Hari Ram Gupta & Ors. v. MCD & Anr.

2. Vide letter dated 18th November, 2008, the Executive Engineer (Building) informed the SHO, Police Station Shakarpur and the DCP of the area that the seal was found to be broken and unauthorized construction 2010:DHC:641 W.P.(C) No.4270/2008 Page 2 was being undertaken in the said premises. The police was asked to prosecute the offenders. Order dated 30th April, 2009 records that the respondent No.2, who is the applicant herein, has not been able to show any order of de-sealing between the period 29th November, 1993 up to November, 2008.

3. Relevant portion of the order dated 30th April, 2009, reads as under:- “Counsel for the respondent No.2 states that his client is in possession of half of the basement, half of the ground floor and half of the first floor of the premises and that respondent No.2 has remained in possession of the area mentioned above ever since 28.5.1992. He, however, categorically denies that any sealing action of the premises was undertaken by the MCD on 29.11.1993. Perusal of the counter affidavit of the respondent No.2 shows that in para 23 thereof, reference is made to a sealing of the premises in March, 1993, but the learned counsel for the respondent No.2 is unable to explain as to how his clients came to occupy the premises and claim to be in possession thereof even today, when nothing has been placed on record to establish de-sealing of the premises on the part of the respondent No.1.”

4. After considering the aforesaid facts, by the order dated 30th April, W.P.(C) No.4270/2008 Page 3 2009, the following directions were issued:- “Considering the fact that counsel for the respondent/MCD states that action with regard to the unauthorized construction could not be taken as no information of the same was available with it, the respondent/MCD is directed to take immediate steps to inspect the premises in question, and in case any unauthorized construction and/or encroachment on public land is found, it shall take appropriate action within two weeks from today in accordance with law. Respondent No.1 shall also be at liberty to re-seal the premises in question, if necessary, for which the local police shall render necessary assistance. An action taken report shall be filed by the Executive Engineer of the respondent/MCD within four weeks thereafter, with an advance copy to the petitioner as also the respondent No.2.”

5. The applicant herein filed a review application being R.A. No.246/2009, which was disposed of on 6th July, 2009. While disposing of the application, the Court observed as under:- “Counsel for the respondent No.2/applicant states further that it is a fit case where there is sufficient reason for this Court to review the order dated 30.4.2009 as the Appellate Tribunal, vide order dated 28.9.1993, allowed the appeal preferred by the petitioner and set aside the demolition order dated 25.1.1999[3] and thus the sealing W.P.(C) No.4270/2008 Page 4 order became inoperative. He is, however, unable to state as to how respondent No.2 came to be in possession of part of the property in question ever since 28.5.1992, and came in possession thereof after 10.03.1993 when particularly, in the review application, it is his case also that the premises in question was sealed on 10.3.1993. There is no explanation offered as to how his client continued to remain in possession, in the teeth of the sealing order dated 10.3.1993. Nor has counsel for the respondent No.2 been able to show as to when the property came to be desealed.”

6. The last submission made by the counsel for the respondent No.2, the applicant herein, was with regard to direction issued to the MCD to deseal the premises. The Court clarified in the order dated 6th July, 2009 that vide order dated 30th April, 2009, no such mandate was given to the MCD, but the said authority had been directed to re-seal the property, if it deemed that the action was necessary.

7. It is, therefore, clear that the respondent No.2, the applicant herein did not at any time question and challenge the direction with regard to unauthorized construction given in the order dated 30th April, 2009. Even in the review application no such prayer was made. Thereafter, the writ petition was listed on 21st July, 2009 and then on 3rd November, 2009. On W.P.(C) No.4270/2008 Page 5 3rd November, 2009, it was stated on behalf of the MCD that the action which is required to be taken will be taken within two weeks from the said date.

8. On 28th January, 2010, counsel the respondent, MCD submitted the action taken report and had stated that they shall take further action to remove the unauthorized construction by demolishing the same. On the said date, the respondent, MCD was directed to file a site plan indicating the unauthorized construction existing in the property and specify the locations and the portions of the unauthorized construction which have been demolished. The order dated 28th January, 2010 is merely a reiteration of the earlier order, which was passed on 30th April, 2009 and stands till date. The respondent No.2, the applicant herein by the present application seeks review of the earlier order dated 30th April, 2009. In fact, this is a second review application as he had earlier filed a review application being R.A. No. 246/2009, disposed of on 6.7.2009. The second review application obviously is not maintainable. Even otherwise, it is noticed that the Court had passed the order dated 30th April, 2009 after noticing the fact that the seal had been broken without any order of de- W.P.(C) No.4270/2008 Page 6 sealing. On 28th January, 2010, learned senior counsel appearing for the respondent No.2/ applicant had submitted that the seal was broken by the petitioner and not by his client. It was, however, admitted that the applicant was in occupation of the portion of the property, which was sealed.

9. For the reasons stated above, I do not think that the respondent No.2, the applicant herein can rely upon Delhi Laws (Special Provisions) Act, 2006 which has been repeatedly extended from time to time. During the course of hearing, counsel for the respondent No.2, the applicant herein was asked whether his client is ready for re-sealing of the property. Counsel, on instructions states that his client is not agreeable to re-sealing. I do not find any merit in the present application and the same is dismissed. Dasti to the counsel for the parties.

SANJIV KHANNA, J. FEBRUARY 03, 2010 NA