Nand Ram v. South Delhi Municipal Corporation

2. Thiswritpetitionisfiledseekingthefollowingrelief; "iil Direct the respondent/SDMC to contemplate further actionsincluding"restrictionofusesofbuildings"undersection Page 1 of[6] W.P.(C)4336 &7181/2017 2020:DHC:3929 /® 347 of the DMC Act in respect of semi-finished structure/premises raised on Plot No.153, New Manglapuri, M.G.Road,Mehrauli,Delhi in continuation ofthe revocation of the building plan under section 338 of the DMC Act by the SDMC,vide order No.D/314/DC/SOUTH ZONE/SDMC/2017 dated 03.05.2017."

3. The facts asstated are thatthe petitioner and hisfamily are residing m ^ the immediate neighbourhood of the illegal construction raised by respondent No.3/private respondent. It is claimed that the said respondent No.3 has succeeded in raising semi-furnished five storey illegal and unauthorised construction on a plot measuring 125 sq.yds. bearing No.l53, New Manglapuri,M.G.Road,Mehrauli,New Delhi.It is further pointed out thatthe petitionerhasfiled variouswritpetitionsseekingnecessarydirection againstrespondentNo.l/SDMC officials.The details ofthese writpetitions are as follows: i) W.P.(C)1716/2017 which was disposed ofon 27.02.2017 noting the stand of the corporation that show cause notice has already been ^ issued to respondent No.3/private respondent and action would be initiated; ii) W.P.(C)2013/2017 which wasdisposed ofon06.03.2017 notingthat the actions initiated on the basis of the show cause notice under section 338 of the DMC Act shall be concluded and the issue of illegalconstruction shall also be addressed; iii) W.P.(C)3508/2015 which was disposed ofon 06.03.2017,relates to the same issue; and iv) W.P.(C)3284/2017 which was dismissed as withdrawn vide order dated 14.04.2017 also pertainstothe same issue. Paee2of[6] W.P.(C)4336 &7181/2017 /Q)

4. It is the grievance of the petitioner that despite the above orders, respondent No.l/SDMC has not completed any action at the sites and has given a free hand to respondent No.3/private respondent to defeat the process of law. It is claimed that under section 347 of the DMC Act, respondentNo.l/SDMC is under statutory obligation to puta restriction on the use ofthe building immediately. W.P.(C)N0.7181/2Q17

5. This writpetition isfiled seekingthefollowingreliefs: "(i) To set aside/quash the order dated 14.07.2017 passed by ATMCD in Appeal No. 333/ATMCD/17 titled as Kanwar Singh Vs.SDMC;

(ii) To resolve the cancellation/revocation of building Plan under Section 338 of the DMC Act vide order No.D/314/DC/South Zone/SDMC/2017 dated 03.05.2017 in respectofplotNo.153,New Manglapuri,M.G.Road,Mehrauli, New Delhi.

6. The narration of facts is virtually identical to the facts stated in W.P.(C)No.4336/2017. However,it appears that sanctioned building plan of respondent No.2, namely, private respondent was revoked/cancelled. Subsequent to which the private respondent filed an appeal before the learned ATMCD.The petitioner also moved an applicationforimpleadment under Order 1 Rule 10 CPC through which the petitioner was permitted to raise argumentsregardingthe contested issues.The admitted factisthatthe learned ATMCD vide order dated 14.07.2017 has allowed the appeal ofthe private respondent against the revocation/cancellation order dated 03.05.2017.Hence,the present writ petition statingthatorder ofthe learned ATMCD is liable to be set aside.

COMMON ORDER

7. I may note that the petitioner had also filed a suit for partition against his two brothers including the private respondent Sh.Kanwar Singh for various properties one ofwhich is subject matter ofthe present writ petition, namely,plotNo.153,New Manglapuri,M.G.Road,Mehrauli,New Delhi. A Co-ordinate Bench ofthis court in CS(OS)1442/2015,titled 'Sh.Nand Ram

V. Kanwar Singh & Ors.' dismissed the suit noting that the property in

Manglapuri including the writ property has already been partitioned and the petitioner has received his 1/3'"'' share in the same vide order dated 10.10.2019.

8. I may also note that respondent No.l/SDMC has filed a status report on 17.01.2018. In the said status report, it is stated that the owner has applied for regularisation of existing structure with an undertaking that he will demolish the non-compoundable deviations.

9. Factually what follows is that, the present series of writ petitions are nothing but a civil dispute pending between the petitioner and the private respondent. Repeatedly writ petitions are being filed claiming that the private respondent(brother of the petitioner) is carrying out illegal and unauthorised construction. Respondent No.l/SDMC had revoked the sanctioned building plan ofthe private respondenton 03.05.2017.An appeal was filed against the same before the learned ATMCD. The learned ATMCD has vide order dated 14.07.2017 allowed the appeal and noted as follows: "22. As far as another contention of the learned counsel for applicant that construction raised by appellant is beyond the W.P.(C)4336 &7181/2017 Page4of[6] building plan filed by the appellant under Saral Scheme acknowledged by the respondent, in my view since no such ground has been taken by the respondent corporation while revoking the acknowledgment,hence same cannot,be raised in appeal. However, it is clarified that respondent corporation is always at liberty to take demolition action as per provisions of DMC Act if there is construction which is excess or in deviations of the sanctioned building plan granted by the respondent corporation, hence, no ground is made out to dismissed the appeal on this ground."

10. Hence, the learned ATMCD has given liberty to respondent No.l/SDMC to take steps as per law in case there is excess or deviations in the sanctioned building plan granted by respondentNo.l/SDMC.

11. Even otherwise,I may note thatan appeal lies againstthe order ofthe learned ATMCD under section 347(C) of the DMC Act in terms of the judgment ofthe Supreme Court in the case ofAmrik Singh Lyallpuri v. Union ofIndia & Ors., 2011 6 SCC 535. It is not for this court to adjudicate the impugned order ofthe learned ATMCD dated 14.07.2017 as is sought to be done by the petitioner.

12. In any case, it is clear that these writ petitions are nothing but an offshoot ofthe civil dispute pending between the petitioner and his brotherprivate respondent.In my opinion,it would notbe appropriate forthis court to pass any further orders.