (of the respondent no.5 for necessary direction).
LALIT MOHAN MADHAN ..... Petitioner
Through: Mr. Raman Kapur, Sr. Adv. with Mr.
Aviral Tiwari, Adv.
Versus
MUNICIPAL CORPORATION OF
DELHI & ORS. ..... Respondents
Through: Mr. Neeraj & Mr. Vijay Joshi, Advs.
for R-1.
Mr. Y.K. Gupta, Attorney of R-5.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. The petition impugns the demolition order dated 20 th August, 2009
and the sealing order, if any and the order dated 30th August, 2010 of the
respondents No.1 to 4 Municipal Corporation of Delhi (MCD) with respect
to rear portion of Property No.B-1/26, Vasant Vihar, New Delhi. Mandamus
is also sought commanding the respondents No.1 to 4 MCD to de-seal the
property and to decide the application of the petitioner for regularization of
the construction in the rear portion of the property in accordance with the
order dated 23rd July, 2010 in W.P.(C) No.11305/2009 and Appendix 'Q' to
W.P.(C) No.6522/2010 Page 1 of 7
Building Bye-Laws and yet further in accordance with the order dated 5th
August, 2002 in W.P.(C) NO.376/1998.
2. Notice of the petition was issued and vide order dated 18 th October,
2010, Mr. O.P. Gupta also claiming to be the owner of the property was
ordered to be impleaded as party to the petition and subject to the petitioner
continuing to remain bound by the conditions imposed in order dated 23 rd
July, 2010 in W.P.(C) No.11305/2009 and the property continuing to be
sealed, demolition of the rear portion was stayed. Vide order dated 30th
October, 2014, the respondents No.1 to 4 South Delhi Municipal Corporation
(SDMC) being the successor of MCD was directed to inspect the property
No.B-1/26, Vasant Vihar, New Delhi and to demolish the unauthorised non-
compoundable portion, if any and to file a status report. However, it was
reported that Mr. O.P. Gupta was obstructing compliance of the said
direction by the respondents No.1 to 4 SDMC. Accordingly, vide order
dated 30th January, 2015 notice was issued to Mr. O.P. Gupta to show cause
why action for contempt of Court be not taken against him. On 4 th February,
2015, Mr. O.P. Gupta appeared and tendered unconditional apology and
which was accepted and the notice issued of contempt discharged.
Respondents No.1 to 4 SDMC filed a report that a portion of the rear side of
W.P.(C) No.6522/2010 Page 2 of 7
the property is non-compoundable and requires to be rectified. Per contra,
Mr. Y.K. Gupta attorney of Mr. O.P. Gupta, on 24th March, 2015 contended
that the entire rear portion of the building was unauthorised and liable to be
demolished. The order dated 24th March, 2015 records that Mr. O.P. Gupta
was taking advantage of the fact that he is residing in the premises and was
frustrating the attempts of the petitioner to enjoy the rear portion of the
property. It was further prima facie observed that if the building was
contrary to sanctioned plan then the building has to be demolished in entirety
as action taken with respect to portion of the building would be inequitable.
SDMC was again directed to file a full report as to the deviations from the
sanctioned plan which are not compoundable and the proposed action in
respect of the property in entirety including the front portion. In compliance
therewith, a status report dated 9th July, 2015 has been filed by the
respondents No.1 to 4 SDMC to the effect:
(i) that in compliance with the directions dated 30th October, 2014
and 31st January, 2015 status report had already been submitted;
(ii) that non-compoundable portions had already been mentioned in
the last status report;
W.P.(C) No.6522/2010 Page 3 of 7
(iii) to demolish the non-compoundable deviations, demolition
action was taken on 17th June, 2015 and thereafter from 29th June to 4th
July, 2015;
(iv) that the property was re-sealed after demolition.
3. It was informed during the hearing on 16th July, 2015 that only the
compoundable portions of the property have been left after the demolition.
4. Thus, the only issue which requires consideration is, whether the
petitioner is entitled to a direction as claimed in this regard.
5. Mr. Y.K. Gupta as attorney of respondent No.5 Mr. O.P. Gupta
opposed the same. It was argued that the petitioner, claiming to be purchaser
of the property from Mr. S.C. Goel brother of Mr. O.P. Gupta is not entitled
to claim regularisation. Reliance in this regard is placed on Royal Paradise
Hotel (P) Ltd. Vs. State of Haryana (2006) 7 SCC 597. Copies also of (i)
judgment dated 21st September, 2010 in W.P.(C) No.6390/2010 titled M/s
Mehrasons Jewellers Pvt. Ltd. Vs. Municipal Corporation of Delhi; (ii)
judgment dated 19th January, 2011 in W.P.(C) No.4515/2008 titled P.N.
Kohli Vs. Union of India; and, (iii) judgment dated 27th October, 2005 in
Appeal (Civil) No.6588/2005 titled Jaipur Municipal Corporation Vs. C.L.
Mishra, were handed over.
W.P.(C) No.6522/2010 Page 4 of 7
6. I am however of the opinion that the said question is now no longer
open to consideration. I had in an earlier round of litigation between the
parties namely W.P.(C) No.11305/2009 titled L.M. Madan Vs. M.C.D.
occasion to consider the matter and had pronounced the judgment on 23rd
July, 2010 whereby referring to the order dated 5th August, 2002 in W.P.(C)
No.376/1998 titled S.C. Goel Vs. MCD yet earlier filed, MCD was directed
to consider the application of the petitioner for regularisation of
compoundable portions in the rear portion of the property, after hearing the
petitioner as well as the said Mr. O.P. Gupta. The respondents No.1 to 4
SDMC in compliance therewith has passed order dated 30 th August, 2010
and has observed that regularisation of the rear portion of the property
cannot be considered being in violation of the perpetual lease of the land
underneath the property, Master Plan for Delhi (MPD)-2021 and prevailing
Building Bye-Laws and further observed that regularisation of existing
building can be considered only if both of the sub-lessees jointly apply for
whole of the building for regularisation of unauthorised construction /
deviations. The correctness of the said reasoning is to be tested.
7. As far as the reason given of the construction carried out being in
violation of the perpetual lease of the property is concerned, I had occasion
W.P.(C) No.6522/2010 Page 5 of 7
to deal therewith also in my judgment dated 30th August, 2011 in W.P.(C)
No.3668/1996 titled S.C. Goel Vs. D.D.A. and W.P.(C) No.4958/2001 titled
S.C. Goel Vs. Lt. Governor. It is noted therein that Delhi Development
Authority (DDA) as grantor of the lease of the land underneath the property
had already cancelled the same and re-entered the property and which was
subject matter of a suit filed by Mr. O.P. Gupta. I am of the view that since
the action of the DDA as superior lessor to re-enter the property is still
pending adjudication and there is an interim order therein, consideration of
the application for regularisation should not be held up for the said reason.
8. The other reason given by respondents No.1 to 4 SDMC in the order
dated 30th August, 2010, of the construction being violative of MPD-2021
and prevailing Bye-Laws, in my opinion, cannot be a ground for denying
regularisation of the compoundable portions because of the directions
already issued in the earlier rounds of litigation in this regard.
9. As far as the last reason given in the order dated 30 th August, 2010 for
denying regularisation of compoundable portions, of the same being not
possible without Mr. O.P. Gupta joining in the same, as already observed in
the order dated 24th March, 2015 supra, respondent No.5 Mr. O.P. Gupta
cannot be permitted to frustrate the attempts of the petitioner to enjoy his
W.P.(C) No.6522/2010 Page 6 of 7
portion of the property. Mr. O.P. Gupta thus cannot, while enjoying a
portion of the property in his possession, by withholding his consent, deny
regularisation to the extent possible of the remaining portion of the property.
10. SDMC, in its status reports filed in this Court has already disclosed
the portions which are compoundable / regularisable and has demolished the
remaining portions of the property.
11. The petition is thus disposed of directing SDMC to pass a formal order
showing the portions which are compoundable / regularisable and the terms
of regularisation be communicated to the petitioner.
No costs.
RAJIV SAHAI ENDLAW, J.
MARCH 30, 2016
'bs'
