Punita Bhardwaj v. Municipal Corporation of Delhi & Ors.

1. The present review petition has been preferred by the petitioner under Section 114 read with Order XLVII Rule 1 CPC and Article 226 of the Constitution of India seeking review of the order dated 11.10.2022 passed by this Court with respect to the prayer clauses (i), (ii), (iv), (v), (vi) & (vii) of the writ petition.

2. Before proceeding further, the relevant prayer clauses of the writ petition are extracted below: - “(i) declaring that demolition done by respondents on 03rd August 2022 in petitioner’s property No. 132, Narang Colony, Janakpuri, Delhi-110058 reflected in photographs appended in para 13 of petition, as illegal and contrary to law;

(ii) quashing/setting-aside the alleged notice dated

16.01.2018 (Annexure-A) issued by respondent no. 2 against petitioner’s property as illegal, invalid, liable to be declared as null & void; xxx

(iv) quashing respondent’s notice dated 02.08.2022 U/s

(v) quashing action of respondent No.2 requisitioning police force and JCB at site and deployment of police force by respondent no.2 as violation of mandate of Police Act;

(vi) directing respondents and concerned officer of respondent corporation to compensate petitioner for the loss / damages suffered due to illegal action of such respondents;

(vii) directing respondents to initiate disciplinary action against its erring official including respondents No. 2 and 3 and…”

3. In the writ petition, the petitioner has challenged various notices/orders issued by respondent Nos. 1 and 2 relating to the illegal and unauthorized construction statedly carried out at her property bearing No. 132, Narang Colony, Janak Puri, Delhi – 110058 (hereinafter, referred to as the ‘subject property’).

4. As borne out from the records, the proceedings got initiated with the issuance of a Show Cause Notice on 16.01.2018, wherein it was mentioned that unauthorized construction existed at the subject property in the shape of additions, alternations at ground floor & first floor, without prior permission from MCD. The Notice was succeeded by a demolition order passed on 29.01.2018. The petitioner assailed the same before the Appellate Tribunal, MCD (hereinafter, referred to as ‘the Tribunal’), claiming that the officials of respondent No. 1 carried out the demolition exercise on 22.05.2018 at the subject property without serving either the Show Cause Notice or the demolition order.

5. Initially, the Tribunal dismissed the appeal on the ground that the petitioner had no title and/or authority to institute the appeal before it, however later, in a challenge, learned District & Sessions Judge, Dwarka, New Delhi vide order dated 07.06.2019, remanded back the matter by observing that the petitioner being occupier of the subject property was entitled to file an appeal against the order of demolition. During the pendency of proceedings before the Tribunal, an intervention application was filed on behalf of one Smt. Rashmi Juneja, who claimed that the petitioner had already executed Sale Deed dated 29.07.2010 in her favour and thus, she was the owner of the subject property. The Tribunal was further informed that Smt. Rashmi Juneja had also filed a Civil Suit against the petitioner seeking possession of the subject property. The Tribunal, vide order dated 20.05.2022, observed that the Show Cause Notice was not issued in the name of the petitioner but in the name of the owner/builder/occupier. In view of the same, the demolition order was set aside and the matter remanded back to the Quasi-Judicial Authority for fresh consideration. It was also directed that the order passed by the Tribunal itself be treated as a Show Cause Notice to the petitioner.

6. The petitioner filed an application for regularization on 08.06.2022. Respondent Nos. 1 and 2, after re-consideration, passed a speaking-cum-demolition order on 08.07.2022. A notice under Section 435 of the DMC Act, 1957 was issued on 02.08.2022, and on 03.08.2022, the respondents carried out demolition. On that day, on account of urgent mentioning, the writ petition being W.P.(C) 11559/2022 filed by the petitioner was listed and taken up for hearing at 03:05 p.m. It was submitted on behalf the petitioner that though the Tribunal, while setting aside the order dated 29.01.2018, had remanded the matter back to the Quasi-Judicial Authority to pass a speaking order, respondent No. 1 carried out demolition without passing any speaking order. Keeping in view the urgency made out and in absence of any Status Report, this Court directed that no precipitate action be taken against the subject property till the next date of hearing and the demolition stated to be ongoing be stopped forthwith. Eventually, on 27.09.2022, on a submission made by the learned counsel for respondent Nos. 1 and 2 that a speaking order would be passed within two months, the writ petition was disposed of. It is pertinent to note that the prayer in the said writ petition was limited to the request for regularization. This Court did not stay any demolition order and only directed passing of a speaking order on the petitioner’s application for regularization after granting a personal hearing.

7. In the present review petition, petitioner’s contention that all the prayers were not taken note of while disposing of the petition on 11.10.2022 appears to be misplaced as, a reading of the order would show that the same were briefly noted. On the said date, a preliminary objection was taken by learned counsel for respondent Nos. 1 and 2 that the speaking order impugned in the writ petition was passed in pursuance of directions by the Tribunal and hence needed to be assailed before the Tribunal itself. Apparently, the petitioner’s challenge to the order dated 11.10.2022 by way of LPA 617/2022 was dismissed as withdrawn on 01.12.2022.

8. Learned counsel for the respondent Nos. 1 and 2 also placed on record a copy of the order dated 23.08.2019 passed by a Co-ordinate Bench of this Court in W.P.(C) 9079/2019 titled as Smt. Punita Bhardwaj v. South Delhi Municipal Corporation and Anr. whereby the petitioner’s writ petition was disposed of in view of the fact that the petitioner had already approached the Tribunal.

9. Petitioner’s submission that none of the demolition notice/order(s) spelt out the extent of unauthorized construction also appears to be misplaced as the first demolition notice itself had mentioned that unauthorized construction in the shape of additions/alterations existed at the ground and first floors.