Delhi High Court
Anita Raj vs South Delhi Municipal ... on 28 April, 2023
Neutral Citation Number : 2023:DHC:3013
* IN THE HIGH COURT OF DELHI AT NEW DELHI
W.P.(C) 14993/2021, CM APPL. 47314/2021
Date of Decision: 28.04.2023
IN THE MATTER OF:
ANITA RAJ ..... Petitioner
Through: Mr. Ravi Kapoor, Mr. Rishav
Ambastha and Ms. Shreya
Kunwar, Advocate.
versus
SOUTH DELHI MUNICIPAL CORPORATION ..... Respondent
Through: Mr. Tushar Sannu, Standing
Counsel with Mr. Azad Bansala,
Advocate.
CORAM:
HON'BLE MR. JUSTICE MANOJ KUMAR OHRI
JUDGMENT
MANOJ KUMAR OHRI, J. (ORAL)
1. By way of present petition filed under Article 226/227 of the
Constitution of India, the petitioner seeks to assail the order dated
09.12.2021 passed by the District Judge in Appeal No. 1/2021 wherein
the appeal filed by the Respondent No. 1 was allowed and the final
order/judgment dated 25.06.2021 passed by the ATMCD in Appeal
No. 7812021 titled R.K. Sharma v. SDMC was set aside.
2. Mr. Ravi Kapoor, learned counsel for the petitioner contended that
the impugned order was passed without considering that the show cause
Digitally Signed
By:NIJAMUDDEEN ANSARI
Signing Date:04.05.2023
10:59:06
Neutral Citation Number : 2023:DHC:3013
notice issued by respondent lacked material details of the alleged
unauthorised construction.
3. Mr. Tushar Sannu, learned Standing Counsel for the respondent,
on the other hand, has contested the present petition by contending that
the petitioner is guilty of delaying the proceedings. He submits that
earlier the petitioner had approached this Court by way of W.P.(C)
1469/2019 which was disposed of vide order dated 13.02.2019.
Petitioner challenged said order before the Division Bench by way of
LPA No. 162/2019 which was also disposed of vide order dated
30.07.2019.
4. A perusal of records would show that the petitioner has claimed
that her late husband R.K. Sharma was the owner of property bearing No.
B-1/1140/Duplex, Vasant Kunj, New Delhi and after his death, the
petitioner acquired the title. The records further reveal that noticing the
unauthorised construction in the shape of deviation against the
sanctioned building plan, the respondent booked the same. It was alleged
that the petitioner had extended the room as well as balcony in the
subject property. A show cause notice, and vacation notice under Section
349 of the DMC Act was also issued to the petitioner. Later, Public
Grievance Commission (PGC) vide its order dated 15.11.2017,
07.02.2018 and 11.04.2018 directed the respondent to take appropriate
action against the unauthorised construction existing in the subject
property. The said orders came to be challenged by the petitioner before
this Court by way of W.P.(C) 1469/2019. A Coordinate Bench of this
Court while noting that the proceedings were pending before the
Appellate Tribunal, MCD, dismissed the petition. A challenge made
before the Division Bench also came to be dismissed. Apparently, in the
Digitally Signed
By:NIJAMUDDEEN ANSARI
Signing Date:04.05.2023
10:59:06
Neutral Citation Number : 2023:DHC:3013
proceedings before the Appellate Tribunal, the show cause notice was set
aside whereafter, a second show cause notice was given to the petitioner.
The Appellate Tribunal vide order dated 25.06.2021 remanded back the
matter to the respondent with observation that both the show cause
notices dated 22.12.2020 and earlier show cause notice dated 19.09.2017
were verbatim. The aforesaid order came to be challenged before the
learned District Judge. In the impugned order, learned District Judge
noted the categorical submissions of the respondent that show cause
notice specifies that the petitioner had extended a room and a balcony.
The only contention raised on behalf of the petitioner was that specific
measurements were not given.
5. Noting the aforesaid, learned District Judge directed the Appellate
Tribunal to consider the case on its own merits. Even in the present
petition, the respondent has contended that no further details can be
provided as the show cause notice already issued clearly specifies the
details of unauthorised construction. It is stated that the extension has
been carried in excess of standard building plan of DDA thus amounting
to encroachment on public land.
6. In the considered opinion of this Court, in lights of the stand taken
by the MCD, learned District Judge has rightly directed the ATMCD to
decide the case on merits on the basis of pleas raised by both the parties.
In view of the aforesaid, I find no ground to interfere with the impugned
order. Consequently, the petition is dismissed alongwith miscellaneous
application.
7. The parties are directed to appear before the ATMCD on
15.05.2023 at the first instance.
Digitally Signed
By:NIJAMUDDEEN ANSARI
Signing Date:04.05.2023
10:59:06
Neutral Citation Number : 2023:DHC:3013
8. The Registry shall communicate a copy of this order to the
Appellate Tribunal, MCD.
9. Considering that the show cause notices are of the year 2017,
ATMCD is requested to expedite the appeal and disposed of the same
within two months from today. It is clarified that the appeal shall be
considered on its own merits without being influenced in any manner by
the present order.
(MANOJ KUMAR OHRI)
JUDGE
APRIL 28, 2023
ga
Digitally Signed
By:NIJAMUDDEEN ANSARI
Signing Date:04.05.2023
10:59:06
