Delhi High Court - Orders
Khalid Rehman vs The Commissioner Municipal ... on 7 March, 2023
Author: Manoj Kumar Ohri
Bench: Manoj Kumar Ohri
$~46
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 15371/2022, CM APPL. 47728/2022
KHALID REHMAN ..... Petitioner
Through: Mr. M.S. Khan, Mr. Daniyal Ayyubi
and Mr. Arshyan, Advocates.
versus
THE COMMISSIONER MUNICIPAL CORPORATION OF DELHI
& ORS. ..... Respondents
Through: Mr. Ajay Digpaul, Mr. Kamal
Digpaul and Ms. Swati Kwatra,
Advocates for MCD.
Mr. Noor Alam and Mr. Nizamuddin,
Advocates for respondent No.3.
Mr. Mobin Akhtar, Advocate for
owners/occupants of subject property.
CORAM:
HON'BLE MR. JUSTICE MANOJ KUMAR OHRI
ORDER
% 07.03.2023
1. The present petition filed under Article 226 of the Constitution of India relates to unauthorised construction statedly carried out by respondent No. 3 at property bearing No. 337C/16 (Old) C-31 (New), Gali No. 6, Batla House, Jamia Nagar, New Delhi - 110025.
2. Status Report has been placed on record which reads as under :-
"3. That, in order to comply with the directions of this Hon' ble Court, site has been inspected by the concerned field staff of the Building Department, Central Zone. During inspection, subject property has been identified as Property No. 337-C/1S & 16, Batla House, New Delhi. The status as noticed on inspection of the subject property and perusal of record is entailed herein below:-
i. On inspection it has been noticed that the subject property consists of Ground Floor to Fifth Floor and the same is Digitally Signed By:SANGEETA ANAND Signing Date:10.03.2023 14:56:36 residentially occupied. Photographs showing the present status of the property are annexed herewith as Annexure: A. ii. On consulting the office record, demolition proceedings against this property found initiated u/s 3431344 of the DMC Act vide U/c file No. 276/BIUCIEE(B)-IICNZl2020 dated 22.11.2020 and 20/BIUCIEE(B)-I/CNZl2022 dated 19.0 1.2020. After following due process of demolition order also stand on 10.11.2020 and 07.02.2022, respectively. Copies of demolition order passed on 10.11.2020 and 07.02.2022 are annexed herewith as Annexure: B (Colly).
iii. Sealing proceedings u/s 345-A of the DMC Act was also initiated against this property and after following due process of law, sealing order also stand passed vide No. 11862/B/Seal/2023 on 25.02.2023. Copy of sealing order passed on 25.02.2023 is annexed herewith as Annexure: C. iv. Further a letter bearing No. D/153/AE(B)IV/CNZ/2020 dated 10.11.2020 has been sent to the concerned authorities of BSES & Delhi Jal Board for disconnection of electricity and water supply. A copy of the said letter has also been endorsed to the Sub-Registrar with the request not to register this property under Indian Registration Act, 1908. Copy of letter sent to the BSES, DJB and Sub-Registrar on 10. 11.2020 is annexed herewith as Annexure: D. v. In order to prevent further unauthorised construction at subject property a work stoppage letter u/s 344(2) of the DMC Act was sent to the SHO, PS Jamia Nagar with the request that the unauthorised construction activity at subject property be stopped immediately and workmen present in the premises be removed and the construction material including the tools, machinery etc involved in the execution of work may be seized forthwith, so that no further unauthorized construction can be carried out at the site. Copy of letter u/s 344 (2) of the DMC Act dated 10.11.2020 is annexed herewith as Annexure: E. Digitally Signed By:SANGEETA ANAND Signing Date:10.03.2023 14:56:36
4. That, pursuant to demolition order passed, demolition action against this property was taken by the answering respondent MCD on 19.01.2022. During the action, 06 number of RCC panels of the roof of first floor were cut with the help of gas cutter and brick work was also demolished. Photographs showing the demolition action taken by the department are annexed herewith as Annexure: F.
5. That, after demolition on 19.01.2022, a letter bearing No. D/268/AE(B)-I/CNZ/2022 dated 20.01.2022 was sent to the SHO, PS Jamia Nagar with the request to keep strict vigil over this property, so that Owner/ Builder may not be able to restore/ reconstruct the demolished portion. Copy of letter sent to SHO, PS Jamia Nagar dated 20.01.2022 to keep strict vigil is annexed herewith as Annexure: G.
6. That, sealing action against this property has also been taken on 01.03.2023. During the action, one room at ground floor was sealed at two points. Action against rest of the property could not be taken, as the same was found occupied. Accordingly, a vacation notice U/S 349 of the DMC Act bearing No. D/550/ AE(B)-IV/CNZ/2023 dated 02.03.2023 been issued and a copy of the same has also been endorsed to the SHO, PS Jamia Nagar with the request to get the property vacated. Copy of vacation notice dated 02.03.2023 is annexed herewith as Annexure: H.
7. That, further action against this property has been planned for 23.03 2023. Action against this property shall be taken on 23.03.2023, subject to availability of police force and vacation of the property."
3. Mr. Mobin Akhtar, learned counsel enters appearance on behalf of Mohd. Rafiq, Mr. M.A. Khan, Mr. Mustaq, Mr. Israt Jahan and Mohd. Fahad, who are stated to be occupants of the subject property. Learned counsel submits that the answering occupants are in receipt of notice dated Digitally Signed By:SANGEETA ANAND Signing Date:10.03.2023 14:56:36 02.03.2023 issued under Section 349 of the DMC Act. Learned counsel, on instructions, submits that the aforesaid occupants undertake not to carry out any construction in the subject property which is not in accordance with law. The statement made on behalf of these occupants is taken on record and they are made bound by the same. Learned counsel, on further instructions, submits that the aforesaid occupants intend to assail the demolition proceedings before the Appellate Tribunal, MCD. He prays that the interim protection may be granted to these occupants till such appeal is filed before the ATMCD.
4. In view of the above, present petition is disposed of with the directions that no coercive steps be taken against the aforesaid occupants in pursuance of the impugned notice dated 02.03.2023 for a period of two weeks from today in order to enable them to approach the Appellate Tribunal. It is however clarified that continuation of the protection granted shall be sought from the ATMCD in the appeal proceedings to be filed, if any.
5. Needless to state that respondent No. 1/Corporation is duty bound to carry out the requisite action, however the same shall be subject to outcome of appellate proceedings to be filed before the ATMCD if any, and till then the notice under Section 349 of the DMC Act shall be kept in abeyance. Miscellaneous application is disposed of as infructuous.
MANOJ KUMAR OHRI, J MARCH 7, 2023 ga Digitally Signed By:SANGEETA ANAND Signing Date:10.03.2023 14:56:36