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2010 DIGILAW 220 (DEL)

SANJAY CHAWLA v. MCD

2010-02-08

SANJIV KHANNA

body2010
ORDER 1. Order of the Estate Officer dated 16th November, 2000 under Section 5B(1) of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (hereinafter referred to as the Act), which has been upheld by the learned Additional District Judge by his order dated 4th December, 2000 have been challenged. 2. Estate Officer has observed that the petitioners herein, as per the report of Survey Branch (Slum) dated 3rd November, 1999 are running 9 shops and a school in and around quarter No. C-84, Jhilmil Colony, Shahdra, Delhi and have unauthorizidely occupied adjoining lands measuring 572.90 sq. meters. By order dated 16th November, 2000, the petitioners were directed to remove building and immovable structure/fixtures within 15 days. It was further directed that the petitioner will pay Rs. 16,00,686/- as costs of removal of the said building and immovable structure/fixture. The said order has been upheld by the Additional District Judge, who has observed that costs of Rs. 16,00,686/- has been imposed on account of removal of structure and fixture and no order for damages for unauthorized occupation has been passed. The aforesaid observation was made in view of the contention of the petitioners that no notice under Section 7 of the Act was issued to the petitioners. 3. By order dated 7th December, 2000, this Court had issued notice after noticing that an application filed by the petitioners for regularization was pending. The petitioners were directed to deposit Rs. 5,00,000/- in two installments. It is stated that a sum of Rs. 5,00,000/- has been deposited in the Registry of this Court in terms of the order passed. Thereafter, vide order dated 23rd July, 2001, Rule was issued. 4. Counsel for the petitioners was asked to obtain instructions whether the petitioners were ready and willing to shift the school and also close the shops. Counsel for the petitioner on instructions states that they are ready and willing to shift the school, but require time up to 31st May, 2010. It is stated that the school has been functioning for the last 15 years and is a recognized school up to class VIIIth. It is further stated that about 200 students are studying in the school. With regard to the 9 shops, counsel for the petitioners is unable to make any statement and in fact states that third party rights may come into existence. 5. It is further stated that about 200 students are studying in the school. With regard to the 9 shops, counsel for the petitioners is unable to make any statement and in fact states that third party rights may come into existence. 5. The petitioners have filed on record conveyance deed dated 2nd February, 2000 in respect of flat No. C-84, Jhilmil Colony Scheme for transfer of constructed structure with sanitary and electrical fittings. The petitioners have placed on record perpetual lease deed dated 2nd February, 2000 in respect of 57.50 sq. yards of land. The petitioners cannot occupy government land or claim any right beyond what is conveyed to them under the conveyance deed and the perpetual lease deed both dated 2nd February, 2000. The respondent, MCD, therefore, are entitled to remove encroachment on their land. The petitioners cannot object to or contest the right of the respondent-MCD. The respondent-MCD may not have even initiated proceedings under the Act. MCD have the power to remove encroachment from public land and ensure that public land is not unauthorizedly and illegally occupied by third persons. In fact, it is the duty of the respondent-MCD to ensure that public land is not occupied unauthorizedly and encroached upon. Thus the petitioner cannot object and claim that they are entitled to remain in occupation of MCD land and their possession should be protected. Further the petitioners cannot and should not be shown indulgence under the discretion jurisdiction conferred under Articles 226 and 227 of the Constitution of India. Direction to remove unauthorized construction is also justified and in accordance with law. 6. The statement made by the counsel for the petitioners that they should be temporarily allowed to continue the school till 31st May, 2010, is accepted, subject to the condition that the school will run and operate within the premises allotted to the petitioners under the conveyance deed and perpetual lease deed both dated 2nd February, 2000 i.e. flat No. C-84, Jhilmil Colony Scheme and area of 57.50 sq. yards. This indulgence is being shown in view of the fact that the petitioners have been enjoying benefit of stay order passed on 7th December, 2000 and it is pointed out that about 200 students are studying in the school, which is being running from the premises and any immediate closure order will have adverse consequences on future of these students. This indulgence is being shown in view of the fact that the petitioners have been enjoying benefit of stay order passed on 7th December, 2000 and it is pointed out that about 200 students are studying in the school, which is being running from the premises and any immediate closure order will have adverse consequences on future of these students. It is made clear that no further extension of time will be granted to the petitioners to shift. 7. The respondent-MCD are entitled to take action as per law with regard to the 9 shops constructed in the premises and in terms of the order passed under the Act. In case permission/approval in respect of the said shops has been obtained from the MCD or local authorities, the said aspect will be kept in mind by the respondent-MCD before taking any action. 8. The petitioners should remove all unauthorized construction in flat No. C-84, Jhilmil Colony Scheme and plot measuring 57.50 sq. yards allotted to them under perpetual lease deed dated 2nd February, 2000 and unauthorised construction and encroachment on public land within four weeks. Thereafter, the respondent-MCD will be at liberty to take action in accordance with law. In case the petitioners carry out the said demolition and remove all unauthorized construction and encroachment amount of Rs. 5,00,000/- deposited by them in this Court will be released to the petitioners on or after 31st May, 2010 on their complying with the directions given above. If demolition and encroachments are not removed within four weeks, the respondent-MCD will be also entitled to claim, in terms of the impugned orders, additional payment for demolition of unauthorized construction in the flat No. C-84, Jhilmil Colony Scheme and plot measuring 57.50 sq. yards allotted to the petitioners under perpetual lease deed dated 2nd February, 2000 or encroachment from public land etc. The total amount, however, will not exceed Rs. 16,00,686/- awarded by the Estate Officer. In case, any further or additional expenses are incurred by the respondent, MCD, they shall be entitled to initiate recovery proceedings for the said amount under the Act. The Writ Petition is accordingly disposed of.