R.L. Bhutani v. Municipal Corporation of Delhi

1. The petitioner R.L. Bhutani has filed the present writ petition against the order No. EE(B-l)/K-12/UC/2011/B-295, dated 07.06.2011 passed by the respondent No.l for demolition of the property bearing No. 153-B, LIG Flats, Rajouri Garden, Extension, Delhi. The case of the petitioner is that the petitioner has not done any illegal construction at his residential premises. The alleged construction on the second floor of the aforesaid propertywas done in the year 1992 after seekingpermission for construction from the DDA and the petitioner has been continuously paying the house tax •# to the respondent No.l since 1983 till 2011-12 i.e. for the last about 30 years. The respondent No.l herein has issued a show cause notice dated 31.05.2011 received by the petitioner on 06.06.2011 tlirough his neighbour. The petitioner immediately replied to the said notice and also personally appeared before the MCD on 07.06.2011. He has also pointed out that almost all the flats in the said area have been constmcted in the similar 2011:DHC:17481 f ¥ >• manner and not only that the said owners have also done construction on the third floor within the knowledge ofthe MCD but the MCD has not taken any action against them. The respondent No.l has only chosen the petitioner to target the petitioner under the influence of the respondent No.2. After considering the reply of the petitioner, show cause notice / impugned order was passed by the respondent No.l MCD on 07.06.2011 for demolition of the second floor of the petitioner's residential premises.

2. The petitioner submitted that the appeal against the said order was filed before the Appellate Tribunal on 13.06.2011. Since the vacancy in the office of the Presiding Officer of the Appellate Tribunal, MCD is not filled up, therefore, the appeals are not being heard and the petitioner has become totally remediless. Therefore, the present writ petition has been filed.

3. The learned counsel for the respondent No.l MCD has appeared on advance notice and has confirmed that the Presiding Officer of the Appellate ^ Tribunal, MCD, is not available and new Presiding Officer has been appointed and the appeals are likely to be heard very shortly. He has also confirmed that several other petitions have been filed for the similar relief

4. The contention of the learned counsel for the petitioner is that he has a good prima facie case in his favour. In fact the respondent No.l is unnecessarily harassing the petitioner and the respondent No.l has deliberately targeted the petitioner at the instance ofthe respondent No.2 and not taken any action against the owners of the other flats who even constructed third floor of the flat.

5. I find that there is force in the submissions of the petitioner that in case the order of demolition is not stayed, the petitioner will suffer irreparable loss and injury. It is argued that the petitioner has a strong case on merit and has addressed his submissions before the Appellate Tribunal, MCD. Since the Presiding Officer is not available, therefore, the prayer is made by the petitioner that till the appeal of the petitioner is decided the interim order be passed.

6. Under these circumstances, the writ petition is disposed of with the directions that that till the hearing of the appeal filed by the petitioner before the Appellate Tribunal, the respondent No.l MCD shall not take any action as per demolition order dated 07.06.2011, subject to the petitioner giving an € undertaking that he will not sell, alienate, encumber or part with the possession of the second floor of property bearing No. 153-B, LIG Flats, Rajouri Garden, Extension, Delhi. In case the petitioner is found in breach of the said undertaking, the MCD shall then be entitled to talce action in pursuance to the orders and notices impugnedherein. No order as to costs. u Dasti under signature ofthe Court Master. r ^ f ^GH JUNE 22, 2011 ».y •it- MANMOHAN SIN( (VACATION JUDGE)