Compliance with legal steps to challenge a demolition order and demonstrate its illegality is crucial in seeking relief from demolition charges.

HIMA KOHLI, J.

(Oral)

1. Vide order dated 20.03.2012, it was recorded that though four reliefs were sought by the petitioner in the present petition, notice was issued limited to the reliefs sought in prayer (a) and (d) alone while granting leave to the petitioner to claim damages as sought by her in prayers (b) and (c), before the appropriate forum.

2. Counsel for the petitioner states at the outset that he does not wish to press for the relief sought in prayer (a) which is for restoration of the subject flat and he seeks to confine the present petition to relief sought in prayer (d) which is for quashing of the order dated 31.12.2003 whereunder, respondents No.1 to 4/MCD had demanded demolition charges of Rs.5,875/- from the petitioner.

3. The petitioner claims to be a lawful owner in possession of flat bearing No.360-F, Second Floor, Pocket-II, Mayur Vihar, Phase-I, Delhi that was purchased by her from the respondent No.8 in the year 1996. It is averred in the petition that on 09.06.2003, respondent No.1-4/MCD had issued notices under Sections 349 and 433 of the DMC Act stating that the addressee had failed to comply with the earlier notice issued under Section 343 and 344 of the DMC Act and that MCD intended to take demolition action against the unauthorized construction in the subject premises and therefore, the owner/builder thereof was asked to remove the lock at the entrance of the property. Vide another notice dated 09.06.2003, issued by the MCD under Section 349 of the DMC Act, the owner/occupier of the subject premises was called upon to vacate the same within three days from the receipt of the notice, failing which it was informed that the occupants would forcibly be removed from the building for undertaking demolition action.

4. It is contended by the counsel for the petitioner that the petitioner had furnished a reply dated 13.06.2003 to the aforesaid notices and she had personally met the officers of the respondents No.1-4/MCD and informed them that she had not carried out any addition/alteration in the subject flat. As per the petitioner, when she submitted her reply with the relevant documents, the same were duly received in the office of the Deputy Commissioner, South Zone, MCD (Pages 45-47), and the concerned officers of the MCD also seemed to be satisfied. However, without intimating the petitioner, a demolition squad of MCD had visited her premises on 27.12.2003 and they had demolished a part of the flat as highlighted in red colour in the site plan enclosed with the writ petition. A perusal of the site plan reveals that the demolition action was carried out in the balcony of the subject premises. Thus, the present petition came to be filed by the petitioner in January, 2004 claiming inter alia that the demolition action undertaken by the respondents No.1-4/MCD on 27.12.2003 was arbitrary and illegal and the same was undertaken without issuing any prior show cause notice to the petitioner.

5. As per the counter affidavit filed by the respondents No.1-4/MCD, the unauthorized construction existing in the subject premises, which was in the shape of a room in the balcony, had been booked by the MCD on 04.02.2003 and a show cause notice was served upon the owner/builder of the subject premises directing the addressee to submit a reply within three days. However, the owner/builder of the subject premises failed to file a reply to the aforesaid notice to show cause as a result of which, a demolition order dated 10.02.2003 was passed by the MCD and the owner/builder was called upon to demolish the unauthorized construction pointed out in the notice to show cause within 5 days from the date of receipt of the demolition order. However, no such steps were taken by the owner/occupier to remove the unauthorized construction and consequently, the respondents tried to take demolition action on 09.04.2003 but could not do so as the premises was found to be locked. It was only then that the notice dated 09.06