Arvind Bhandari vs Municipal Corporation of Delhi and Another

Gita Mittal, J.—This writ petition has been filed by Mr. Arvind Bhandari who claims that he is the successor-in-interest of Shri Dharam Pal Bhandari who was the owner of premises No. 4/11, East Patel Nagar, New Delhi - 110 008. The petitioner, as successor of late Shri Dharam Pal Bhandari who died on 14th January, 1997, entered into a collaboration agreement with the builder Mr. Vinay Gogia on 15th October, 2003 for raising construction on this plot. There is no dispute that a new building has been raised on the premises which according to the petitioner, was completed around September/October, 2004.

The present writ petition has been filed by the petitioner complaining that the builder raised illegal construction on the plot in question in collusion with the engineers of the MCD who permitted the same for extraneous considerations. It is an admitted position in the writ petition that the other portions of the building have already been sealed by the MCD. According to the writ petitioner, he apprehends sealing action by the MCD of the second floor portion of the flat on the rear side which he is occupying and a prayer has been made by the petitioner that he may be given six months'' time to demolish the unauthorised portions in his flat to bring it within the parameters of the law. The petitioner has premised this prayer on the ground that he is 69 years of age and has no other alternative accommodation in Delhi.

The petitioner has also prayed for further direction to the MCD to take action against other properties in the area where there is unauthorised and illegal construction.

When the writ petition came up for hearing on 19th November, 2007, time was sought by the petitioner to place an affidavit setting out the unauthorised constructions and deviations in the flat which is occupied by him. The petitioner has filed an affidavit dated 22nd November, 2007 wherein the following illegalities have been set out:

The said flat is jutting out approximately 1/2'' feet into the backlane. There is no traffic in this lane. The vegetable vendors and hawkers are doing their respective business undisturbed.

The portions required to be demolished in my flat to bring it with in the frame - work of municipal building by laws are detailed below:

(a) One bathroom-cum-toilet in the rear side.

(b) The entire balcony.

(c) The length of the master bedroom tot he extent of 2 feet.

Copy of this affidavit has been handed over in court to Mr. Kapil Dutta, learned Counsel representing the MCD. On these facts, it has been prayed by the petitioner that this Court restrained the MCD from sealing his portion of the property.

Mr. Kapil Dutta, learned Counsel for the MCD, on advance notice has contested this writ petition. It has been contended that the property in question is one of the 54 properties in Patel Nagar wherein action has been directed by the Division Bench of this court. It has been contended that engineers of the MCD are facing contempt action for non-compliance of the orders passed by the Division Bench. So far as the instant property is concerned, the MCD has pointed out that the rear side flat of the property No. 4/11, East Patel Nagar, New Delhi owned by the petitioner was initially sealed on 10th/11th October, 2007. However, in utter disregard of the orders of the court and directions of the Monitoring Committee as well as the legal provisions which govern the matter, the petitioner tampered with the seal on the 19th October, 2007, 27th October, 2007, 7th November, 2007 and 13th November, 2007. The building department of Karol Bagh Zone, MCD has lodged complaints with the Police Station Patel Nagar in this behalf vide letters dated 5th September, 2007, 20th October, 2007, 29th October, 2007, 8th November, 2007 and 14th November, 2007.

Action for the sealing is being taken under orders of the Division Bench in Kalyan Sanstha Social Organisation v. Union of India and Ors. WP (C) No. 4582/2003.

Requests by the MCD for police force for compliance with the orders of the Division Bench as well as the directions of the Monitoring Committee appointed by the court, have been sought so that compliance with the order is ensured and action for sealing is taken in future.

In view of the foregoing facts, it is to be noticed that there is admittedly not only unauthorised construction but construction has been effected over the back lane which is encroachment over public property. The petitioner has contended that there is no traffic in this lane and only the hawkers are doing their business. Whatever be the user of the public property but it is not open for anybody to encroach upon it. In any case projections over public streets are specifically barred under statute.

I find that there is not even a whisper in the writ petition with regard to the prior sealing action undertaken by the MCD. It has been pointed out that sealing action has been undertaken by the MCD on 10-11th October, 2007 which stands tampered. In my view, the writ petitioner has concealed material facts which were required to be placed before this court. An impression is sought to be created that the petitioner is apprehending sealing action at the behest of the MCD whereas the property has been already sealed and the seal has been tampered.

The petitioner has orally tried to explain his action of tampering with the seal by contending that the same was imperative inasmuch as the petitioner could not have been expected to sleep in the park of colony and he had nowhere to go. No person can take law into his own hands and is required to seek due process of law in order to seek any relief as in the instant case. The provisions of Delhi Municipal Corporation Act, 1957 clearly provided remedy to a person who is aggrieved by any action of the MCD. The action of the MCD is stated to be pursuant to the orders passed by the Division Bench and the Monitoring Committee which also the petitioner has concealed.

It is trite that concealment of material facts and availing of legal procedure by such acts have been held to amount to criminal contempt of court by the Apex Court. Be that as it may, in the instant case, the petitioner is certainly disentitled to exercise of discretion in his favour under Article 226 of the Constitution of India.

The petitioner has admitted not only statutory violations but even encroachment over public land. The action of the MCD is based on the orders of the court.

For all the foregoing facts, I find no merit in this writ petition and the writ petition and application are hereby dismissed.

Dasti.