Delhi High Court - Orders
Balbir Singh Saini vs Archaelogical Survey Of India & Ors on 29 July, 2022
Author: Mukta Gupta
Bench: Mukta Gupta, C. Hari Shankar
$~5 (Special DB)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P. (C) 9944/2016
REVIEW PET. 405/2017
BALBIR SINGH SAINI ..... Petitioner
Represented by: Mr.Umesh Mishra, Advocate.
versus
ARCHAELOGICAL SURVEY OF INDIA & ORS...... Respondents
Represented by: Mr.Puneet Jain, Advocate with
Mr.Ashutosh Kumar Pandey,
Mr.Harshvardhan Sharma, Mr.Neeraj
Kumar, Advocates for review
petitioner.
Mr.Kartik Kaushal, Advocate
Mr.Dushyant, Advocate for SDMC.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
HON'BLE MR. JUSTICE C. HARI SHANKAR
ORDER
% 29.07.2022 REVIEW PET. 405/2017
1. This review petition has been filed by Smt. Santosh Saini who was impleaded as respondent No. 4 in W.P.(C) 9944/2016 seeking review of the order dated 13th September 2017.
2. W.P.(C) 9944/2016 came up before this Court on 24th October 2016 when learned counsel for the respondent No. 2 entered appearance and stated that the writ petition was in the nature of a Public Interest Litigation.
Signature Not Verified Digitally Signed By:ATISH GOEL Signing Date:04.08.2022 19:37:023. According to the learned counsel for the petitioner, they were aggrieved by unauthorized and illegal construction which was being carried out at Moth ki Masjid area. Since the writ petition was in the nature of a PIL, it was listed as such. The Division Bench took up the matter on 2nd November 2016 when notice was accepted by learned counsels on behalf of the respondent No. 1-ASI and respondent No. 2-SDMC. Both the learned counsels sought time to take instructions and file short affidavit(s) which was granted. However, no notice was issued to the remaining respondents. On the status report filed by the respondent No. 2-SDMC, the writ petition was disposed of vide order dated 13th September 2017, as under:-
"1. This writ petition has been filed complaining illegal and unauthorized construction in the property bearing No.75, Masjid Moth Village, New Delhi in violation of not only the provisions of the Delhi Municipal Corporation Act, 1957 but also of the Ancient Monuments and Archaeological Sites and Remains Act, 1958.
2. The counter affidavit has been filed by the South Delhi Municipal Corporation submitting that the property bearing No.76, Masjid Moth Village, New Delhi stood booked for unauthorized construction by a notice dated 9th August, 2010 and a demolition order was passed. Pursuant thereto, demolition action was taken on "01/09/2010 at its ongoing stage and demolished columns at Ground floor". Despite this action in 2010, the counter affidavit of the SDMC refers to demolition orders passed in 2016 with regard to the construction from the ground floor to fourth floor. The photographs have been placed by the SDMC on record showing token demolitions. In a status report dated 19th April, 2017, it is stated that on 27th March, 2017 also, certain demolition has been effected.
3. The counter affidavit of the SDMC would show that despite notices issued in 2010, four storey building has not only been permitted but has been continuing and the Signature Not Verified Digitally Signed By:ATISH GOEL Signing Date:04.08.2022 19:37:02 SDMC is propounding untenable excuses for not completing the demolition action pursuant to its own demolition notices. Such construction could not have taken place without connivance of the officials of the SDMC. Even the fact that the demolition has not been completed would suggest complicity with the persons who have carried out the illegal construction. This is even more serious given the fact that the said construction is restricted under Ancient Monuments and Archaeological Sites and Remains Act, 1958.
4. An assurance is given by Mr. Roshan Lal Goel, ld. Standing Counsel for the respondent no.2 SDMC that the demolition of the entire structure shall be completed at the earliest. Let the same be complete within a period of two months from today and a report be filed in this court thereafter with advance copy to the petitioner.
5. This writ petition and application are disposed of in the above terms.
6. It is made clear that if the action in terms of the notices and orders of the SDMC, as noted above, is not carried out, stringent action shall be taken against the person responsible for the same.
Dasti".
4. A perusal of the order under review dated 13th September 2017 would show that though it referred to the illegal and unauthorized constructions at property bearing No. 75, Masjid Moth Village, New Delhi in the first paragraph, however, counter affidavit of the SDMC stated about property bearing No. 76, Masjid Moth Village, New Delhi. The review petitioner is the owner of the property bearing No. 75, Masjid Moth Village, New Delhi. As noted above, no notice of W.P.(C) 9944/2016 was issued to the review petitioner. However, the writ petition was disposed of taking the assurance of the learned counsel for the SDMC on record that the demolition of the entire structure shall be complete at the earliest and it was directed to be Signature Not Verified Digitally Signed By:ATISH GOEL Signing Date:04.08.2022 19:37:02 completed within a period of two months from the date of the order.
5. According to the learned counsel for the SDMC, in the meantime, after filing W.P.(C) 9944/2016, another writ petition being W.P.(C) 10839/2016 titled as 'Manoj Kumar Vs. SDMC & Ors.' was filed wherein, Smt. Santosh Saini, the review petitioner herein, filed an application for impleadment and it was informed that already a petition being W.P.(C) 9944/2016 was pending. W.P.(C) 10839/2016 was dismissed in view of the pendency of the W.P.(C) 9944/2016. Thus, according to the learned counsel, before the order dated 13th September 2017 was passed, Smt. Santosh Saini knew about the pendency of W.P.(C) 9944/2016.
6. Be that as it may, since no notice was issued in W.P.(C) 9944/2016 to Smt. Santosh Saini, no orders adverse to her interest, could have been passed without hearing her.
7. Learned counsel for the petitioner Balbir Singh Saini states that in the meantime, Balbir Singh Saini had passed away. Since the lis is now between the respondent No. 4/review petitioner Smt. Santosh Saini and the respondent No. 2 SDMC in the present petition, presence of Balbir Singh Saini or any of his legal heir(a) is not required.
8. Consequently, the order under review dated 13th September 2017 is recalled vis-à-vis property of Smt. Santosh Saini bearing No. 75, Masjid Moth Village, New Delhi and the writ petition is revived vis-à-vis the property bearing No. 75, Masjid Moth Village, New Delhi.
9. Review petition is disposed of.
W.P. (C) 9944/2016
1. Respondent No. 2/SDMC will file a reply affidavit/status report in Signature Not Verified Digitally Signed By:ATISH GOEL Signing Date:04.08.2022 19:37:02 relation to the unauthorized construction carried out in the property No. 75, Masjid Moth Village, New Delhi within three weeks.
2. Rejoinder affidavit thereto, within one week thereafter.
3. Since the Review Pet. 405/2017 has been disposed of, W.P.(C) 9944/2016 to the extent it relates to property of the respondent No. 4 be now listed before the Roster Bench, subject to orders of Hon'ble the Chief Justice on 14th October 2022.
4. Order be uploaded on the website of this Court.
MUKTA GUPTA, J.
C. HARI SHANKAR, J.
JULY 29, 2022/akb Signature Not Verified Digitally Signed By:ATISH GOEL Signing Date:04.08.2022 19:37:02