Delhi High Court - Orders
Sh. Mirza Rashid Beg vs Archeological Survey Of India And Ors on 28 February, 2023
$~14.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 10925/2017 and C.M. Nos. 44683/2017 & 50634/2022
SH. MIRZA RASHID BEG ..... Petitioner
Through: Mr. Rajeev Saxena, Mr. Siddhant
Luthra and Mr. S.A. Khan,
Advocates.
versus
ARCHEOLOGICAL SURVEY OF INDIA
AND ORS. ..... Respondents
Through: Mr. Jitesh Vikram Srivastava (SPC),
Mr. Prajesh Vikram Srivastava and
Dr. Pradeep Kumar Pandey,
Advocates for R-1 to 3.
Ms. Avni Singh, Advocate for R-4.
Mr. Praney Jain and Mr. Manoj
Gupta, Advocates for R-5 & 6.
CORAM:
HON'BLE MR. JUSTICE GAURANG KANTH
ORDER
% 28.02.2023 The hearing has been conducted through hybrid mode (physical and virtual hearing).
1. The present writ petition has filed with the following prayer:-
"(i) issue an appropriate writ, direction or order thereby declaring the permission of repair and renovation granted by the Respondent No. 3 vide its letter No12/075/2016-
CA/Delhi/UID:1562.68 dated 29.02.2016 to the Respondent No7 as illegal, unlawful, void and being in violation of its own rules, regulations and norms as permissible under the AM & ASR Act, 2004.
(ii) issue an appropriate writ, direction or order thereby Signature Not Verified Digitally Signed By:KOMAL DHAWAN Signing Date:06.03.2023 17:08:04 directing the Respondents No. 1 to 6 to take necessary legal action against the entire unauthorized, illegal and unlawful construction raised by the Respondent no. 7 n the property No. 1490-91, Near Ritz cinema, Old Court Road, Kashmere Gate, Delhi as shown in the Site Plan in red color and to issue necessary orders for demolition order of the entire unauthorized construction as booked vide file no.35/EE/(B)/CLZ/2010 dated 08.04.2010 directing the Respondent No. 7 to restore the property in question to its original shape, size, ambience and structural design.
(iii) issue an appropriate writ, direction or order thereby directing the Respondent No. 1 to 6 to act in strict compliance of the statutory mandate of the Ancient and historical Monuments and Archeological Sites and Remains Act, 2004 ensuring legal and lawful action against the entire unauthorized construction carried out by the Respondent No. 7 in violation of the Ancient Monuments Preservation Act, Delhi Municipal Corporation Act, its Unified Building Bye-laws MPD-2021 and to restore the entire building to its original shape, size and structural ambience and to cause necessary repair and renovation to the portion of the petitioner and other portions as have been affected and/or damaged by the illegal, unlawful and unauthorized construction raised by the Respondent No. 7.
(iv) issue an appropriate writ, direction or order thereby permanently restraining the Respondents and more particularly the Respondent no. 7, its agents, partners, servants, employees, contractors, builders from raising illegal and unauthorized construction upon the property bearing no. 1490-91, Near Ritz Cinema, Old Court Road, Kashmere Gate, Delhi under its use, occupation and possession and to restore the said property to its original shape, size and structural ambience.
(v) issue any such other appropriate writ, direction or order as this Hon'ble Court may deem fit, in the facts and circumstances f the case, in the interest of justice, equity and fair trial."
2. Respondent No. 2 and 3 have filed the status report in compliance of the order dated 24.11.2022, whereas no affidavit is filed on behalf of respondent Nos. 5 and 6 despite sufficient time granted by this court. Though, today learned counsel for the respondent Nos. 5 and 6 states that he Signature Not Verified Digitally Signed By:KOMAL DHAWAN Signing Date:06.03.2023 17:08:04 has filed a brief short status report, however, the same is not on record. Learned counsel for the respondent Nos. 5 and 6 will take steps to bring the same on record and also supply a copy of the status report to the learned counsel for the petitioner.
3. The respondent Nos. 2 and 3 have filed their affidavit, inter alia, stating as follows:
"10. That in the present matter, the concerned property is addressed as Property no. 1490-91 (Part), Near Ritz Cinema, Kashmiri Gate, Delhi. That in the present property a show cause notice was issued against the property by Delhi Circle regarding certain violations committed by the then property owner in 2010. That as per the then procedure and practice, the said Show Cause Notice was issued and was provided to DG, ASI and the Police authorities. The copy of the Show Cause notice dated 10.09.2010 is annexed as ANNEXURE R-3.
11. That the property is located within 100 m of the protected structure at a distance of 40 m, hence being within no construction is allowed but only renovation/repair work is allowed with prior permission from Competent Authority.
12. That in 2016, the application for renovation/repair in the said property was applied by the then owners M/s Supreme Courier Service, and as per the then procedure, it was to identify whether any litigation was ongoing against the said property or not, and as it was verified by the authority that no litigation was pending against the said property was granted permission for renovation/repair of the property was granted. The permission for Repair/Renovation given in 2016 is annexed ANNEXURE R-4.
13. That in 2017 two inspection were conducted, one jointly by Competent Authority, NCT of Delhi, Puratatva Bhawan, D-Block, 1st Floor, INA New Delhi and Delhi Mini Circle. Second was conducted by team of Delhi Mini Circle. That in those inspections, it was identified that violations against the permission given in 2016 and under the AMASR Act were committed by constructing mumty and rising the height of pararpet wall by the M/s Supreme Courier Service. The copies of the both Inspection notes issued in 2017 are annexed as ANNEXURE R-5.
14. That in 2017 based on the inspection, Show Cause Notice under the AMASR Act was issued against the violations committed to the then owner. That the copy of the same was sent to MCD, DG (ASI), L.G., COUNTER-AFFIDAVIT (Kashmiri Gate), NMA, Dy.Signature Not Verified Digitally Signed By:KOMAL DHAWAN Signing Date:06.03.2023 17:08:04
Commissioner Revenue. That hence MCD was intimated about the violations with the request take necessary actions. The copy of the Show Cause Notice AND Copy of letter MCD in the year 2017 are annexed as ANNEXURE R-6.
15. That it is submitted that on 23.11.2022, the site property was inspected by the Sub-Circle In-Charge, Kashmiri Gate. That it was informed that as on that date, no active work was ongoing in the property, that only the previous violations were present. The copy of the inspection note dated 23.11.2022 is annexed as ANNEXURE R-8.
16. That after the date of the hearing i.e. 24.11.2022 a joint inspection was conducted jointly by ASI and MCD. That it was observed that: The copies of the joint inspection note dated 01.12.02022 is annexed as ANNEXURE R-9.
a. That in the year 2016 M/s Supreme courier Service through it partners Shri. Suresh Chander Mishra and Shri. Ashok Kumar Mishra of 1490-1491 (part) Near Ritz Cinema, Kashmiri Gate, Delhi was granted permission by the Competent Authority for repair and renovation in accordance with the plan, section and elevation without changing its exterior limit of the existing structures both vertically and horizontally. That as per the approved drawing, the height of the building as per the elevation section was 39.4 1/2ft (12m approx.) and the approved covered area of the 1st and 2nd Floor was 216.925 Sq m respectively. (total PLOT AREA IS 286.00 sqm) b. That during the inspection it was found that total height of the building form the ground level to the terrace was raised to 13.40m whereas with the water tank (mumty) the total height of the said property from ground level was (13.40+4.47)m= 17.87 m approx... The height taken manually with the help of measuring tapes. c. That regarding the unauthorized construction in the form of excess coverage area at the first floor and second floor by extending the covered portion and bringing the balcony into the covered area in the property 1490-91 (part) Near Ritz Cinema, Kashmiri gate in the Hon'ble High Court in 2009. The order of demolition as passed by MCD was further challenged in the Hon'ble Appellate Tribunal by the owner in 2010. The Hon'ble Appellate Tribunal vide order dated 21.07.2010 squashed impugned demolition order and hence forth no further action was taken by MCD. That as of now MCD has taken no further action against the unauthorized covered area of the said property with reference to Hon'ble Appellate Tribunal Signature Not Verified Digitally Signed By:KOMAL DHAWAN Signing Date:06.03.2023 17:08:04 order passed in 2010.
d. That ASI issued Show Cause to the property owner of 1490-91 for violation of NOC in the year 2017 and as per the present joint inspection conducted on 1.12.2022 it is seen that compliance has not been carried by the owner, the violation still exists. the matter may now be processed for issuance of demolition notice under Sub rule 38(1) of AMASR Act and MCD may take action as per the agreed upon that and assured to take necessary action as per the fresh notice issued by ASI post the Joint Survey. This office has requested to directorate office for issuing notice under (38) 1 of AMASAR. Copy of the letter requesting for issuance of notice under section 38(1) AMASAR Act has been marked as ANNEXURE- R10 e. Property No: 1488 near Ritz cinema, Kashmiri Gate, Delhi also inspected by the team o ASI. This property belongs to petitioner Sh. Mirza Rashid Beg who is also carrying out the unauthorized construction in prohibited area of City Wall a Centrally Protected Monument. The property is a commercial establishment. The owner has unlawfully conducted deep digging inside the property (basement area) without permission. The digging inside has disturbed the foundation level of the building as seen in the report. The inspection team observed that observed that on the day of the inspection work was stopped. The floor was covered with heaps of rubbish (debris), the large cavity which was created for the digging was covered with the debris heap. Sub-circle in charge has issued Stop work notice to the owner and has placed a police complaint in the nearby police station. Show Cause notice has been issued in this regard. The copy of the Show Cause notice issued on dated 19.01.2023 is annexed as ANNEXURE- R11 f. That in the present matter, the request to the higher authorities for issuance of removal of encroachment under the S. 38(1) has been made and the approval of the same is accordingly awaited. That after the approval and intimation to the MCD, MCD has assured to undertake necessary actions for removal of unauthorized constructions and the violations. That in the property of 1488, the necessary notices have been issued and the concerned agencies have also been duly informed."
4. In view of the affidavit filed by the respondent Nos. 2 and 3, it is Signature Not Verified Digitally Signed By:KOMAL DHAWAN Signing Date:06.03.2023 17:08:04 evident and admitted that an unauthorised construction has been carried out at this site. Hence, the respondents are directed to complete the contemplated action within a period of four weeks from today.
5. Respondent Nos. 2 and 3 as well as respondent Nos. 5 and 6 will file up-to-date status report indicating the action taken by the said respondents within six weeks.
6. List for consideration on 14.04.2023.
GAURANG KANTH, J FEBRUARY 28, 2023 MS Signature Not Verified Digitally Signed By:KOMAL DHAWAN Signing Date:06.03.2023 17:08:04