Delhi High Court - Orders
Smt Ajanta Das & Ors vs South Delhi Municipal Corporation & Ors on 10 October, 2022
Author: Manoj Kumar Ohri
Bench: Manoj Kumar Ohri
$~7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 2874/2022 and CM APPL. 8307/2022
SMT AJANTA DAS & ORS. ..... Petitioners
Through: Mr. Ashish Kr. Das and Mr. Divjit Singh
Vohra, Advocates
versus
SOUTH DELHI MUNICIPAL CORPORATION & ORS.
..... Respondents
Through: Mr. Sanjeev Sabharwal, Standing
Counsel for MCD with Ms. N.P. Haibila,
Advocate
Ms. Shoumya Das Gupta, Advocate for
Mr. Shadan Farasat, ASC for respondents No.2
and 3
Mr. Sudhanshu Prakash and Mr. Rajan Parmar,
Advocates
Mr. S.K. Bhaduri, Mr. Abhishek Parmar, Ms. Kirti
Parmar and Mr. Prem, Advocates for respondents
No.4 and 5 with respondent No.5 in person
CORAM:
HON'BLE MR. JUSTICE MANOJ KUMAR OHRI
ORDER
% 10.10.2022
1. By way of the present petition filed under Article 226 of the Constitution of India, the petitioners, who claim to be residents of First, Second and Third Floors of property bearing H.No. 40/113, Kalka Ji, Chittaranjan Park, New Delhi, have sought following reliefs:
"a) Issue an appropriate Writ, Order or Direction, more appropriately, writ of mandamus thereby directing Respondent Nos.1 to 3 to seal the basement and ground floors of the said premises (40/113 Kalkaji, Chittaranjan Park, New Delhi-19) and further direct Respondent no 4 & 5 to restore status quo Digitally Signed By:SANGEETA ANAND Signing Date:12.10.2022 11:36:44 ante with respect to the aforesaid basement and ground floors.
b) Issue instructions to Respondent no 1 to consider regularization of the 1st, 2nd & 3rd floors, as per prevailing and applicable laws, rules & regulations, as and when the process of (building or floor wise) regularization is started by Respondent no 1."
2. Learned counsel for the petitioners submits that respondents No.4 and 5 are the owners/occupiers of basement and ground floor of the subject premises and have carried out illegal and unauthorised construction therein.
3. Learned Standing Counsel for MCD has handed over a copy of the Status Report, which is taken on record. The same reads as under:-
"3. That cause of litigation on the part of the petitioners pertains to structural changes carried out at basement and ground floor of the property No.40/113, Kalkaji, Chittaranjan Park, New Delhi by respondent No. 4 & 5, which are stated to be done to use these premises for commercial purposes. The petitioners have sought direction to answering respondent to seal the basement and ground floor and to restore status quo ante with respect to the basement and ground floors. The petitioners have also sought direction to answering respondent to consider regularization of the 1st, 2nd and 3rd floor as per prevailing and applicable laws rules & regulations as and when the process of (building or floor-wise) regularization is started by the answering respondent.
4. That as regards status of the property w.r.t. sanctioned building plan, it is submitted that building plan in respect of subject property was sanctioned in the year 2005 vide File No.122/B/CZ/2005 dated 26/04/2005 for the construction of residential building having provision of basement, ground floor, first floor and second floor on plot measuring 133.78 square meters in size. The existing structure consists of basement to third floor.
Digitally Signed By:SANGEETA ANAND Signing Date:12.10.2022 11:36:44
5. That subject property falls along the notified mixed land use street. Consequently, commercial activities are permitted at basement and ground floor subject to payment of necessary charges. As per record, requisite charges stands deposited with answering respondent. Further, building plans in respect of properties falling along the notified roads are sanctioned as Halls having shutters at doors. Thus, the fixing of shutters at door is not objectionable.
6. That during inspection of the subject property on 30/09/2022 by the subordinate official of the deponent, some structural changes beyond permissible items, appeared to be done at basement and ground floor. The answering respondent has initiated demolition proceedings u/s 343/344 of the DMC Act vide File No.515/B/UC/EE(B)-I/CNZ/2022 dated 30/09/2022 and served show cause notice upon the owner who filed reply to the Notice inter-alia contended that no structural changes have been done. Only those works have been carried out, which are permissible under Clause 2.0.1(d) of Unified Building Bye-Laws-2016 for which no permission is required from answering respondent. Presently, case is under hearing. The action, if required shall be taken in accordance with outcome of demolition proceedings.
7. That as regards regularization of individual floors the petitioners to file application as per laid down procedure. The answering respondent will examine and decide the same as per policy."
4. Learned counsel for respondents No.4 and 5 submits that respondent No.4, who is owner/occupier of the basement and ground floor, had preferred a writ petition being W.P.(C) 12024/2022 which was disposed of on 22.08.2022 thereby granting liberty to the answering respondent to assail the letter dated 27.05.2022 of the Corporation before the ATMCD. It is informed that the appeal has already been filed before the ATMCD and the Digitally Signed By:SANGEETA ANAND Signing Date:12.10.2022 11:36:44 same is pending consideration.
5. On a specific query put by the Court, learned counsel for the petitioners submits that the petitioners have not preferred any application seeking regularisation before the Corporation with respect to the subject premises.
6. In view of the aforesaid Status Report as well as the statement made on behalf of respondents No.4 and 5 to the effect that the proceedings are now pending before the ATMCD, no further orders are required to be passed.
7. The present petition is disposed of alongwith the pending application. So far as prayer (b) is concerned, the petitioners shall be at liberty to move appropriate application before the respondent/Corporation which shall consider the same in accordance with law.
8. The respondents No.1 to 3 shall ensure that no further construction is carried out at the subject premises, unless in accordance with law.
MANOJ KUMAR OHRI, J OCTOBER 10, 2022 na Digitally Signed By:SANGEETA ANAND Signing Date:12.10.2022 11:36:44