Document Fragment View

Matching Fragments

Written statement of defendant no. 2/MCD.

7. The defendant no. 2/ MCD filed written statement submitting that the suit is barred by the provisions of Section 477/478 of DMC Act, 1957 for want of service of statutory notice and as such the suit is not maintainable. The plaintiff is not entitled to any reliefs whatsoever against the defendant as the officials of the defendant have inspected the suit property i.e. 1, Kapil Vihar, Pitampura, Delhi on 22.08.2012 and it was found that the property consists of basement, ground, first and second floor. The ground floor was found totally commercial and first and second floor are meant for residential purpose. However, during the inspection it has been noticed that the rear set back of the suit property has been converted from basement to second floor i.e. deviation against sanctioned building plan.

8. The relevant record in respect of the property in question has also been obtained from the office of the Rohini Zone of DMC and it was found that the property in question was booked twice firstly vide file no. 279/B/UC/RZ/99 dated 20.12.1999 in the shape of deviation against sanctioned building plan and unauthorized construction in set back. A show cause notice was issued u/s 343/344 of DMC and after following due process of law, demolition order was passed on 28.12.1999. On second time the unauthorized construction was booked on the basis of Court case / old occupied vide file no. 130/B/UC/RZ/2009 dated 10.04.2002 in the shape of unauthorized construction of two rooms and toilet at third floor. A show cause notice u/s 343/344 DMC Act was issued and served to the CS No. 59330/16 Rajesh Seth v. Surender Kumar Page No. 5 of 18 owner/ building and after following due process of law, demolition order was passed on 06.05.2002. The defendant no. 2 had also taken demolition action in respect of the suit property so many times and demolished the construction at the third floor and removed other deviations.

Defendant no. 2/ MCD in the written statement has already stated that during inspection deviation of the sanction building site plan have been noticed in the rear set back of the suit property whereby it has been converted from basement to second floor. The relevant record in respect of the property in question has also been obtained from the office of the Rohini Zone of DMC and it was found that the property in question was booked twice firstly vide file no. 279/B/UC/RZ/99 dated 20.12.1999 in the shape of deviation against sanctioned building plan and unauthorized construction in set back. A show cause notice was issued u/s 343/344 of DMC and after following due process of law demolition order was passed on 28.12.1999 and second time the unauthorized construction was booked on the basis of Court case / old occupied vide file no. 130/B/UC/RZ/2009 dated 10.04.2002 in the shape of unauthorized construction of two rooms and toilet at third floor. A show cause notice u/s 343/344 DMC Act was CS No. 59330/16 Rajesh Seth v. Surender Kumar Page No. 14 of 18 issued and served to the owner/ building and after following due process of law, demolition order was passed on 06.05.2002. The defendant no. 2 had also taken demolition action in respect of the suit property so many times and demolished the construction at the third floor and removed other deviations.

Perusal of the site plan Ex. PW1/A show that there is a noting by the zonal engineer, Building Rohini Zone dated 30.03.1999 that regularization of the suit property for the portion shown in red colour is accepted subject to the condition that this will not confer any right to continue with the construction shown in yellow colour on the plan and for misuse of any part of the building being carried in violation of the sanction use. The said building plan is not disputed by the defendant. Hence, it is clear that there unauthorized construction/ deviation as shown in yellow colour in the site plan which is against the sanctioned building plan. The said unauthorized portion is actionable by the MCD for which the MCD has already booked the said portion. Hence, the issue no. 4 is decided in favour of the plaintiff.