* % + IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision:
19. h September, 2018. W.P.(C) 6367/2018 MAHESH JAIN Through: Mr. Shekhar Nanavaty, Adv. ........ Petitioner
DELHI CANTONMENT BOARD AND ANR ......... RESPONDENTS
Versus Through: Mr. Anchit Sharma, Mr. Tarveen Singh Nanda and Mr. Adil Pratap Singh, Advs. with Mr. Alkesh Sharma, Engineer, Delhi Cantonment Board. Ex. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW This petition under Article 226 of the Constitution of India was 1. preferred impugning the judgment [dated 23rd December, 2017 in PPA No.3/2013 of the Court of District Judge (South-West) acting as Appellate Officer under Section 9 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (PP Act)]. of dismissal of the appeal preferred by the petitioner against the order dated 5th November, 2012 of the respondent no.2, being the Estate Officer of the respondent no.1, in exercise of powers under Section 5C(1) of the PP Act of sealing of the work of unauthorised construction in property no.3/4/35, Delhi Cantt.
2. This petition came up first before this Court on 1st June, 2018 when notice thereof was ordered to be issued, the record of the District Judge acting as Appellate Officer as well as record of the respondent no.2 Estate W.P.(C) 6367/2018 Page 1 of 6 Officer was requisitioned and on statement of the counsel for the petitioner that the petitioner was willing to remove the unauthorised construction on account of which the property has been sealed, it was further directed that the petitioner may make a representation to the respondents and the respondents were directed to take a decision thereon within six weeks thereof.
3. On the next date i.e. 8th August, 2018, none appeared for the petitioner and the counsel for the respondents also was not able to inform the Court of the relevant facts and the hearing was adjourned to today with a direction that the concerned officer of the respondents, aware of all the facts and in a position to take a decision, to remain present in the Court.
4. The counsel for the respondents states that Mr. Alkesh Sharma, Executive Engineer of the respondent no.1 is present in the Court with the records.
5. The counsel for the petitioner states that (i) the petitioner, in accordance with the order dated 1st June, 2018 supra, made a representation dated 11th June, 2018 to the respondent; (ii) the respondent, vide its letter dated 12th July, 2018, sought the representation to be resubmitted along with documents mentioned in the said letter; (iii) that the petitioner, under cover of its letter dated 17th July, 2018 submitted the documents sought; and, (iv) the respondent, vide its letter dated 4th August, 2018, sought some more documents from the petitioner and which the petitioner has submitted on 17th September, 2018.
6. The counsel for the petitioner also states that the petitioner is willing to give an undertaking to this Court to, of his own, demolish the W.P.(C) 6367/2018 Page 2 of 6 unauthorised constructions which cannot be compounded/regularised. It is argued that recording the said undertaking, the seal imposed on the property since 5th November, 2012 be removed and the property be de-sealed for the purposes aforesaid.
7. The counsel for the respondents states (i) that the order dated 5th November, 2012 was in the nature of an interim order pending proceedings under Section 5B of the PP Act for demolition of the unauthorised construction; (ii) that the proceedings under Section 5B of the PP Act, though were initiated but remained in abeyance since the District Judge, during the pendency of the appeal aforesaid preferred by the petitioner against the order of sealing, had requisitioned the files of the Estate Officer; (iii) resultantly, during the pendency of the appeal aforesaid, the premises remain sealed; (iv) that simultaneously with the initiation of proceedings under Section 5B of the PP Act, proceedings under Section 248 of the Cantonments Act, 2006, also for demolition of unauthorised construction were also initiated; (iv) orders dated 31st July, 2012, 8th August, 2012 and 21st August, 2012 were passed in proceedings under Section 248 of the Cantonments Act; (v) that the petitioner has preferred appeals under Section 340 of the Cantonments Act against the orders dated 31st July, 2012, 8th August, 2012 and 21st August, 2012 in proceedings under Section 248 of the Cantonments Act; (vi) the orders in the said appeals were reserved on 13th August, 2018; (vii) that after the dismissal of appeal aforesaid before the District Judge against the order dated 5th November, 2012, Section 5B proceedings also were rekindled and are to be heard. W.P.(C) 6367/2018 Page 3 of 6 8. The counsel for the petitioner admits the aforesaid and draws attention to the Section 248 of the Cantonments Act to contend that thereunder also, the petitioner is entitled to compounding/regularisation of unauthorised construction.
9. The aforesaid would demonstrate that owing to the petitioner having preferred an appeal before the District Judge against the order dated 5th November, 2012 of sealing and which appeal remained pending for inordinately long period of five years, the proceedings initiated by the respondent for demolition also remained in abeyance. Inspite of the aforesaid facts, the counsel for the petitioner on 1st June, 2018 before this Court, sought liberty for making a representation and a direction to the respondent to consider the said representation.
10. I am of the opinion that when the question, whether the construction is unauthorised or not and/or how much of the construction is unauthorised and/or how much of unauthorised construction if any is regularisable/compoundable is at large in two properly constituted statutory proceedings under Section 5B of the PP Act and Section 248 read with Section 340 of the of the Cantonments Act, opening up of a third front at this stage, by directing consideration of the representation aforesaid, will lead to further complexity. It is further felt that this Court, in this petition, after nearly six years from the order of sealing should not enter into the question of validity of the order of sealing under Section 5C(1) of the PP Act and which will necessarily entail taking at least a prima facie view on, whether the construction is unauthorised. More so when the statutory proceedings in W.P.(C) 6367/2018 Page 4 of 6 which also the said question is to be decided are at final stages and when the petitioner also admits at least some part of construction to be unauthorised.
11. It is yet further felt that proceedings, both under Section 5B of the PP Act and under Section 248 read with Section 340 of the Cantonments Act and both for the same purpose, need not be pursued. Both counsels agree that since the proceedings under the Cantonments Act are at a much advanced stage, the same be pursued with liberty to the parties to seek remedies, if remain aggrieved therefrom.
12. This petition is thus disposed of in terms of above. However, since the counsel for the petitioner has expressed apprehension of delay and the property has in any case remained sealed for long, it is deemed appropriate to make the decision of the appeal under Section 340 of the Cantonments Act time bound. The counsel for the petitioner at this stage states that the Appellate Authority under Section 340 of the Cantonments Act may re-hear the petitioner, also on its representation aforesaid.
13. This petition is disposed of with the following directions:-
"(i) That the Appellate Authority under Section 340 of the Cantonments Act to, within ten days hereof, intimate to the petitioner, also through the counsel for the petitioner, the date of re-hearing of the appeal aforesaid qua the representation dated 11th June, 2018 read with 17th September, 2018 supra of the petitioner. (ii) The said hearing be completed on or before 12th October, 2018 and the Appellate Officer to pronounce orders on the appeal on or before 31st October, 2018. W.P.(C) 6367/2018 Page 5 of 6 (iii) The parties, if remain aggrieved shall have remedy against the order of the Appellate Officer. (iv) The proceedings under Section 5B of the PP Act be abandoned, as desired by the counsel for the petitioner. RAJIV SAHAI ENDLAW, J.
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