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IN THE HIGH COURT OF DELHI AT NEW DELHI
Sanjeev Sachdeva, J.
Sameer Malhotra & Anr. - Appellantss
Versus
North Delhi Municipal Corporation And Other - Respondent
Civil Writ Petition No. 6174 of 2021, Civil Miscellaneous Application No. 19567, 21342, 30551 of 2021, 2067 of 2022
Decided On : 23-02-2022
Illegal Construction - Municipal Corporation - The court directed the respondent to stop illegal construction, issued a notice for contempt of court, and accepted an unconditional apology with a cost of Rs. 75,000. The property was de-sealed for filling up the basement to the satisfaction of the executive engineer of the corporation, and further construction activity was subject to the orders of the appellate Tribunal-MCD.
Fact of the Case:
Petitioner sought a direction against the respondent-Corporation to stop illegal unauthorized construction. Despite an undertaking, construction activity continued, leading to a notice for contempt of court. The respondent filed an affidavit tendering an unconditional apology and explained the construction was for protecting the basement.
Finding of the Court:
The court accepted the unconditional apology with a cost of Rs. 75,000, de-sealed the property for filling up the basement, and directed that further construction activity be subject to the orders of the appellate Tribunal-MCD.
Issues: Illegal unauthorized construction, contempt of court, revocation of sanction plan, and filling up the basement to the satisfaction of the executive engineer of the corporation.
Ratio Decidendi: The court held that the unconditional apology tendered by the respondent was accepted with a cost, and further construction activity was subject to the orders of the appellate Tribunal-MCD.
Final Decision: The petition was disposed of with the property de-sealed for filling up the basement, and the notice of contempt was discharged. The case was listed for reporting progress by the CPWD and for submitting a proposal for improving infrastructure/facilities in the Buddha Jayanti Park.
JUDGMENT
Sanjeev Sachdeva, J. - The hearing was conducted through video conferencing.
2. Petitioner seeks a direction against the respondent-Corporation to take action against the illegal unauthorized construction being carried out over half portion measuring 288 sq. yards towards eastern side of the property bearing No. 61/22, Ramjas Road, Karol Bagh, New Delhi-110005 without any sanction plan or requisite permission.
3. Order dated 07.07.2021 records the contention of learned counsel appearing for the municipal corporation that there was a sanctioned plan for the building which was applied for under the Saral Scheme. Further, it was contended that there were certain misrepresentations at the time of making the application and accordingly action in accordance with law was proposed to be taken.
4. Undertaking was given by the respondent no. 2 to 4 that no construction shall be carried out till disposal of the show cause issued by the Corporation seeking to revoke the sanction plan.
5. Order dated 22.07.2021 of this Court notes that as on that date basement had been dug up and there was a possibility of a mishap because of the ongoing rainy season. accordingly, directions were issued to the concerned engineer of the Municipal Corporation to suggest steps required to ensure the safety of the area.
6. On 09.09.2021, it was pointed by learned counsel for the petitioner that, despite the undertaking given to the Court, construction activity was carrying on. This Court, noticing the photographs which were produced on record and also the fact that respondents 2 to 4 had not stopped construction despite three work stop notices issued by the Corporation, issued a notice to show cause to Mr. Rachit Gupta/respondent no. 4 to show cause as to why proceedings under the Contempt of Court act be not initiated. Further, the Corporation was directed to seal the property and not to permit any further construction thereafter.
7. Mr. Rachit Gupta had filed his affidavit tendering an unconditional apology and also explaining that the construction that had been raised was as per the advice given by his architect and Engineer for the purposes of protecting the basement by creation of a rigid box.
8. Noticing the said submissions officers of the Corporation were directed to examine the same and submit a report as to whether the contention of Mr. Rachit Gupta was correct or not.
9. Status report has been filed by the Corporation stating that part of the construction was raised beyond what was recommended by the Executive Engineer of the Corporation for purposes of protecting the property.
10. Mr. Lalit Gupta, advocate appearing for Mr. Rachit Gupta submits that the error occurred on account of the advice given by the Engineer and architect and he unconditionally tender his apology for the same and submits that he is willing be put to terms for the error committed by him.
11. It is pointed out that with regard to the revocation of the sanction plan, respondent no. 2 and 3 have already approached the appellate Tribunal-MCD and proceedings are pending before the appellate Tribunal-MCD.
12. It is also pointed out that the petitioners have filed an application before the appellate Tribunal-MCD in the appeal filed by respondent no. 2 and 3 and they are being heard by the appellate Tribunal-MCD in those proceedings.
13. Learned counsel appearing for respondent no. 2 to 4 further volunteers that they shall fill up the entire basement to the satisfaction of the engineers of the Corporation and further undertakes that no construction activity shall be carried out in the subject property except in accordance with the orders to be passed in the appeal by the appellate Tribunal-MCD.
14. In the facts and circumstances of the case, the unconditional apology tendered by respondent no. 4 is accepted, however, subject to payment of costs of Rs. 75,000/-. The cost shall be deposited by the respondent no. 4 within a period of two weeks with the Horticulture Wing of the CPW
Unconditional apology with a cost and subjecting further construction activity to the orders of the appellate Tribunal-MCD.
Unauthorized construction without proper permits is subject to court orders and potential contempt charges if violations occur.
Requirement of a sanctioned building plan and measures to protect structural integrity in property disputes.
Construction activities must adhere to sanctioned building plans to ensure structural integrity and prevent unauthorized modifications affecting neighboring properties.
The court's decision was influenced by the Corporation's revocation of the sanction plan and the pendency of an appeal before the appellate Tribunal, MCD, without making any determination on the meri....
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.
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.
A revocation of a building plan without adequate notice and opportunity for hearing violates natural justice principles under the Delhi Municipal Corporation Act.
The central legal point established in the judgment is the requirement to adhere to the principles of natural justice as mandated by Section 338 of the Delhi Municipal Corporation Act, 1957, particul....
Unauthorized construction cannot be defended based on inaction against other similar violations; each case must be treated according to its own merits.
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