Delhi High Court - Orders
Waseem Ahmed vs Municipal Corporation Of Delhi & Ors on 15 February, 2023
Author: Manoj Kumar Ohri
Bench: Manoj Kumar Ohri
$~8
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 14226/2022 and CM APPL. 43455/2022 (Interim Stay)
WASEEM AHMED ..... Petitioner
Through: Mr.S.D. Ansari and Mr. I. Ahmed,
Advocates with petitioner in person
versus
MUNICIPAL CORPORATION OF DELHI & ORS. ..... Respondents
Through: Mr. Divye Chugh, Advocate for MCD
Mr. Anurag and Ms. Shubham Sharma, Advocates
for respondent No.2
CORAM:
HON'BLE MR. JUSTICE MANOJ KUMAR OHRI
ORDER
% 15.02.2023
1. By way of the present petition filed under Article 226 of the Constitution of India, the petitioner is aggrieved by the illegal and unauthorised construction statedly carried out at behest of respondents No.3 to 6 at property bearing No. 9763, situated at Gali Neem Wali, Nawab Ganj, Azad Market, Delhi-110006 (hereinafter, referred to as the 'subject property').
2. Learned counsel for respondent No. 1/MCD submits that a Status Report has been filed, though the same is not on record. He has handed over a copy of the Status Report which is taken on record. The same reads as under:-
"3. That it is respectfully submitted that as per record, the unauthorized construction in the property bearing no.9763, Gali Neem Wali, Nawab Ganj, Delhi, in the shape of entire ground floor, first floor, second floor, third floor and fourth floor has been booked under section 343 & 344 of the DMC Act vide file no.159/UC/83-N/EE(B)-II/CSPZ/2021 dated 10.12.2021 and a show cause notice dated 10.12.2021 was issued to Owner/Builder to show cause as to why demolition Digitally Signed By:SANGEETA ANAND Signing Date:17.02.2023 12:03:02 order in respect of aforesaid unauthorized construction be not passed. It is submitted that after following the due process of law, the competent authority passed the demolition order dated 20.12.2021 thereby directing the noticee to demolish the aforesaid unauthorized construction in the property in question within 06 days. A copy of show cause notice dated 10.12.2021 and demolition order dated 20.12.2021 are annexed herewith as Annexure-A & B respectively. It is submitted that demolition action was planned for 19.01.2022 wherein roof of the fourth floor was punctured. Further actions were planned for 09.02.2022, 23.05.2022 & 22.07.2022, however action could not be taken due to shortage of time. It is submitted that another action was planned for 22.09.2022 but action could not be taken on account of heavy rainfall.
4. That it is respectfully submitted that further action could not be taken during October, November & December-2022 because of implementation of Model Code of Conduct due to Municipal Elections, 2022 and GRAP-III due to rising of Air Pollution in Delhi whereby all construction and demolition activities were completely banned. It is respectfully submitted that it was noticed that the property in question has been occupied illegally and as such a vacation notice dated 06.01.2023 under section 349 of the DMC Act has been issued to the SHO P.S. Bara Hindu Rao with the request to vacate the property so that demolition action can be taken. A copy of vacation notice dated 06.01.2023 is annexed herewith as Annexure-C.
5. That it is respectfully submitted that answering respondent has received an application dated 13.01.2023 from the owners of the property in question seeking regularization of property which is pending for consideration. Vide letter dated 08.02.2023, the applicants/owners have been asked to rectify the discrepancies as mentioned in the said letter within 07 days. A copy of said letter dated 08.02.2023 is annexed herewith as Annexure-D. It is submitted that further action in the matter shall be taken after decision on the regularization application in accordance with law."
Digitally Signed By:SANGEETA ANAND Signing Date:17.02.2023 12:03:02
3. Learned counsel for respondent No. 1/MCD submits that in response to the application received from the owner/occupier seeking regularization, 7 days time was granted to the owner/occupier to remove the discrepancies.
4. Learned counsel for the petitioner submits that after passing of the order dated 07.10.2022, the construction proceeded and has reached upto 4 th floor. However, a perusal of the show cause notice dated 10.12.2021 shows that the same was issued with respect to the unauthorised construction with respect to the ground, first, second, third and fourth floors. As such there is no merit in the submission. This Court is also constrained to note that a perusal of the office noting would show that, though the notice was directed to be issued to the private respondents on 07.10.2022, the process fee was filed only on 03.02.2023 with an application for condonation of delay. However, in the meantime, the petitioner preferred a contempt petition against the respondent. The MCD is directed to inspect the petitioner's property and in case any unauthorised construction is noticed, needful action be taken against the petitioner's property forthwith.
5. Considering that the owner/occupier has preferred an application for regularization which is still pending, the present petition is disposed of alongwith the pending application with a direction that subject to the outcome of the aforesaid application, the respondents would take the requisite action expeditiously and in accordance with law.
MANOJ KUMAR OHRI, J FEBRUARY 15, 2023 na Digitally Signed By:SANGEETA ANAND Signing Date:17.02.2023 12:03:02