Delhi High Court
Chatter Bhuj vs Municipal Corporation Of Delhi on 1 May, 1996
Equivalent citations: 1996(37)DRJ603
Author: M.S.A. Siddiqui
Bench: M.S.A. Siddiqui
JUDGMENT M.S.A. Siddiqui, J.
(1) By this petition under Article 226 of the Constitution, the petitioner seeks a direction to the respondent No. I and 2 to perform their statutory duties and stop any unauthorized/illegal construction on 1st and 2nd floor of the property No. EA-114, Inderpuri, New Delhi and to demolish the unauthorised construction alleged to have been made on the 1st and 2nd floor of the said building by the respondent Nos. 3 to 6.
(2) Brief facts leading to filing of this writ petition are that the petitioner purchased the ground floor of the property No. Ea - 114, Inderpuri, New Delhi from its previous owner Mrs Sonia Gupta through the registered deed dated 12-6-1995. The respondent No. 4 S.K. Chopra purchased the first and 2nd floor of the said building through a registered sale deed dated 4-1- 1995. According to the petitioner the respondent No. 3 to 6 unauthorisedly commenced construction work on 1st and second floor of the said property without obtaining any sanction and despite repeated representations, the respondent No. 1 and 2 have not taken steps for demolition of the said unauthorized construction.
(3) The averments made in the reply filed on behalf of the respondent No. 4 are that the plans for carrying on constructiton in the property in question had already got sanctioned by its previous owner and accordingly the construction was commenced by the respondent No. 4 before the petitioner purchased the ground floor. It is stated that the petition or himself had unauthorisedly constructed upon the ground floor by raising two shops in front and two at the back which have already been sold out by him. The petitioner has supressed these facts and has not come to the Court with clean hands.
(4) The respondent No. 1 has stated in its reply that on 17-11-1994 a plan was submitted to construct a residential building on the property in question and in accordance with the provision of the master plan of Delhi and the building bye- laws, the building plan was sanctioned on 9-1- 1995. The said plan permitted coverage on the ground floor to the extent of 60%, on 1st floor to the extent of 60% and on the second floor to the extent of 40%. On 17-10-1995 this court has ordered that the respondents 3 to 5 shall remain restrained from proceedings with any construction on roof of the flat and any construction on the first floor which is not authorised and the respondents No. 1 & 2 were directed to enforce the said order. Accordingly on 20-10-1995, inspection was made and it was found that apart from deviation from the sanctioned plan there was excess coverage on the ground floor, first floor and the second floor to the extent of 100%. (vide report of inspection annexure R-1). Thereafter, on 20-10- 1995 notice under Section 343 of the Dmc Act was pasted on the property in question and thus the parties were put on notice requiring the deviations and excess coverage on the ground, first and second floors to be brought within the sanctioned limit, (copy of the notice is annexure R-2). Despite service of the said notice nothing was done by the parties concerned in this regard. Consequently, another show cause notice under Section 343 of the Dmc Act was served for demolition of the unauthorised construction (copy of the notice is annexure R-3). Despite service of the said notice parties did not demolish the unauthorised construction. Since there was excess coverage that had been made and the same was not compoundable and could not be regularised in terms of the building bye-laws, an order of demolition was passed On 3-11-1995 in respect of the property in question (annexure R-4). It is also submitted that the building in question has not been constructed in accordance with the sanctioned plan and the entire building is liable to be demolished.
(5) It is pertinant to mention here that the respondent No. 4 filed an application (CM 246/96) for vacation of the order passed on 17-10-1995 in Cm 6464/95. It was stated in that application that the construction work, which respondent No. 4 wanted to carry on, Was almost complete and only 10% work, namely, finishing work was left out which was being completed. Vide orders dated 11-1-1996 this Court modified the order dated 17-10-1995 and the respondent No. 4 was allowed to complete the construction work subject to the condition of his furnishing an undertaking to the Court that on completion of the construction, if any deviations are found from the sanctioned plan, he will abide by the decision of respondents No. 1 & 2 and pay compounding fee, if payable, for regularisation of the deviations and if the same are not compoundable, he will demolish the same at his own cost.
(6) On a perusal of the affidavit filed on behalf of the respondent No. 1 and the documents annexed thereto it appears that the building in question has not been constructed in accordance with the sanctioned plan. On the ground floor only 60% coverage was permissible in accordance with the sanctioned plan but on inspection the coverage on the ground floor was found to the extent of 100%. Admittedly, the petitioner is owner of the ground floor. The petitioner has also commercialised some portion of the building by converting the same into shops, when sanction was for residential purpose. The petitioner has supressed these material facts from this Court. It follows that the petitioner has not come to the Court with clean hands. No person can be permitted to take advantage of his own wrong and the Court will not come to the aid of such a person. According to the respondent No. I there is excess coverage on the first and second floor of the building and these deviations are not compoundable and cannot be regularised in terms of the building bye-laws. In short the building in question has been constructed in violation of the building bye-laws and in contravention of sanctioned plan. These deviations and excess coverage on the ground, first and second floors have to be brought within the sanctioned limit (See Anil Kumar Khurana Vs. Mcd, 1996 (1) Ad (Division Bench) 749). In this connection, I may usefully except the following observations made in Anil Kumar Khurana's case (supra) :- "The unauthorised construction and unauthorised user of residential buildings for commercial purposes in Delhi has gained alarming proportion and crossed all limits. At the very outset I may state that these activities are against the interest of the society and need to be dealt with firmly."
(7) It has to be borne in mind that in this petition what the petitioner is seeking is mere performance of statutory obligation of the respondent No. 1 & 2. It has to be borne in mind that the power conferred by Article 226/227 is designed to effectuate the law, to enforce the Rule of law and to ensure that several authorities and organs of the State act in accordance with law. In the instant case despite service of successive notices the parties have not demolished the unauthorized construction and consequently on 3-11-1995 the respondent No. 1 has passed an order of demolition in respect of the property in question (annexure R-4).
(8) Accordingly, the writ petition is disposed of by issuing a direction to the respondent No. 1 & 2 to perform their statutory duty by taking appropriate action in accordance with law to demolish the unauthorised construction in the building in question within a period of six weeks from the date of this order. No order as to costs.