Harish Chander v. Mcd

order, to be communicated to petitioner, and in the meantime, petitioner was directed to maintain status quo in respect of the construction, possession and title of W.P.(C) 7097/2011 the subject premises.

¶5Counsel for the petitioner states that thereafter,Ithe petitioner appeared before the Assistant Engineer (Building), MCD City Zone, New Delhi and submitted his reply before the said Officer. After considering the reply of the petitioner, an order dated 4.11.2008 came to be passed by the MCD (Annexure P-8). The operative paras of the aforesaid are reproduced herein below : "Taking into consideration the above, I am of the view that since the property in question is situated in the Walled City, and further the party has already got his property registered with the Corporation, in terms of Clause

16.2 of MPD-2021, the property as such is exempted from any punitive action till the Special Area Building Regulations are framed for the said Area is notified or maximum three years, whichever is earlier. Hence in view of the discussions made hereinabove, it is clear that no action is warranted qua the property in question and as such in view of clause 16.2 MPD-2021, the applicant/owner is entitled to avail the benefit as provided under clause 16(2) of MPD-2021, subject to fulfillment of the covenants made therein and since the property is situated in Walled City, the present matter be kept in abeyance till the Special Area Building Regulations are framed for the said Area is notified or maximum three years, whichever is earlier."

¶6After passing of the aforesaid order by the MCD, the petitioner preferred a writ petition, registered as WP(C)No. 1378/2010, praying inter alia that no coercive steps be taken against the premises of the petitioner till the Special Area Building Regulations are framed in terms of the MPD 2021. It is submitted that the aforesaid writ petition came to be finally disposed of by Division Bench, vide W,P. (C) 7097/2011

23.2.2011 (Annexure P-13) noting inter alia the fact that a notification dated 17.1.2011 had been published in the Gazette, notifying the Building Regulation for Special Area, Unauthorized Regularized Colonies and VillageAbadis, 2010. In view of the aforesaid observations, the petitioner withdrew the aforesaid writ petition.

¶7This was followed by another writ petition preferred by the petitionerrecently,registeredas WP(C)No.6764/2011,wherein he sought ^ directionsto the respondent/I^CDnot to take any coercivesteps against )c/ his property. The said writ petition was disposed of on the date of admission itself by passing an order dated 16.9.2011, wherein the statement of the counsel for the respondent/MCD was recorded to the effect.that at present no orders had been passed by the respondent/MCD either for demolition or sealing the subject premises and further, in case ^ any such action is proposedagainstthe subjectpremises,the same would be taken after issuing appropriate notice in that regard. The seriatim of ^ events reveals that within a period of five days of passing of the aforesaid order, the petitionerwas served with the impugnedvacation notice dated

21.9.2011 stating inter alia that the period of protection in accordance with the provisionsof MPD 2021 had come to an end and the demolition order was revived, and as a result, the MCD was duty bound to demolish the subject premises.

¶8Counsel for the petitioner states that the impugned vacation notice issued by.the MCD is mis-conceivedand is liable to be quashed as W.P.(C)7097/2011 Page 4 of6 there is no demolition order that was passed by i^CD, after passing of the order dated 8.4.2008 by the Appellate Tribunal, MCD.

¶9This Court has perused the order dated 4.11.2008, passed by Assistant Engineer (Building), MCD City Zone, New Delhi, which reveals that instead of complyingwith the order of the AppellateTribunal, MCD by ^ passing aspeaking order within the time granted, the aforesaid officer decided to keep in abeyance the matter itself till the notificationof the ^ SpecialArea Building Regulationsfor the said area or a maximumthree years, whichever is earlier.

¶10The contention of the counsel for the respondent/MCD that the aforesaid observations made in the order dated 4.11.2008 ought to be treated as a demolition order is taken note of only to be rejected for the reason that when officer passing the

4.11.2008 ^ specificallynoted that the mattershould be kept in abeyance,then there is no question of treating the said observation as a demolition order, "^^ which could havefollowedonlyafterrevivalofthe matter.

¶11In the aforesaid facts and circumstances, the impugned vacation notice dated 21.9.2011 is set aside. However, having regard to the submission made by the learned Senior Advocate appearing for the respondent/MCD that the MCD is willing to grant a hearing to the petitionerbefore passing appropriateorders in terms of the earlierorder passed by the Appellate Tribunal, MCD on 8.4.2008, the petitioner is directed to appear before the Assistant Engineer (Building), MCD City W.P.(C)7097/2011 5 of6 Zone, New Delhi on 30.9.2011 at 11.00 AIM.

¶12Apart from the reply submitted earlier, the petitioner shall be at liberty to take any additionalpleas that may be availableto him both, in law and facts, by making submissions before the aforesaid officer on the date and time fixed above. The submission made by the petitioner ^ shall be duly considered,whereafterappropriateordersshall be passed by the MCD, preferably within a period of four weeks from the date of ^ conclusionof submissions,underwrittenintimationto the petitioner.

¶13In case the petitioner is aggrieved by the order that may be passed, he shall be at libertyto assail the same as per law.

¶14As learned Senior Advocate for the respondent/MCD states that if the orders passed after hearing the petitionerare adverse to him, no coerciveaction shall be taken against the subject premises for a period ^ of six days from the date of receiptof the notice, as envisagedunderthe Statute, no further protection is required to be granted in favour of the ^ petitioner. The petitionis disposed of, along with the pendingapplication. A copy of this order be given dasti, to the counsels appearing for the parties. SEPTEMBER 26, 2011 sk HIMA KOHLI,J W.P. (C) 7097/2011 J

IN THE HIGH COURT OF DELHI AT NEW DEL HI W.P.fO 7097/2011 &C.M. No.16206/2011 Decided on 26.09.2011 IN THE MATTER OF : HARISH CHANDER ...... Petitioner Through : l^r. Sumit Bansal, Advocate with Mr. Ajay Monga and Mr. Ateev Mathur, Advs. versus MCD Respondents Through : Mr. H.S. Phoplka, Sr. Adv. with Ms. Maninder Acharya and Ms. Mini Pushkarna, Advs. with Syed Anwar, Executive Engineer (Building), City Zone and Mr. Montu Assistant Law Officer. CO RAM * HON'BLE MS.JUSTICE HIMA KOHLI 1. Whether Reporters of Local papers may be allowed to see the Judgment? ^ 2. To be referred to the Reporter or not? 3. Whether the judgment should be reported in the Digest? HIMA KOHLI. J. (Oral) 1. At the outset counsel for the petitioner states that due to a bona fide typographical error, the premises number of the petitioner has been wrongly described as "4259-60 , Gali Bhairon Wali, Jogiwara, Nai W.P.(C) 7097/2011 Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. •f Sarak, Chandni Chowk, Delhi", in the present petition, wh le the correct number of the premises is "4259/VI, Gali Bhairon Wali, Jogiwara, Nai Sarak, Chandni Chowk, Delhi." 2. It is directed that wherever premises number of the petitioner is described as "4259-60, Gali Bhairon Wali, Jogiwara, Nai Sarak, Chandni Chowk, Delhi", the same shall read as "4259/VI, Gali Bhairon Wali, Jogiwara, Nai Sarak, Chandni Chowk, Delhi". 3. The present petition is filed by the petitioner praying inter alia . for quashing of the vacation notice 21.9.2011 issued by respondent/MCD in respect of the second floor of the property bearing No.4259/VI, Gali Bhairon Wali, Jogiwara, Nai Sarak, Chandni Chowk, Delhi. 4. Counsel for petitioner states that aggrieved by demolition 5.12.2007, passed by the respondent/MCD in respect of the subject premises, the petitioner preferred an appeal before the AppellateTribunal, MCD, registered as Appeal No.295/At:MCD/2007. The aforesaid appeal was allowed by the Appellate Tribunal, MCD, vide 8.4.2008 and while setting aside demolition 6.12.2007, the case was remanded back to the quasi judicial authority for a fresh adjudication. The respondent was directed to decide the matter within two months by passing a speaking