Full Text
HIGH COURT OF DELHI
W.P.(C) 9133/2023, CM APPL. 40803/2023 & CM APPL.
53679/2023 AMAN SEWAK ..... Petitioner
Through: Mr. Hemant Choudhary, Advocate
Through: Ms. Rachita Garg and Mr. Apoorv Rastogi and Mr. Agam Rajput, Advocates for GNCTD/R-1
Mr. Parvinder Chauhan and Ms. Aakriti Garg, Advocates for
DUSIB/R-2 Ms. Beenashaw N. Soni, Standing Counsel
Sahil Agarwal, Advocates for MCD/R-3 and R-4 Mr. Manish Srivastava, Mr. Moksh Arora and Mr. Santosh Ramdurg, Advocates for R-5/BSES
Mr. Varun Goswami, Mr. Sahil Agarwal and Mr. Hritik Chaudhary, Advocates for R-7
Date of Decision: 24th May, 2024
HON'BLE MS. JUSTICE MANMEET PRITAM SINGH ARORA
JUDGMENT
1. Present writ petition has been filed as a Public Interest Litigation (‘PIL’) seeking a direction to Respondent Nos. 2, 3 and 4 to seal and thereafter demolish the building standing on property bearing no. 4500- 4501, Lambi Gali, Gali Shahtara, Ajmeri Gate, Delhi (‘subject property’) admeasuring 250 sq. yds., as it is wholly illegal and unauthorized. It is stated that the subject property has been constructed by the occupier by encroaching on the public land.
2. The Petitioner is a Non-Governmental Organisation (‘NGO’), stated to be engaged in the welfare and upliftment of the society and has no personal interest in the subject property or the outcome of this petition. It is stated that the Petitioner has filed this petition in the interest of public safety as the illegal building in the form of the subject property is a threat to the safety of other residents of the neighbourhood. Submissions of counsel for parties
3. The Respondent No. 2-Delhi Urban Shelter Improvement Board (‘DUSIB’) has filed its counter affidavit and learned standing counsel for the DUSIB states that a wholly unauthorized seven storeyed structure has been erected by Respondent No. 7 at the subject property without seeking any statutory permission from DUSIB.
3.1. He states that the property is in unauthorized occupation of the present occupant i.e., Sh. Shehzad Ahmed (Respondent No. 7) and a notice for eviction and retrieval of the subject property was issued on 19th April, 2022 (‘Eviction Notice’). He states that as per the official records, the subject property was given on license to Sh. Suhel Singh, Smt. Kiran Bai and Smt. Prem Kaur; and therefore, Sh. Shehzad Ahmed (Respondent No. 7) has no legal right to occupy the subject property.
3.2. He states that in furtherance of the Eviction Notice, the subject property was sealed on 25th April, 2022, by DUSIB, however, subsequently, it was discovered that the seal has been tampered and the unauthorised occupant i.e., Sh. Shehzad Ahmed (Respondent No. 7), has unlawfully and illegally regained access to the subject property. He states that a complaint in this regard has been lodged with the SHO P.S. Hauz Quazi and consequently, an FIR No. 0134 dated 13th May, 2022, has been registered. He states that DUSIB had thereafter, re-affixed the tampered seal.
3.3. He states that however, Sh. Shehzad Ahmed filed an appeal against the aforesaid sealing action before the Appellate Authority and the same was allowed vide order dated 16th March, 2023 on the ground that DUSIB does not have the statutory powers of sealing. He states that thus, the subject property was, thereafter, de-sealed. However, upon de-sealing, the occupant recommenced illegal/unauthorized construction and encroachment. He states that, therefore, vide letters dated 01st April, 2023 and 21st April, 2023 DUSIB informed Respondent No. 3 i.e., Municipal Corporation of Delhi (‘MCD’) to initiate action under Sections 343, 344 and 345-A of the Delhi Municipal Corporation Act, 1957 (‘DMC Act’). He states that even on 30th October, 2021, when the illegal construction was first noticed by DUSIB, intimation was sent to MCD.
3.4. He states that the said Sh. Shehzad Ahmed (Respondent No. 7) has since filed a civil suit for injunction bearing no. 862/2023 before the Civil Judge-02, Central District, Tis Hazari Courts, Delhi (‘Civil Court’), wherein the Civil Court vide interim order dated 29th April, 2023 has restrained the Respondent No. 2-DUSIB from dispossessing Sh. Shehzad Ahmed i.e., plaintiff therein, from the subject property. He states that due to the said interim order of the Civil Court, Respondent No. 2-DUSIB is unable to take action against Sh. Shehzad Ahmed for the unauthorized construction carried out by him as well as his continuing illegal occupation of the subject property.
4. Learned standing counsel for Respondent No. 3-MCD states that MCD has made several attempts to stop the illegal construction in the subject property, however, all attempts have been thwarted by the occupier/Respondent No. 7. She states that seals have been tampered/broken and illegal construction continued unabashed.
4.1. She states that the subject property was booked for unauthorized construction in the shape of the ground floor under Sections 343 and 344 of the DMC Act on 01st April, 2022, followed by a demolition order dated 29th April, 2022. She states that demolition action was planned on four dates between June, 2022 to September, 2022, however, demolition action could not be taken due to several constraints.
4.2. She states that thereafter during the inspection on 19th June, 2023, it was noticed that further unauthorized construction had been carried out in the subject property and therefore, vide order dated 19th June, 2023 passed under Section 344(2) of the DMC Act, the SHO P.S. Hauz Quazi was requested to ensure that no further unauthorised construction is carried out in the subject property.
4.3. She states that in continuation of the earlier booking (dated 01st April,
2022) of unauthorised construction, the first floor to sixth floor as well, were booked under Section 344 of the DMC Act vide letter dated 27th June, 2023 and the owner was directed to demolish the same within six (06) days. She states that however, the owner failed to comply with the said letter and accordingly, during the demolition action undertaken on 17th July, 2023, two panels of the roof of sixth floor were demolished. She states that in addition, vide letter dated 8th August, 2023, the concerned authorities were directed to disconnect the electricity and water connection of the subject property.
4.4. She states that other than the aforesaid, sealing action under Section 245-A of the DMC Act was also initiated and a sealing order dated 12th June, 2023 was passed directing sealing of the subject property. She states that during the execution of the sealing order, on 18th July, 2023, the entrance gates of the fifth floor and sixth floor were sealed. She states that further, a watch and ward letter dated 31st July, 2023 has been sent to SHO P.S. Hauz Quazi, Delhi, requesting strict watch over the subject property to ensure that no re-construction is carried out and seals are not tampered with.
4.5. She states that lastly, a vacation notice dated 11th October, 2023 has been issued under Section 349 of the DMC Act to the occupiers of the subject property, directing them to vacate the subject property, in order to initiate further action, which, as well, is marked to SHO P.S. Hauz Quazi for rendering assistance. She relies upon the contents of the status report dated 12th October, 2023.
5. Sh. Shehzad Ahmed filed CM APPL. 40802/2023 under Order I Rule 10 of Code of Civil Procedure, 1908 (‘CPC’) seeking impleadment as a party Respondent on the plea that he has an interest in the subject property. The said application was allowed vide order dated 09th August, 2023 and he stands impleaded as Respondent No. 7.
6. The said Sh. Shehzad Ahmed i.e., Respondent No. 7, thereafter filed CM APPL. 53679/2023 on the allegation that Mohd. Shabbir, the President of Petitioner NGO has made a demand of Rs. 4 lakhs from Respondent NO. 7 to withdraw the present PIL. It is stated that negotiation between them led to a final amount of Rs. 3.[5] lakhs being agreed as the payment for withdrawal of this petition. In the application, Respondent No. 7 has also alleged with regard to the role played by the lawyers of the Petitioner in negotiating the settlement and relied upon two video recordings of the meetings to substantiate the allegations. In view of the said serious allegations, the Predecessor Bench vide order dated 03rd November, 2023, directed Respondent No. 7 to submit the original device on which the meetings were video recorded along with the pen-drive containing the video recording of the meetings to Forensic Science Laboratory, Rohini (‘FSL’) for examination and verification.
6.1. The FSL, Rohini has since submitted its examination report dated 28th December, 2023, with respect to the digital files of video recordings submitted by Respondent No. 7 in the pen drive and has confirmed that there was no indication of alteration in the video recordings submitted in the pen drive. The report also records that data from the original recording device i.e., the mobile phone has been retrieved.
6.2. In this CM APPL. 53679/2023, Respondent No. 7 has sought initiation of appropriate proceedings against the Petitioner-NGO and its office bearers for making the illegal demand of Rs. 4 lakhs and abusing the PIL proceedings for extortion.
7. Learned counsel for Respondent No. 7 states that he does not dispute that there is no sanction plan available with Respondent No. 7 for the construction of the seven storeyed building erected by him at the subject property. He states that he also does not have any explanation for the continuation of the construction of the building after it was initially booked for illegal construction by MCD and DUSIB in the year 2022. He is also unable to explain the conduct of Respondent No. 7 in tampering with the seals affixed by MCD and construction undertaken despite the seals. Findings and Analysis
8. We have heard the learned counsel for the parties and perused the record.
9. In view of the undisputed facts placed on record by Respondent NO. 2-DUSIB and Respondent No. 3-MCD, it is evident that the seven storeyed structure standing on the subject property, as of date, is wholly illegal and unauthorized. The entire structure has been erected by Respondent No. 7 without obtaining any sanction plan and in wilful violation of the statutory notices issued by DUSIB and MCD calling upon him to stop construction. In the facts noted above, it is seen that though a work-stop notice was issued by Respondent No.3-MCD in April, 2022, when unauthorized construction was noticed on the ground floor, yet Respondent No. 7, in complete disregard of the said notice and the demolition order dated 29th April, 2022, continued to raise construction upto sixth floor without any regard for law or fear of the Municipal Authority.
10. In fact, DUSIB and MCD have stated that the construction was carried out by Respondent No. 7 during the period the subject property was ostensibly sealed as per the records of DUSIB and MCD. Thus, construction was carried out by tampering with the seal of the statutory authorities.
11. Respondent No. 3-MCD has reported that partial demolition action of the roof of the sixth floor was undertaken on 17th July, 2023.
12. Respondent No. 2-DUSIB states that though Respondent No. 7 is an illegal occupant in the subject property and has raised the massive construction illegally and unlawfully, yet they are unable to take any further action in the matter in view of the interim order dated 29th April, 2023, passed by the Civil Court in the suit for permanent injunction filed by Respondent No. 7 against DUSIB. Respondent No. 2-DUSIB has stated that originally a single storeyed structure existed as the ground floor and this massive construction of seven floors is wholly unauthorized and Respondent No. 7 is a trespasser.
13. This Court has perused the plaint in the Civil Suit No. 862/2023 filed by Respondent No. 7 against DUSIB as the sole defendant, wherein it is alleged by Respondent No. 7 that construction has been undertaken as the existing structure was in a dilapidated condition and only repairs were undertaken. The prayer in the plaint is for seeking an injunction against Respondent No. 2-DUSIB from dispossessing the plaintiff therein i.e., Sh. Shehzad Ahmed (Respondent No. 7) or demolishing the construction, without following the due process of law.
14. In our considered opinion, the institution of the Civil Suit NO. 862/2023 in the facts of this case, is a gross abuse of law as Respondent NO. 7 by filing the aforesaid suit has sought to obstruct the due process of law initiated by Respondent No. 2-DUSIB to evict Respondent No. 7 vide eviction notice dated 19th April, 2022 and also interdict the process of demolition of the illegal and unauthorized construction.
15. The Respondent No. 7 admittedly has no legal right to occupy the subject property and is a rank trespasser. Further, the plea in the suit that Respondent No. 7 only undertook construction on the ground floor as it was in a dilapidated condition, is falsified by the fact that in the garb of repair to the ground floor, Respondent No. 7 has unlawfully and unauthorizedly erected a seven storeyed structure, during the period the property was lying sealed by DUSIB and MCD. The violation of law in the construction and erection of the suit property is at each step by Respondent No. 7 who has little or no regard for the rule of law.
16. The Supreme Court in Surya Dev Rai v. Ram Chander Rai and Ors.1, has held that the High Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution, may quash or set aside the proceedings pending before the inferior Court or Tribunal. No grounds for invoking the jurisdiction of the Civil Court were made out in favour of Respondent No. 7 and therefore, the suit was instituted without any cause of action, solely with a view to obstruct the legal proceedings of eviction initiated by DUSIB. We therefore, in exercise of our jurisdiction under Article 227 of the Constitution hereby vacate the interim order dated 29th April, 2023 and dismiss the Civil Suit No. 862/2023 pending before the Civil Judge-02, Central District, Tis Hazari Court, Delhi as it is without any cause of action and intended to interfere in discharge of statutory functions by DUSIB and MCD.
17. The Registry is directed to forward a copy of this judgment to the learned Civil Judge-02, Central District, Tis Hazari Court, Delhi for his records. Directions with respect to Respondent No. 3-MCD
18. Respondent No. 3-MCD is directed to proceed with the demolition action in furtherance of the demolition orders 29th April, 2022 and 27th June, 2023 as well as vacation notice dated 11th October, 2023, without any undue delay. The Respondent No. 3-MCD shall ensure that the entire illegal structure is razed to the ground. It is clarified that cosmetic demolition of puncturing a few holes in the structure will not be accepted by the Court as due compliance with the action required by the said notices.
18.1. In this regard, we may observe that the officials of MCD have been grossly remiss, inasmuch as, though the first demolition order was issued on 29th April, 2022, yet the said order was first implemented belatedly after fifteen (15) months on 17th July, 2023. In this interregnum, the property which was only constructed up to the ground floor in April, 2022 now stands constructed up to seven floors.
18.2. The concerned Deputy Commissioner, MCD is directed to examine the roles of the MCD officials during the period 01st April, 2022 until June, 2023 as the construction was raised from the ground floor to sixth floor during this period, despite sealing orders in place. Even, thereafter, minimum demolition action was undertaken on 17th June, 2023 on the sixth floor alone (out of ground to sixth floor), whereas admittedly, the entire superstructure is illegal and unauthorized.
18.3. The Deputy Commissioner after completing the inquiry shall initiate appropriate action against the delinquent and erring officials. Directions with respect to Respondent No. 2-DUSIB, Respondent No. 5-BSES and Respondent No. 6, the SHO
19. Respondent No.2-DUSIB is directed to proceed forthwith with resuming possession of the subject property. Respondent No. 3-MCD is directed to ensure that after the demolition is complete, the possession of the subject property is handed over to Respondent No.2-DUSIB.
20. Respondent No. 6, the SHO is directed to file an Action Taken Report in furtherance of FIR No. 134 dated 13th May, 2022 filed on the complaint of DUSIB. The SHO is directed to provide necessary police assistance to MCD in executing the demolition action at the subject property. The SHO will ensure that the vacation notice dated 11th October, 2023 is effected to facilitate demolition.
21. Respondent No. 5-BSES will also ensure that the electricity connection to the subject property is disconnected forthwith in compliance with the notice dated 08th August 2023 issued by MCD. Directions to Deputy Commissioner of Police, Headquarter Crime Branch
22. Even though Respondent No. 7 is guilty of violating the law and constructing illegally, no PIL petitioner can be permitted to use the benign process of PIL to demand monies. The allegations made in CM APPL. 53679/2023 by Respondent No. 7 are serious and cannot be overlooked by the Court, especially in view of the FSL report. However, since the Petitioner has filed a reply disputing the said allegations, we deem it appropriate to refer the said issue to the Crime Branch for investigation and initiating proceedings in accordance with the law.
23. We, accordingly, direct Deputy Commissioner of Police, Headquarter Crime Branch to investigate the allegations made in CM APPL. 53679/2023 along with the reply filed by the Petitioner in the background of the two video recordings submitted by Respondent No. 7 and thereafter, proceed against the individuals found culpable, in accordance with law. It is clarified that we have not expressed any opinion on the merits of the allegations made in the application and the same shall be investigated by the Police uninfluenced by any observation made in this order.
24. The Registry is directed to release the pen drive and the mobile phone deposited in the sealed cover along with the FSL report to the Investigating Officer (‘IO’) nominated by DCP, Headquarter Crime Branch.
25. The report of the investigation under the signatures of concerned DCP will also be forwarded to the Bar Council of Delhi as allegations have been made against lawyers in this regard.
26. Accordingly, with the aforesaid directions, the present petition stands disposed of.
27. Respondent No. 2-DUSIB, Respondent No. 3-MCD, Respondent NO. 5-BSES, Respondent No. 6-SHO P.S. Hauz Quazi and DCP Crime Branch are directed to file their compliance reports within six weeks.
28. List the matter for reporting compliance on 13th August, 2024.
ACTING CHIEF JUSTICE MANMEET PRITAM SINGH ARORA, J MAY 24, 2024/hp/aa