Delhi High Court - Orders
Sh. Rishipal Lohiya vs Sh. Gyanesh Bharti, The Comissioner ... on 17 May, 2024
$~91
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CONT.CAS(C) 974/2021
SH. RISHIPAL LOHIYA ..... Petitioner
Through: Mr. Sunil Chaudhary, Advocate.
versus
SH. GYANESH BHARTI, THE COMISSIONER SOUTH DELHI
MUNICIPAL CORPORATION ..... Respondent
Through: Mr. Ajjay Arora, Mr. Kapil Dutla, Mr.
Vansh Luthra and Ms. Simran Arora,
Advocates for MCD.
CORAM:
HON'BLE MS. JUSTICE MINI PUSHKARNA
ORDER
% 17.05.2024
1. A fresh Status Report has been filed by the Municipal Corporation of Delhi ("MCD") yesterday, i.e. 16th May, 2024.
2. The said Status/Action Taken Report filed on behalf of the MCD, reads as under:
"
Sl. DDA Type of deviations booked Action Taken / Remarks No. Flat
1. Flat U/c in the form of deviations in The Appellate Tribunal vide order No.8 original allotted structure. dated 24/11/2022 in Appeal File No.575/2022 titled "Pawar Gaur No.163/B/UC/EE(B)II/CNZ/18 V/s SDMC" granted protection to dated 14/03/2018 the alleged booked structure protected under "The National Capital Territory of Delhi Laws (Special Provisions) Second (Amendments) Act, 2020" during moratorium period i.e. up to 31/12/2026.
2. Flat U/c in the form of deviations in The owner had challenged 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 23/05/2024 at 20:36:04 No.16 original allotted structure. demolition order before Appellate File Tribunal by filing Appeal No.165/B/UC/EE/(B)II/CNZ/18 No.257/2018 titled "Rekha Ramola dated 15/03/2018 V/s SDMC". The Tribunal vide order dated 06/06/2018 restrained SDMC from taking any coercive action. The Tribunal vide order dated 01/12/2023 set aside the demolition order with the observation that respondent/MCD is at liberty to issue fresh show cause notice to the appellant, if there exist any deviations, in accordance with law.
Pursuant to above order, answering respondent has initiated fresh demolition proceedings u/s 343/344 of the DMC Act vide File No.111/B/UC/EE(B)II/CNZ/2024 dated 15/05/2024 against unauthorized construction/structure, which do not form part of standard plan i.e.
(i) extension of varanda (Back side)(ii) Covering of front balcony
(iii) Covering of common area (back side) by extending slab at first floor level (iv) u/c of staircase to provide an access to roof o first floor.
The show cause notice dated 15/05/2024 has been issued.
Further action is under contemplation as per provisions of DMC Act. Action will be planned as soon as demolition proceedings are concluded and orders passed.
3. Flat U/c in the form of deviations in The Hon'ble Tribunal vide order No.23 original allotted structure dated 09/02/2023 passed in Appeal 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 23/05/2024 at 20:36:04 No.530/2018 titled "Kamal Kishore File Sharma V/s SDMC" quashed the No.164/B/UC/EE(B)II/CNZ/18 demolition order and remanded the dated 15/03/2018 case back for fresh decision.
During fresh demolition
proceedings, the alleged booked
unauthorized construction found
protected under "The National
Capital Territory of Delhi Laws
(Special Provisions) Second
(Amendment) Act, 2020"
Consequently protection has been
considered/granted during
moratorium period i.e. up to
31/12/2026.
4. Flat U/c in the form of deviations in The owner had challenged the
No.35 original allotted structure. demolition order before Appellate
File Tribunal by filing Appeal
No.725/B/UC/EE(B)II/CNZ/19 No.363/2019 titled "Munni Devi dated 18/09/2019 V/s SDMC". The Tribunal vide order dated 29/11/2019 restrained SDMC from taking any coercive action. The Tribunal vide order dated 26/04/2023 dismissed the appeal. Pursuant to dismissal of appeal, the answering respondent has planned demolition action, which shall be carried out on 10/06/2024.
5. Flat U/c in the form of deviations in The owner had challenged the No.36 original allotted structure. demolition order before Appellate Tribunal by filing Appeal File No. No.637/2019 titled "Dayanand 726/B/UC/EE(B)II/CNZ/19 Sharma V/s SDMC". The Tribunal vide order dated 29/11/2019 restrained SDMC from taking any coercive action The Tribunal vide order dated 04/04/2024 set aside the demolition 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 23/05/2024 at 20:36:05 order with the observation that respondent/MCD is at liberty to issue fresh show cause notice to the appellant, if there exist any deviations, in accordance with law.
Pursuant to above order, answering respondent has initiated fresh demolition proceedings u/s 343/344 of the DMC Act vide File No.112/B/UC/EE(B)II/CNZ/2024 dated 15/05/2024 against unauthorized construction / structure, which do not form part of standard plan i.e. (i) extension of varanda (Back side) (ii) Covering of common open area (back side) by extending slab at first floor level.
The show cause notice dated 15/05/2024 has been issued.
Further action is under contemplation as per provisions of DMC Act. Action will be planned as soon as demolition proceedings are concluded and orders passed.
6. Flat U/c in the shape of second Action was planned to execute the No. 7 floor and deviations in original demolition order on 11/10/2019 & allotted structure. 12/12/2019. However, due to non-
availability of police force from PS- File No. Badarpur, said program could not 724/B/UC/EE(B)II/CNZ/19 be materialized.
dated 18/09/2019 The demolition action was carried on 22/10/2019, 13/07/2022 and 14/07/2022. During these programs, the answering respondent carried out demolition action against booked deviations/unauthorized construction. The same is lying in 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 23/05/2024 at 20:36:05 demolished condition. Photographs showing the current status are annexed herewith as Annexure-A.
7. Flat U/c in the form of deviations in Action was planned to execute the No.48 original allotted structure. demolition order on 12/12/2019 and thereafter on 15/01/2020.
File No. However, due to non-availability of 167/B/UC/EE(B)II/CNZ/18 police force from PS-Badarpur, dated 16/03/2018 said program could not be materialized.
The demolition action was carried on 13/07/2022. During said program, the answering respondent carried out demolition action against booked deviations/unauthorized construction carried out in the flat. The same is lying in demolished condition. Photographs showing the current status are annexed herewith as Annexure-B.
8. Flat U/c in the form of deviations in Demolition order was executed on No.4 original allotted structure. 09/09/2019. During said program, deviation in the shape of RCC and File No. brick work of staircase partly 162/B/UC/EE(B)II/CNZ/18 demolished and steel railing also dated 14/03/2018 demolished and removed at first floor. The action at second floor could not be taken as the premise was found locked.
Further demolition action was carried on 14/07/2022. During said program, the answering respondent carried out demolition action against booked deviations/unauthorized construction carried out in the flat. The same is lying in demolished condition. Photographs showing 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 23/05/2024 at 20:36:05 current status are annexed herewith as Annexure-C.
9. Flat U/c in the form of deviations in Action was planned to execute the No.31 original allotted structure. demolition order on 12/12/2019 and thereafter on 15/01/2020.
File No. However, due to non-availability of 166/B/UC/EE(B)II/CNZ/18 police force from PS-Badarpur, dated 16/03/2018 said program could not be materialized.
On 13/07/2022 the answering started demolition of alleged booked staircase. However, soon after the start of demolition action, it was brought to the notice of answering respondent that there is stay against demolition order of staircase given vide order dated 03/12/2018 title "Sanjeev Kumar Mishra V/s South DMC & Anr.". As such further demolition action could not be taken. Presently staircase has been partly demolished. The Hon'ble Court vide order dated 26/08/2022 dismissed the appeal as withdraw.
Since alleged booked staircase was partly demolished, the answering respondent has planned action, which shall be carried out on 10/06/2024.
3. That it is most respectfully submitted that the cause of litigation on the part of the petitioner pertains to unauthorized construction carried out in as many as 09 DDA LIG Flats, Badarpur, New Delhi. The answering respondent has already filed its Action Taken Report regarding the unauthorized construction carried out in the subject properties and actions initiated vis-à-vis the said properties. Since some new developments have taken place pursuant to the outcome of appeals filed by the concerned owner of subject properties, the up 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 23/05/2024 at 20:36:05 to date status of each property is submitted."
3. Perusal of the aforesaid Action Taken Report filed on behalf of the MCD with respect to nine DDA LIG Flats, Badarpur, New Delhi, shows that with respect to Flat No.8, it is stated that the booked structure is protected under the National Capital Territory of Delhi Laws (Special Provisions) Second (Amendment) Act, 2020. Thus, it is submitted that the moratorium period in terms of the aforesaid Act, and the protection to the said property, is up to 31st December, 2026.
4. With respect to Flat No. 16, it has been clearly stated that Show Cause Notice dated 15th May, 2024 has been issued. It is submitted that demolition action shall be taken in accordance with law, after receipt of reply and further proceedings.
5. As regards Flat No. 23, it is again stated that the construction existing therein, is protected under the National Capital Territory of Delhi Laws (Special Provisions) Second (Amendment) Act, 2020, the validity of which Act, is till 31st December, 2026.
6. With respect to Flat No.35, it is stated that the demolition action is fixed for 10th June 2024.
7. With respect to Flat No. 36, it is stated that the Show Cause Notice dated 15th May, 2024, has been issued and the action shall be taken after conclusion of the demolition proceedings.
8. As regards Flat No.7, it is submitted that the demolition action has already been taken by the DDA on 22nd October, 2019, 13th July, 2022 and 14th July, 2022. It is submitted that the construction in the said flat is lying in a demolished condition.
9. As regards to Flat No.48, it is again submitted that demolition action 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 23/05/2024 at 20:36:05 was carried out on 13th July, 2022 and that the said flat is lying in the same demolished condition.
10. As regards to Flat No.4, it is submitted that demolition action has already been taken on 09th September, 2019 and 14th July, 2022, and that the said flat is lying in the demolished condition.
11. As regards to Flat No.31, it is submitted that the demolition action has been planned for 10th June, 2024.
12. Learned counsel for the respondent-MCD submits that a time bound action shall be taken against the existing unauthorised construction in the aforesaid flats, after following the due procedure, in accordance with law.
13. Considering the aforesaid, it is manifest that the MCD has already taken action in some properties and with respect to other properties, requisite action has already been commenced, in accordance with law, against the unauthorised construction existing in the flats in question.
14. The MCD is bound by its undertaking that appropriate action shall be taken against the existing unauthorised construction in the flats in question.
15. It is directed that requisite action shall be completed by the MCD expeditiously, preferably within a period of three months from today.
16. With the aforesaid directions, the present petition is disposed of, however, with liberty to the petitioner to revive the petition, in case the petitioner is still aggrieved.
MINI PUSHKARNA, J MAY 17, 2024/MR 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 23/05/2024 at 20:36:05