Delhi District Court
Mcd Appeal No. 05/14 vs North Delhi Municipal Corporation on 2 September, 2015
IN THE COURT OF SH. YOGESH KHANNA,
DISTT. & SESSIONS JUDGE (NORTHWEST),
ROOM NO. 401, ROHINI COURTS, DELHI.
MCD Appeal No. 05/14
Smt. Umapati
w/o Sh. Ram Khilawan
r/o 363 (B63), Gali No. 9
Shalimar Village, Delhi ........Appellant
Vs.
North Delhi Municipal Corporation
(Central Zone)
Through its Commissioner
Civic Centre, Minto Road
Delhi. ..........Respondent
Date of institution : 13.11.2014
Date of hearing arguments : 02.09.2015
Date of Judgment : 02.09.2015
JUDGMENT
1. This Judgment shall govern the disposal of an appeal u/s 347 of the DMC Act filed by the appellant against the Order dated 13.10.2014 passed by the Ld. Appellate Tribunal, MCD, in appeal no. 645/14 whereby Ld. Presiding Officer, Appellate MCD Appeal No. 05/14 Page 1 of 7 Tribunal, MCD, was pleased to vacate its status quo order dated 01.09.2014.
2. The grievance of the appellant is that she is a coowner and in possession of the property bearing no. 363B, Gali No. 9, Shalimar Village, Delhi, allotted to her husband Sh. Ram Khilawan by the Gaon Sabha for the residential purposes for a period of 9 years on lease vide letter of allotment dated 30.03.1974 and that her husband was authorized to construct the said property in 50 sq. yards of land.
3. It is the case of the appellant that late Sh. Ram Khilawan i.e. her husband had constructed two rooms in the said house and since then she has been residing in the said premises and that after the death of her husband, she is residing there with her children. It is further stated that the appellant is having a ration card, electoral card and electricity connection in the said premises wherein the number of the premises is shown as 363(B63), Gali No. 9, Shalimar Village, Delhi. It is further stated that the respondent without making any inquiry as to the number of the premises, had issued a notice for demolition of property bearing no. C62(C62B), Gali No. 9, Chander Shekhar MCD Appeal No. 05/14 Page 2 of 7 Marg, Shalimar Village, Delhi, i.e. the adjoining property and had affixed its notice on the premises of the appellant.
4. It is argued by the Ld. Counsel for the appellant that the appellant is residing in the premises bearing no. 363(B63) since the year 1974 and this fact is clear in the appeal titled as "Subhash Kumar vs. Umapati & Ors." bearing ARCT No. 51/12. The said Judgment is annexed with the present appeal.
5. It is further argued by the Ld. Counsel for the appellant that on 28/07/2014, the respondent issued a notice to the appellant for vacating her premises and granted 3 days time to the appellant despite receipt of the legal notice dated 15.07.2014 issued by the appellant through courier. It is further argued that on 19.08.2014, the officials of the respondent again approached the appellant and asked for vacating the suit premises for the purpose of demolition despite objections raised by the appellant that the number of the premises mentioned in the demolition notice is not that of the appellant and hence proper inquiry be conducted as to whose property, the respondent intends to demolish. Thereafter the officials of the respondent left the premises with the threat that they will come again with force MCD Appeal No. 05/14 Page 3 of 7 and will demolish the construction. Being aggrieved from such act of the respondent, the appellant preferred a suit against the respondent, presently pending in the Court of Ld. ASCJ, Rohini Courts, Delhi, in which the Ld. Court called for the status report from the respondent. It is further argued that the respondent, however, filed a false report and that too of property bearing no. C62, stating therein of an illegal construction in the said premises and that the same is under the occupation of the appellant.
6. It is further argued by the Ld. Counsel for the appellant that on 29.08.2014, the respondent again issued a notice u/s 349 of DMC Act for the demolition and in the said notice, the premises number was shown as C62 and not 363 (B63) which in fact is the real municipal number of the premises of the appellant. It is further argued that the appellant has nothing to do with the premises no. C62, hence, she has filed the present appeal.
7. The Ld. Appellate Tribunal of the MCD has vacated the status quo on the ground that appellant has not placed on record any document to show that the impugned notice was in respect of appellant's property which according to her is 363(B63), MCD Appeal No. 05/14 Page 4 of 7 Gali No. 9, Shalimar Village, Delhi, and secondly, that the lease given to the husband of the appellant had since expired long time ago and there exits no document to show the extension of allotment and thirdly, that there is nothing on record to show that the property, booked by the MCD, is the same property in which the appellant is residing.
8. I have gone through the impugned Order 13.10.2014 passed by the Ld. Appellant Tribunal.
I am afraid that the reasoning given by the Ld. Appellate Tribunal, MCD, vide its Order dated 13.10.2014, is not correct. Though the Ld. Appellate Tribunal has observed that the lease given to the husband of the appellant has expired and that there is no document to show the extension of the allotment, but it failed to ignore that there is no document either to show that the lease granted to the husband of the appellant herein has since been cancelled by the Government. It is true that the lease was initially granted for a period of nine years, but it is equally true that the husband of the appellant herein was allowed to construct the house on such plot. Thus the appellant does have a prima facie right to reside and use such premises. MCD Appeal No. 05/14 Page 5 of 7 More so, if there is any confusion qua the number of impugned premises, upon which the demolition order was actually issued, then, to my mind, the status quo order ought not to have been vacated till such dispute was decided. The impugned order dated 13.10.2014 of the Ld. Appellate Tribunal, MCD, itself shows that it is not sure if the property actually booked by the MCD, is the property where the appellant herein is residing or is the adjoining property. In such circumstance, there could have been no difficulty in grant of status quo order qua property bearing no. 363 (B63), Shalimar Bagh Village, Delhi. The apprehension of the appellant herein that in the garb of the demolition order of property bearing no. C62 (C62B), Gali No. 9, Chander Shekhar Marg, Shalimar Village, Delhi viz. the adjoining property, the respondent may demolish her property, appears to be genuine as she alleges that the impugned demolition order has been served upon her time and again. Now in such a scenario where the Ld. Appellate Tribunal has itself directed the appellant herein to place on record the documents to show that the impugned demolition order was against her property or not and had kept the matter for MCD Appeal No. 05/14 Page 6 of 7 further hearing and for filing of such documents, then in such an event, at least, the property bearing no. 363(B63), ought to have been protected from demolition, till this controversy was decided.
Thus in view of the discussions, the impugned Order dated 13.10.2014 passed by the Ld. Appellate Tribunal, MCD, in an appeal bearing A.No. 645/14 is set aside and consequently, the respondent herein is directed not to demolish the property bearing no. 363(B63), Gali No. 9, Shalimar Village, Delhi, belonging to the appellant herein, till the disposal of the appeal pending before the Ld. Appellate Tribunal, MCD.
9. With these observations, the present appeal stands disposed of. The parties are left to bear their own costs. Record of the Appellate Tribunal be returned alongwith an attested copy of the order passed today. Appeal file be consigned to Record Room, after completing necessary formalities.
Announced in the open Court
today i.e. 02.09.2015 (YOGESH KHANNA)
Distt. & Sessions Judge (N/W)
Rohini Courts, Delhi
MCD Appeal No. 05/14 Page 7 of 7