* IN THE HIGH COURT OF DELHI AT NEW DELHI % + Date of Decision:
13. 05.2013 W.P.(C) 3104/2013 & CM 5888/2013 (stay) SANJEEV BHATIANI ..... Petitioner Through: Mr. Shekhar Nanavaty, Adv. versus CHIEF EXECUTIVE OFFICER & ANR Through: ..... Respondent Mr. Sunil Satyarthi, Adv. for R-1& 2 CORAM: HON'BLE MR. JUSTICE V.K.JAIN JUDGMENT V.K.JAIN, J.
(ORAL) The petitioner is the occupant of the property bearing number III/I/2E, Shastri Bazar, Delhi Cantt-10 which is situated in Delhi cantonment area and is therefore governed by the Cantonment Act, 2006. Vide notice dated 13.7.2012, the Chief Executive Officer of Delhi Cantonment, in exercise of the powers conferred upon him by sub section (1) of Section 248 of the Cantonment Act, 2006, directed the petitioner to stop erection/re-erection in the aforesaid property and also directed that the erection completed by him should be demolished within 30 days from the receipt of the said notice. The following was the erection / re-erection in the aforesaid property: Offender is casting RCC columns and column footings to an area measuring 21.00 mx4.75 m behind premises no.111/1/11, (Baba Fancy Store), Shastri Bazar, Form work for RCC columns was in progress at the time of inspection on 12.7.2012.
2. This notice issued to the petitioner was followed by subsequent notices dated 16.7.2012, 23.7.2012, 8.8.2012, 22.8.2012, 27.8.2012, 3.9.2012 and 14.9.2012. The construction impugned in the aforesaid notices reads as under: Offender is constructing brick wall after casting RCC columns to an area measuring 21.00 mx4.75 m behind premises no.III/I/II, Shastri Bazar. Brick work in walls was in progress at the time of inspection on 16.7.2012. Offender is erecting RCC Columns and excavating Column footings to an area measuring 21.00 m x 4.75 m behind premises no.111/1/II, Shastri Bazar. Excavation in column footings and casting of RCC columns was in progress at the time of inspection on 20.7.2012. He has erected RCC slab to an area measuring 18.20 mx4.15 m at an height of 1m above the footpath level and starts raising brick walls over it. Brick work in walls was in progress at the time of inspection on 6.8.2012. He is constructing one hall at ground floor measuring 18.20mx4.14 m using brick and RCC columns and a chajja measuring 0.90 m wide. Form work and binding of reinforcement to roof slab was in progress at the time of inspection on 18.8.2012. He has provided RCC roof to an area measuring 18.20 m x 4.15 m at G/F and starts raising RCC columns at 1st floor. RCC work in columns was in progress at the time of inspection on 27.8.2012. He is constructing 1st floor of an area measuring 18.20 m x 4.15 m by using RCC pillar and brick work. Form work and binding of reinforcement to roof slab of 1st floor was in progress at the time of inspection on 3.9.2012. He is constructing IInd floor after casting RCC roof at 1 st floor having area 18.20m x 4.15 m by using RCC pillars and brick work. Brick work in walls at IInd floor is in progress at the time of inspection on 14.9.2012. The notices thus indicate that despite receiving notice from time to time, the petitioner continued to make construction.
3. Section 340 of Cantonment Act, 2006 provides that any person aggrieved by any order described in the third column of Schedule V may appeal to the Appellate Authority specified in that behalf in the fourth column of the said Schedule. Clause 14 of Schedule V provides for an appeal to the Principal Director against a notice to stop erection or re-erection or to alter or demolish a building in a civil area. The case of the petitioner is that the property in question is situated in civil area and, therefore, an appeal does not lie to the Principal Director against the aforesaid notice and admittedly an appeal has already been filed by the petitioner which is pending before the Appellate Authority.
4. The contention of the learned counsel for the petitioner is that the notice issued to the petitioner from time to time are illegal, the same having been issued without following the principles of natural justice since no show cause was given to the petitioner before directing him to stop erection and demolishing the construction mentioned in the notice. In my view, the petitioner cannot avail two remedies simultaneously, one by way of a statutory appeal and the other by way of a writ petition. The petitioner having preferred a statutory appeal before filing of the writ petition, it was not opened to him to challenge the notice issued to him by Chief Executive Officer of the Cantonment Board in this writ petition. It is very much open to the petitioner to inter alia plead before the Appellate Authority that the notice issued to him is bad in law since no prior show cause notice was given to him.
5. The petitioner is seeking interim relief in this petition against demolition by the respondents. In my view, no relief can be granted to the petitioner in this regard for two reasons. Firstly, the notice issued to the petitioner does not say that in case he fails to demolish the erection/re-erection, subject matter of the notice, it would be demolished by the Cantonment Board, and secondly and more importantly the interim relief which the petitioner is seeking in this petition can also be sought from the Appellate Authority. It is only in the event of the appeal being dismissed or no interim relief being granted by the Appellate Authority, that the petitioner can seek to avail such other remedy as may be available to him in law. But, since the appeal is pending, the writ petition claiming an interim relief, as is claimed in the appeal, is not an appropriate remedy.
6. For the reasons stated hereinabove, the petition is hereby dismissed. There shall be no orders as to costs. V.K. JAIN, J MAY 13.2013/rd