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IN THE HIGH COURT OF DELHI AT NEW DELHI
Sanjeev Sachdeva, J.
Poonam Gupta & Anr - Appellant
Versus
South Delhi Municipal Corporation Of Delhi & Ors - Respondent
W.P.(C) No. 4241 of 2021; C.M. Appl No. 12890 of 2021
Decided On : 06-04-2021
Unauthorized Construction - Property Ownership - The court dismissed the petition seeking demolition of unauthorized construction on the third floor of the property and a restraint on regularizing the construction, as there was no ongoing construction activity and the regularization application was under consideration in accordance with the law.
Fact of the Case:
The petitioner sought a direction to demolish unauthorized construction on the third floor of a property, claiming ownership of the first and second floor. The respondent confirmed that no ongoing construction activity was taking place, and a regularization application for the unauthorized construction was under consideration.
Finding of the Court:
The court dismissed the petition, stating that no direction could be issued for demolition as there was no ongoing construction activity. It also held that the regularization application had to be considered and disposed of in accordance with the law, and no blanket embargo could be imposed on the corporation from considering the application.
Issues: Ownership of property, unauthorized construction, regularization application
Ratio Decidendi: No direction for demolition can be issued in the absence of ongoing construction activity. Regularization application must be considered and disposed of in accordance with the law, without imposing a blanket embargo on the corporation from considering the application.
Final Decision: The petition seeking demolition of unauthorized construction and a restraint on regularizing the construction was dismissed by the court.
JUDGMENT
Sanjeev Sachdeva, J. - Petitioner seeks a direction to the respondent/SDMC to demolish construction on the third floor of House No. E-69, South Extension, Part-I, New Delhi-110049 and further a direction to SDMC not to regularise the unauthorized construction on the third floor of the said property.
2. Petitioner claims to be the owner of the first and second floor of the subject property.
3. Learned counsel for the petitioner concedes that petitioner does not have any right to the third floor of the subject property.
4. Learned counsel appearing for the South Delhi Municipal Corporation submits that the unauthorized constructions were noticed in the year 2010, part demolition action was taken and property has been sealed. He submits that as of now, no construction activity is being carried out in the subject property.
5. He further submits that a representation was received from the respondent No.2 seeking his willingness to get the existing construction regularized for the purposes of de-sealing of the third floor. Said application is in under consideration and would be disposed of in accordance with law.
6. The relief sought by the petitioner in this petition is against the respondent/Corporation seeking demolition of the unauthorized construction and a restraint not to regularise the unauthorized construction on the third floor.
7. Since there is no construction activity, being carried out in the subject property as stated by learned counsel for the respondent/Corporation, which is also not disputed by the petitioner, no direction can be issued in the subject writ petition directing respondent corporation to carry out any demolition.
8. Insofar as the regularization application is concerned, as stated by learned counsel for respondent/Corporation and as is evident from the letter dated 12.01.2021 (Annexure P-1), said application is under consideration.
9. No restraint can be imposed upon the respondent corporation from considering an application seeking regularisation. Said application has to be considered and disposed of in accordance with law.
10. As to whether the regularisation application is to be allowed or not, it would be dependent upon the nature of the construction as to whether it is compoundable or regularise able. There cannot be a blanket embargo upon the corporation from even considering the application. On receipt of an application, Corporation is bound to pass appropriate order in accordance with law.
11. In view of the above, no direction can be issued in the subject writ petition. The petition is accordingly dismissed.
The court emphasized that no direction for demolition could be issued in the absence of ongoing construction activity and that the regularization application had to be considered and disposed of in a....
Unauthorized construction cannot be ordered for demolition when there is no current activity, and the municipality must consider regularization applications as per legal standards.
The court's decision emphasized the importance of allowing the respondents to avail of their remedy before the Appellate Tribunal-MCD in cases of unauthorized construction and demolition actions.
The court's decision was influenced by the need to provide the respondents with an opportunity to approach the appellate Tribunal-MCD and seek remedy in accordance with the law.
The court reiterated that unauthorized constructions can be demolished if they do not comply with building bye-laws, while allowing a deferral for an appeal process before the Appellate Tribunal.
The principle of negative equality does not apply, and action can be taken against unauthorized construction regardless of inaction by the Corporation on other illegal constructions in the society.
Direction for lawful action regarding unauthorized construction depends on the outcomes of pending appeal and regularization applications, ensuring no prejudice to ongoing legal matters.
Unauthorized construction cannot be defended based on inaction against other similar violations; each case must be treated according to its own merits.
Municipal authorities possess the jurisdiction to enforce laws against unauthorized construction, which must be acted upon as per legal provisions, while respecting the appeals process.
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