The power to demolish a building has been contemplated under section 343 of the Delhi Municipal Corporation Act, 1957 (DMC Act, for short), according to which the power is exercisable only by the Commissioner of the Municipal Corporation; and that considering the grave consequence of exercise of this power, there is no provision for the Commissioner to delegate such power to any subordinate officer.

JUDGMENT

Anup Jairam Bhambhani, J. - The petitioner claims to be the owner, in occupation of the Second Floor (Rear Portion) of property bearing No. K-1 Kailash Colony, New Delhi. The contesting respondent is the Municipal Corporation of Delhi (MCD), which after its trifurcation, is now the South Delhi Municipal Corporation (SDMC). Other State and private respondents, though impleaded as parties in one of the writ petitions, are pro-forma parties since no relief has been prayed against such respondents.

2. The petitioner''s grievance is that on 13.03.2010 the respondent has demolished the Third Floor built on top of the Second Floor (Rear Portion) of property bearing No. K-1 Kailash Colony (the Third Floor being hereinafter referred to as the "subject property"), which action, according to the petitioner, is unlawful. In this backdrop the petitioner has made the following prayers in WP(C) No. 2160/2010 :

"a) pass a writ of mandamus, order, direction of like nature directing the MCD to pay compensation towards the costs of such construction of third floor to the tune of Rs.10,00,000/- for unlawfully demolishing the entire third floor of the petitioner and further humiliation caused to the petitioner;

b) pass such order directing appropriate legal action against the errant MCD as well as police official guilty for unlawfully demolishing the third floor of the petitioner;

c) pass a writ of mandamus, order or direction of like nature directing MCD to grant sanction of the site plan submitted to MCD vide dated 12.04.2007 in accordance by laws MPD 2021;

d) pass a direction to MCD as well as the respondent No.3 to allow the petitioner to construct her third floor in accordance of law;

e) pass order or direction set aside the order of the MCD demanding demolition charges vide order dated 18.03.2010;

f) pass any other further order(s) which this Hon''ble Court may deem fit and proper in the facts and circumstances of the case, in the interest of justice."

3. The petitioner has also filed another petition, being WP(C) No. 1033/2017, seeking essentially the same relief, in which the prayers made are the following :

"a) Allow the writ petition and pass a writ of mandamus or any appropriate writ/directions/orders as may deem fit and proper directing the SDMC to sanction the proposed building plan of petitioner on terrace of 2 nd floor portion in conformity of Building Bye laws without insisting for NOC from owners of other floors of K-1 Kailash Colony New Delhi, in the interest of justice.

b) Any other or further order or direction which this Hon''ble Court may deem fit and proper in the facts and circumstances of the case be passed/issued in the interest of justice."

Since the reliefs sought in the two writ petitions are essentially the same, both writ petitions are being disposed of by this common order.

Petitioner''s contentions :

4. In support of the prayers made in the two writ petitions, Mr. O.N. Sharma, learned counsel appearing for the petitioner states that the genesis of the matter is a complaint made by the residents of the first floor of the building in relation to alleged unauthorised construction of the third floor; which led to the filing of a suit titled Chander Prakash vs. Usha Devi & Ors.: CS No. 414/2008 in the court of the learned Additional Senior Civil Judge (South), New Delhi claiming certain reliefs. In this suit an order dated 11.02.2010 was made, pursuant to which the respondent''s officials inspected the subject property on 22.02.2010 and filed a status report dated 03.03.2010 before the court. In the status report it was said that upon inspection conducted on 22.02.2010 and after perusal of the official record it was found that the owner/occupier had carried-out unauthorised construction on the terrace above the second floor, which may be treated as third floor, by constructing a verandah and one room without seeking prior permission from the competent authority i.e. MCD.

5. In status report dated 03.03.2010 it wa