Sulekh Malik vs South Delhi Municipal Corporation & Ors on 26 May, 2023

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Delhi High Court - Orders

Sulekh Malik vs South Delhi Municipal Corporation & Ors on 26 May, 2023

1. The Petitioner, who claims to be having a plot in Village Masoodpur is aggrieved by the unauthorised construction stated to be carried out by respondent nos.3 and 4 in Khasra Nos.68, 84, 85 and 478/396/87/1 Village This is a digitally signed order.

2. A Status report on behalf of the MCD was placed on record. Later, a further status report has been filed on behalf of the respondents. The relevant extracts of the status report reads as under:-

"That in order to ascertain the status of the property in question i.e. Kh. No. 68, 84, 85 and 478/396/87/1, Village Masoodpur, Main Road, Opposite Community Centre, New Delhi, the area field staff of Building Department-II of South Zone / answering Respondent / MCD has inspected the same and also referred to the record available in this regard. On inspection and referring to the record the status of the property as noticed is detailed herebelow:-

i) As per record, the subject property is already stands booked vide file No. 15/02/2018 in the shape dated of 95/UC/B-

II/SZ/2018 construction of Basement and Ground floor near main gate and compound walls at various locations, vide file No. 150/UC/B-II/SZ/2019 dated 23/04/2019 (in continuation of previous booking No. 95/UC/BII/SZ/2018) in the shape of digging Basement and raising columns and walls, vide file No. 196/UC/B continuation of previous booking No. II/SZ/2019 dated 21/05/2019 (in continuation of previous booking No. 150/UC/B-II/SZ/2019) in the shape of Ground floor and further booked vide file No.9/UC/B-II/SZ/2022 dated 07/02/2022, in the shape of First floor and Second floor (in continuation to booking No. 196/UC/B-II/SZ/2019), for taking the necessary demolition action u/s 343/344 of DMC Act. Upon following the due process of law in this regard, the necessary demolition orders/ notices also stands passed/ issued by the Competent Authority i.e. the then AE (Bldg)-II of South Zone / MCD vide dated 23/02/2018, 02/05/2019, 30/05/2019 and 15/02/2022 respectively. The copy of the demolition orders / notices are annexed herewith as Annexure-A (Colly.)

ii) Furthermore letters dated 12/03/2018 and, 02/05/2019 u/s 344 (2) of the DMC Act, have also been sent to SHO, PS. Vasant Kunj (North), New Delhi with the request that the This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/09/2023 at 10:01:05 unauthorized construction be stopped and workmen present at site / property in question be removed and construction material including the tools, machinery, etc. be seized. Copy of the said letters are annexed as Annexure-B (Colly).

iii) Besides this letters dated 12/03/2018 and 02/05/2019 for disconnection of electricity and water supply from the aforesaid property have also been sent to the concerned authorities. Copy of the said letters are annexed as Annexure-C (Colly).

iv) Moreover, letters dated 12/03/2018 and 02/05/2019 have also been sent to the Sub Registrar with the request not. to register this property under Indian Registration Act, 1908. Copy of the said letters are also annexed as Annexure-D (Colly).

v) That besides this, prosecution action u/s 466-A of the DMC Act, has also been initiated against the owner / occupier of the subject property and complaint a letter bearing No. D/4568/ DC/SZ/EE(B)-II/2018 dated 26/03/2018 has been sent to concerned SHO, PS Vasant Kunj ( North). The copy of the said complaint is annexed herewith as Annexure-E.

vi) Further it is also relevant to point out that in respect of the property in question, the necessary sealing proceedings u/s 345-A of DMC Act, have also been initiated and after following due process of law, the necessary sealing orders have also been passed by the competent authority i.e. the then Dy. Commissioner, South Zone/MCD on 23/04/2018, 14/06/2019 and 22/08/2019 respectively. Copy of sealing orders are also annexed herewith as Annexure -F (Colly].

4. That it is also pointed out here that pursuant to aforesaid demolition / sealing order already passed in respect of the subject property, the Building Department-II of South Zone /MCD has taken / carried out the necessary demolition / sealing This is a digitally signed order.

Sl. No. Date of Action taken action

1. 13.04.2018 On the special direction of Hon'ble Monitoring Committee the property has been sealed at 01 point at main gate, upon availability of police force.

2. 15/04/2019 During the routine inspection the seals affixed by the department on 13/04/2018 were found tampered with, hence, a complaint bearing No. D/460/DC/ Bldg-

II/SZ/ 19 dated 30/04/2019 for lodging an FIR u/s 448/188 of IPC read with section 461 of DMC Act, against the owner / builder has been sent to DCP South District, Hauz Khas, New Delhi.

3. 25.04.2019 Action could not be materialized due to non availability of police force.

4. 06.05.2019 Action could not be materialized due to non availability of police force.

5. 14.05.2019 Action could not be materialized due to non availability of police force.

6. 24.05.2019 Upon availability of police force, during the course of action entire property has been re-sealed at 02 points at main gate.

7. 03.06.2019 Upon availability of police force, during the course of action the Ground floor roof has been bend down/titled completely and 05 Nos. of brick walls have also been demolished at Ground Floor.

Simultaneously, the complete building sealed at main gate at 02 points.

8. 23.09.2020 Instance of tampering of seals, affixed by the department on earlier occasion were noticed, during the routine inspection of the area by field staff, accordingly in This is a digitally signed order.

II/SZ/20 dated 08 /10 /20, for lodging an FIR u/s 448/188 of IPC read with section 461 of DMC Act, against the owner / builder has been sent to DCP West District, Vasant Vihar, New Delhi.

9. 02.03.2022 Upon availability of police force, during the course of action 04 Nos. of RCC panels at Second floor have been demolished / cut down.

The photographs taken during the aforementioned actions, copy of no force letter along with copy of complaints are annexed herewith as Annexure-G (Colly.)

5. That after taking the aforementioned actions, letters dated 24.05.2019, 06.06.2019 and 22.03.2022 have also been sent to concerned SHO PS Vasant Kunj (South) with the request to direct the patrolling staff to keep strict watch and ward over the subject property so that the demolished portion may not be repaired/restored/re-constructed and the seals affixed by the department may not be tampered with. Copy of the said letters is annexed herewith as Annexure-H (Colly).

6. That now the department has fixed the further demolition/ sealing action programme on 05/10/2022, which will be taken/ carried out upon availability of police force.

4. Subsequently, another status report has been filed stating as under:-

"3.That the purposed demolition/sealing action programme fixed for 05/10/2022 in respect of the subject property i.e. Kh. No. 68, 84, 85 and 478139618711, Village Masoodpur, Main Road, Opposite Community Centre, New Delhi, was deferred to 0611012022, by the Building Department - II of South Zone MCD due to "DUSSHERA FESTIVAL".

4. That on dated 0611012022, upon availability of police force, the Building Department-II of South Zone MCD has taken I This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/09/2023 at 10:01:06 carried out further demolition action and vide same, 04 Nos. of panels have been demolished at roof of Second floor. The photographs taken during the said demolition action are annexed herewith as Annexure -A (Colly).

5. That after taking the aforesaid demolition action a letter bearing No. 2801/AE(Bldg)-II/SZ/2022 dated 25/1012022 has been sent to SHO concerned, PS Vasant Kunj (South) New Delhi with the request to direct the concerned area patrolling staff to keep strict watch and ward over the subject property so that the demolished portion may not be restored I repaired I reconstructed. Copy of the letter as sent in this regard is also annexed herewith as Annexure-B.

6.That further action in respect of subject property will be taken I carried out during the monthly schedule of the area in question, upon availability of police force."

3. Notably, on the request of the learned counsel for the petitioner, a Local Commissioner was appointed, who has also filed a report.

4. Learned counsel for the petitioner while referring to the photographs placed on record along with the report filed by the Local Commissioner submits that the action taken by MCD is only cosmetic. He further submits that the entire action is not taken against the unauthorized construction.

5. Mr. Sannu, while appearing for MCD disputes the submission and submits that demolition action was taken on number of occasions and further action would be taken in accordance with law.

6. Mr. Siddiqui, learned counsel appearing for respondent no.4 submits that the answering respondents have not carried out any construction and the present petition has been filed only out of personal vendetta. He submits that answering respondents had entered into an agreement-to-sell with the petitioner's daughter-in-law for which, she had preferred suit No. 644 of This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/09/2023 at 10:01:06 2021 for specific performance. The same is pending consideration before this Court. He submits that the petitioner has also lodged a complaint against the respondent which has resulted in an FIR No. 550 of 2022. He thus submits that the petition is motivated.

7. Mr. Datt, learned counsel appearing for Mr. Sandeep Chaudhary, Mr. Ishwar Singh, Ms.Radha Bhanushali and Mr. Siddharth Bhanushali also joins respondent no.4 and submits that the present petition is nothing but out of rivalry with respondent/applicant. He submits that the respondents would be taking legal recourse to their remedies.

8. Ms.Renu, learned counsel appears for respondent No.3 and also submits that the answering respondent has already sold her portion and is no longer owner of the land in aforesaid Khasra. She also submits that the present petition is only to harass the answering respondent.

9. Considering the facts stated in the status report that demolition action has already been taken on number of occasions, the petition is disposed of with the direction that concerned A.E. (Building) shall ensure that the requisite action is taken in entirety after duly serving all the owners/occupiers who shall also be at liberty to seek their remedies as available under law.

10. Learned counsel appearing for respondent No.2 submits that as and when any request is received for police assistance, the same would be duly provided.

11. Learned counsel appearing for respondent/applicant submits that interim protection be granted so that they can avail remedies in accordance with law.

12. Accordingly, it is directed that no coercive action be taken for a This is a digitally signed order.

13. Petition stands disposed of along with pending applications, if any.

MANOJ KUMAR OHRI, J.

MAY 26, 2023 neelam This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/09/2023 at 10:01:07

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Delhi High Court - Orders