Full Text
HIGH COURT OF DELHI
Date of Decision: 9th September, 2024
CHANDER KANTA .....Petitioner
Through: Mr. Aditya Raj, Adv. for applicant/respondent No.3.
Through: Mr. Tushar Sannu, SC
MCD.
JUDGMENT
1. This application is moved on behalf of the applicant/respondent No.3- Smt. Usha Rani wife of Mr. Tara Chand (hereinafter referred as the „applicant’) seeking permission to self-demolish the entire existing construction/structure and apply for fresh sanctioning of the building plan with regard to the subject property i.e. A-22, Radhey Shyam Park, Parwana Road, Delhi-110051.
2. Learned counsel for the non-applicant/petitioner and learned counsel for the MCD[1] are present on advance notice.
3. Having heard the learned counsels for the parties and on perusal of the record, this Court is inclined to pre-pone the hearing in the present matter, which is listed for hearing on 27.01.2025.
4. The reasons are not far to seek. The petitioner seeks initiation of contempt proceedings against the respondent/MCD for willful disobedience of the directions of this Court dated 24.05.2023 in W.P. (C) 292/2023, which read as under:
re-sealed at main entrance of the ground floor in the presence of police force. That further demolition/sealing action programs were fixed on 19.12.2022 & 30.12.2022 but actions could not be executed due to shortage of time.
5. That the demolition/sealing action program was again fixed on 12.01.2023 and property was re-sealed/sealed in the presence of police force at the following points: a. The property has been sealed at main entrance at first floor. b. At second floor, one room has been sealed adjoining toilet at one point. c. At third floor, two rooms have been sealed at two points.
6. That further demolition/sealing action program was fixed on 03.02.2023 and two RCC panel at stilt roof / ground floor were cut and walls of upper ground floor were demolished and the floor was made unusable. After demolition action, the property was re-sealed at main entrance at ground floor (upper) at one point.
7. That the demolition/sealing action program was again fixed on 10.02.2023 and demolition/cutting of the two RCC panel of first floor and chhajja (overhanging roof) of front side of staircase, window and balcony at first floor was done and the floor was made unusable. After demolition action, the property was re-sealed at main entrance of first floor at one point.
8. That further demolition/sealing action program was fixed on 05.04.2023 and two RCC panel of top floor were demolished/cut with the help of gas cutter.
9. That the demolition/sealing action program was again fixed on 07.05.2023 but action could not be executed due to shortage of time.
10. That the further demolition/sealing action program was fixed on 10.5.2023 and action was taken in the form of dismantling the front and inner wall of the first floor.
11. That the demolition/sealing action program was again fixed on 15.05.2023 and action was taken at second floor of the property in the form of demolition of side wall facing the link street in the presence of police force. The Photographs of the property showing the demolition action as undertaken are annexed as Annexure R-l/A (Colly).
12. That further demolition/sealing action program has now been fixed for 31.05.2023 and same would be taken as per law.
13. That the Respondent No. 1&2/ MCD is ready and willing to abide by any further order(s)/direction(s) issued by this Hon'ble Court considering the facts and circumstances of the present case.”
4. Ms.Charu Sharma, learned counsel enters appearance and submits that she has preferred an application under Order 1 Rule 10 CPC on behalf of Smt.Usha Rani, who is statedly in possession of the subject premises. She, on instructions, further submits that Smt.Usha Rani intends to assail the demolition order/sealing proceedings before the ATMCD. She prays that an interim protection be granted to Smt.Usha Rani so that she could avail the remedy as may be available under law.
5. The present petition is disposed of with the direction that MCD will serve a copy of the demolition/sealing order on Smt.Usha Rani.
6. Accordingly, no coercive action be taken for a period of six weeks from today to enable Smt.Usha Rani to avail her remedy before the ATMCD. The continuation of this order would be sought before the Tribunal in the appeal filed, if any.
7. Subject to the orders in such appeal, MCD would take requisite action expeditiously and in accordance with law. Pending application, if any, also stands disposed of.”
5. It is the case of the petitioner that no action has been taken by the respondent/MCD after passing of the aforesaid orders and although an appeal had been preferred by the applicant before Appellate Tribunal, Municipal Corporation of Delhi [“ATMCD”], the same stands dismissed in default for non-appearance of the applicant Usha Rani vide order dated 26.04.2024.
6. It is further urged by the learned counsel for the petitioner that the applicant has not even been made a party to the present Contempt Petition, and therefore, she cannot seek any relief and that she has no clear title, right or interest in premises in question.
7. Per contra, learned counsel for the respondent/MCD submits that there is a civil dispute pending before the non-applicant/petitioner and the applicant, and thus, such disputed question of law and facts cannot be gone into the present Contempt Petition inasmuch as it is the own case of the non-applicant/petitioner that the applicant has raised unauthorized construction in the premises.
8. The respondents No.1 and 2 have no objection if the relief claimed is allowed without prejudice.
9. In the said backdrop, it is also pertinent to mention here that the respondent/MCD had an occasion to file a detailed status report showing action taken for demolition of the property on the complaints lodged at the behest of the non-applicant/petitioner against the applicant Smt. Usha Rani.
10. The plea by the learned counsel for the non-applicant/petitioner that the applicant has not been made a party to the present proceedings, is belied from the fact that she was impleaded as respondent on an application under Order I Rule 10 of the Code of Civil Procedure, 1908 [“CPC”] in the main W.P. (C) 292/2023 and was allowed some time to approach the learned ATMCD for redressal of her grievance against the MCD.
11. That being the case, the application moved by the applicant cannot be said to be not maintainable in law. If the nonapplicant/petitioner has any counter claim, right or interest in the property in question, his remedy lies elsewhere in law.
12. Hence, the present application moved by the applicant is hereby allowed. She shall be at liberty to demolish the entire existing structure construction and thereafter apply for fresh sanction or building plan for construction in accordance with law. This shall be without prejudice to the rights and contentions of the parties in the pending civil suit.
13. The present contempt petition is also disposed of accordingly.
14. The next date of hearing in the matter stands cancelled.
DHARMESH SHARMA, J. SEPTEMBER 09, 2024