SARLA KUMARI Vs. H L DUA

JUDGEMENT

(1.) -

(2.) THIS petition under Article 226 of the Constitution was filed in November, 1989 seeking a writ of mandamus requiring the respondents to remove the unauthorised construction at property bearing No. 22/67-68, West Patel Nagar, New Delhi. Petitioner is the owner of the neighbouring house. Certain other directions are also sought that the property be not allowed to be occupied and that water and electric connection be not provided there. It is not necessary for us to refer to various proceedings held in this petition so far and the various directions issued from time to time. Action was also proposed to be taken against other unauthorised buildings in the locality which had come up in violation of the sanctioned plans and building bye-laws. We are told that action is being taken against those properties as well in accordance with law. As far as the present case is concerned it was recorded on 5 August, 1991 that admittedly 1400 square feet of the constructed portion on the third floor and 708 square feet on the second floor in the property in question was in excess of the building bye-laws and which construction was not compoundable. It was also noted that there was no extra area beyond compundable limit on the ground floor and the first floor though Municipal Corporation of Delhi had stated that the building did not conform to set back requirements. THIS property it appeared originally was owned by the first respondent and was sold to the fourth respondent who brought up the unauthorised construction after demolishing the existing structure. On 5 August, 1991 the Court also recorded the submisson of the fourth respondent that he be permitted to occupy the basement, ground floor and the first floor, but the Court said this request could be considered favourably only after the fourth respondent had demolished the third floor, arid 708 square feet on the second floor, and further he should also satisfy that the projection on the municipal land was permissible by charging of teh-bazari or otherwise. At that time it recorded that Mr. Sabharwal, Counsel for the fourth respondent, hoped that the fourth respondent would be able to demolish the excess portions, i.e.. the non-compoundable ones on the second and third floors of the property by the next date of hearing. Till this date, this has not been done. The matter was thereafter adjourned to various dates on the plea that the fourth respondent had filed an appeal before the Appellate Tribunal under the provisions of the Delhi Municipal Corporation Act against the order of demolition of various portions in the property. Ultimately, on 14 February, 1994 we recorded the statement of Mr. Sabharwal that though the appeal had been filed by the fourth respondent as aforementioned but he was unaware as to the stage of the proceedings. We, therefore, required the presence of the fourth respondent. He appeared before us on 16 February, 1994 and we recorded his statement. He said he was the owner of the property in question and that he had built this property after demolishing the original structure. He admitted that the construction was not as per the sanctioned building plans and that whole of the third floor was unauthorised and on the second floor also there was unauthorised construction in excess of the permissible limits. We asked him why did he make unauthorised construction in violation of the sanctioned building plan. His reply was that everybody in the area was making unauthorised construction and so did he. He further said that the Appellate Tribunal told him that the appeal before it would be adjourned sine die as there was a stay from the High Court and that when the High Court decided the matter the appeal could again be taken up. He, however, did not know the date when this order was passed by the Appellate Tribunal. Then he admitted that at the time of construction he had sold the ground floor to one Rajan Kumar Wadhawan and the first floor to Rajesh Kumar Blaggna. He, however, said that basement, second floor and third floor were still with him. After we had recorded the statement of the fourth respondent, it was stated before us by Mr. Sabharwal that appeal before the Appellate Tribunal had been adjourned sine die on 26 March, 1991. We sent for the file of the Appellate Tribunal. On the adjourned date we perused the file of the Appellate Tribunal. It appeared to us that on the strength of pendency of this writ petition the fourth respondent sought the appeal adjourned sine die. We also referred to the earlier proceedings dated 5 August, 1991 where Mr. Sabharwal had hoped that fourth respondent would beable to demolish the excess portions on the second floor and the third floor. It was, therefore, apparent that no demolition had been carried out by the fourth respondent and unauthorised construction stood and the appeal before the Appellate Tribunal also stood adjourned sine die. We were, therefore, of the opinion that prima facie it was all wrong on the part of the fourth respondent, and we directed the parties to appear before the Appellate Tribunal on 7 March, 1994 for further proceedings in the appeal. We further directed the Appellate Tribunal to decide the appeal irrespective of the pendency of the writ petition. Again the matter was adjourned from time to time as we were told that the appeal was fixed for several dates. On I February, 1995 we recorded the statement of Mr. Sabharwal on instructions from the fourth respondent that the appeal before the Appellate Tribunal had been dismissed. We required him to place on record a copy of the order. On the adjourned date, a copy of the order was shown to us where we found that the appeal had been dismissed in default on 28 September, 1994. Mr. Sabharwal said that the fourth respondent did not wish to get the order set aside, appeal restored and heard on merits.