ORDER
Devinder Gupta, J.
1. Petitioner is a resident of Bapu Park, Kotla-Mubarakpur, New Delhi, which is the area stated to be lying between South Extension Part-I, defense Colony and Lodhi Colony. Petitioner’s case is that Bapu Park is adjacent to Blocks C and D of South Extension Part-I, New Delhi. The colony was developed and its plan was duly sanctioned by MCD. The remaining area was acquired by the Government. Compensation was paid to the owners. Because of the inaction on the part of the authorities, certain persons occupied the area, which belonged to Government and carried out new constructions. Some of the persons occupied the main road. Petitioner’s grievance has been that the respondent authorities have failed and neglected to discharge their statutory obligations despite various representations made by him for removal of illegal encroachment made within the area, which is sandwiched between Blocks C and D of South Extension Part-I and Subhas Market. According to him, mainly there were three cases of encroachment by K.D. Chaudhry, Surender Rastogi and Om Prakash (Respondents Nos. 4, 5 and 6). The petitioner has prayed for the following directions:-
(i) Issue a writ in the nature of Mandamus directing the respondents authorities to remove all illegal encroachments within the area sandwiched between Blocks C & D of South Extension Part-I, New Delhi, Village Pilanji and Subhash Market, New Delhi including the encroachments at point marked ‘X’ and those being constructed by Surendra Rastogi and Om Prakash as mentioned in paras (g) and (h) of the petition.
(ii) Issue a writ in the nature of Mandamus directing the respondents, Delhi Police to remove the public nuisance under Section 133 of the Code of Criminal Procedure and also under Sections 268 and 448 of the Indian Penal Code and Sections 83, 84
of Delhi Police Act.
2. On 10.3.1992, while issuing show cause notice on petitioner’s miscellaneous application, a direction was issued that in the meanwhile no construction, contrary to bye-laws or building plans shall be made or continued and it is the duty of the police to see that the order is complied with.
3. When despite service of notice and time being granted for the purpose, respondent-MCD filed to file any reply, a specific direction was made on 16.4.1992, calling upon the Commissioner to file reply after visiting the area within a period of three weeks. The Commissioner was directed to remain present in Court in case no reply was filed. Pursuant to these directions, P.V. Jaikrishnan, Commissioner, MCD filed his affidavit stating that in compliance with the order, he had himself inspected the area of Bapu Park on 5.5.1992. It was further stated that the records relating to lay out plans, development plans and road alignment etc. were still with DDA, therefore, it was not possible to distinctly identify the status of the land, alleged to have been encroached upon. However, it is stated that as per inspection carried out on 5.5.1992, some encroachment was found to have been made. As per this affidavit, directions had been issued to remove the temporary encroachment. The affidavit reads:-
“I had also seen unauthorised construction of basement on a plot of land between House No. 43 and 65 which has been marked as ‘X’ on the plan attached with the writ petition. I have seen the records. This unauthorised construction of basement was booked for demolition on 13.2.92. Said construction has been carried out at the instance of K.D. Chaudhary. Show cause notice under Section 343 was issued, a copy of which is Annexure ‘A’. No reply was received and as such, DEMOLITION ORDER WAS PASSED, a copy of which is Annexure ‘B’. A show cause notice for sealing of unauthorised construction was issued, a copy of which is Annexure ‘C’. No reply to this was also received and as such, the basement was sealed on 13.4.1992 vide orders, a copy of which is Annexure ‘D’. That I have also seen the road linking Subhash Market to Bapu Park. As mentioned in the writ petition I saw that one Shri Surendra Rastogi has erected two storeyed house without sanction. This unauthorised construction is being proceeded against in accordance with the provisions of the D.M.C. Act.
That I have also seen the site which is alleged to have been encroached upon by one Shri Om Parkash. He has erected a double story house on Plot No. S-29. This construction has also been booked on 1.5.1992 and is being proceeded against in accordance with the provisions of the D.M.C. Act. I may, however, point out that by reason of this construction, the road leading to Village Pilanji has not been blocked. However, so far as the question regarding the road leading to Village Aliganj is concerned, in the absence of lay-out plan/road alignment plant etc. it cannot be determined as to whether there is any blockade or not?
That the entire remaining area of the revenue estate of Kotla Mubarakpur was urbanised vide Notification No. F.9(2)66 Law. Copn. dated 28th May, 1966 and no construction can be carried out without sanctioned of the answering respondent.”
4. Taking note of the stand taken in the affidavit of the Commissioner aforementioned, further directions were issued on 24.3.1993 calling upon the respondents to inform the Court as to what was the latest position and what action, if any, had been taken by the Corporation, pursuant to the orders, stated to have been issued by the Commissioner. The order dated 24.3.1993 reads:-
“We have seen the affidavit dated the 7th May, 1992 of Sh. P.V. Jaikrishnan, Commissioner, M.C.D. in which he has referred to illegal construction and also some encroachment during his visit to Kotla Mubarakpur, Delhi. It is also stated in the affidavit that he has passed certain orders but the counsel for the respondent is unable to tell us what has happened thereafter.
Counsel for the petitioner states that further illegal construction has taken place and whereas in the case of Mr. Surender Rastogi, it is further alleged by the counsel for the petitioner that some properties were sealed but the seal has been removed. We, hereby direct Mr. P.V. Jaikrishanan, Commissioner, M.C.D. to himself file another affidavit in continuation of his earlier affidavit dated the 7th May, 1993 and inform the court as to what is the position as of today and what action was taken by the Corporation pursuant to the orders which he had himself passed which are referred to in his earlier affidavit of 7th May, 1992. If necessary, the Commissioner may visit the area in question once again. The affidavit be filed within a week from today.
To come up on 2nd April, 1993.
Copy of the order be given ‘dasti’ to the counsel for the M.C.D. duly certified by the Court Master of this Court.”
5. In response to the aforementioned directions, P.V. Jaikrishnan, Commissioner, MCD filed further affidavit stating:-
“I have inspected the area of Bapu Park, Kotla Mubarakpur, New Delhi again on 31st March, 1993 in pursuance of order dt. 24th March, 1993.
That the colony of Bapu Park, Kotla Mubarakpur, New Delhi is an unauthorised colony and all the houses have been constructed without getting the building plans sanctioned as required under Delhi Municipal Corporation Act and the Building Bye Laws made thereunder.
That I have again inspected the corner between Plot No. 43 and Plot No. 65 on 31st March, 1993 and found it was still sealed and no further construction has taken place. It was in the same condition as it was on my earlier inspection.
So far as the house of Surender Rastogi is concerned, it is Plot No. 169, it is a double storeyed building comprising of Ground Floor, First Floor and no further construction has taken place in this building also. Show cause notice in respect of this unauthorised construction was issued on 1st May, 1992. No reply to the show cause notice was received and as such demolition notice was issued on 5th May, 1992. Copy of the show cause notice and demolition notice is effectively ‘RE’. There is no encroachment on the public street except that there is some projections on Municipal land.
That the property of Sh. Om Prakash is S-29 and this property consists of Ground Floor, First Floor and part of Second Floor. The building line of this property is in line with other properties in the area but there are some projections on the Municipal land. Show cause notice in respect of this property was also issued on 1st May, 1992. No reply was received and as such, demolition orders were passed on 5th May, 1992. A copy of the how cause notice and the demolition order/demolition notice in ‘RF’.
That a rough plan of the area of Bapu Park was also got prepared. Copy of the plain is Annexure ‘RG’. The property of these 3 persons has been shown in Red. Property between Plot No. 43 and 65 (65) is marked ‘X’, the property of Sh. Surender Rastogi is marked ‘Y’ and that of Sh. Om Prakash is marked ‘Z’. The building line in respect of the property of Sh. Surender Rastogi and Sh. Om Prakash is the same as of other properties in the street except some projections on the Municipal land. There has been no further construction since my last inspection.”
6. On 1.9.1994, the Court took notice of the submission made on behalf of respondent No.6 that while the petitioner was making allegations against respondent Nos. 4, 5 and 6, the petitioner does not possess any sanctioned plan of his building. By the following order, the petitioner was directed to file an affidavit as to whether he had any sanctioned plan and as to whether there is any approved lay out plan:-
“Notice to the respondents 4 and 5 for 8th December, 1994.
Learned counsel for the respondent No. 6 submitted that while the petitioner is making allegations against respondents Nos. 4, 5, 6, the petitioner does not himself have any sanctioned plan of the petitioners building. He also referred to us the findings in the Panchayat Letter dated 24th March, 1992 which contains a finding of encroachment by petitioner and another into a road. The petitioner contends that his building was regularised. We find that this Panchayat is dated 24.3.92 while the regularisation was in 1986 as per certain documents produced before us by the petitioner. Respondents, therefore, submit that petitioner has himself encroached into the road after 1986 as found by the Panchayat in 1992.
It may also be noted here that learned counsel for the M.C.D. does not, however, accept that there is any regularisation of colonies or whether it was regularised.
We have repeatedly questioned the petitioner’s counsel to inform us if the petitioner has any sanctioned plan for his building. We have also asked him to tell us if any lay-out plan is approved by any of the local authorities. Learned counsel for the petitioner is not able to inform us whether he has a sanctioned plan in his favour. He was suggesting to us that the sanctioned plan should be called from the M.C.D.. The case of the M.C.D. is that the whole colony is unauthorised and none of the residents including the petitioner has any sanctioned plan. In those circumstances, the question arises whether the petitioner has come to court with clean hands is a public interest litigation. We, therefore, direct the petitioner to file an affidavit as to whether there is any approved lay-out plan. If any such document is available, he shall file the same before the next date of hearing.
Interim order to continue.”
7. In response to these directions, the petitioner filed his affidavit, relevant part of which affidavit dated 6.12.1994 reads:-
“That it is submitted that the main case for which the petitioner came before this Hon’ble High Court has been ‘hijacked’ by the advocates of M.C.D. and advocates of encroachers. The petitioner had approached the Hon’ble High Court against encroachments on ‘public roads’ and on ‘Govt. land’. These encorachments on public roads and Govt. land have been identified by no less a person the then Commissioner of M.C.D. Mr. P.V. Jaikrishna, IAS and who is even today the Chief Administrator of M.C.D., i.e. higher in rank than the M.C.D. Commissioner. The M.C.D. advocate and advocates of encroachers are confusing the Court by making it out “Whether the Bapu Park Colony is a regularised Colony or not and whether permission to construct houses there has to be obtained from M.C.D. or not”. As stated above, it is not the case. It is a case of encroachments on public roads and Govt. land, which has to be removed. Why these encroachments have not so far been removed is for the M.C.D. to explain.”
8. On 8.12.1994, stand of respondents that the petitioner is himself guilty of unauthorised construction, was dealt with, when it was observed that it was for the Commissioner, M.C.D. to take action in accordance with law, in case there was unauthorised construction. On 8.3.1995, taking note of the situation, as reflected in the affidavit dated 2.4.1993 of the Commissioner that the Corporation had identified the unauthorised construction in the locality, which are subject matter of the petition, it was observed that it was strange that even after two and a half years, no action had been taken with regard to the demolition of unauthorised structure. The Commissioner was directed to take action, in accordance with law and proceed with the demolition expeditiously. This order was clarified on 30.3.1995 to the extent that it shall be sufficient compliance with the order, if demolition of unauthorised construction is carried out both in terms of what was stated in the affidavit dated 7.5.1992 and 2.4.1993 of the Commissioner. Again on 4.4.1995, it was clarified that action by the Commissioner should be in accordance with law. On 20.10.1995, M.C.D. was directed to file affidavit of Zonal Engineer, clarifying the status of the encroached portion. Pursuant to those directions, Naveen Garg, Zonal Engineer, Central Zone, M.C.D. filed his affidavit. As a dispute was raised with respect to what was stated in this affidavit, K. Venkataraman, Advocate was appointed as the Commissioner on 7.3.1996, who was directed to submit his report. After receipt of the report, order was passed on 15.5.1996 that prima facie the court was of the view that its order has not been fully carried out by the Zonal Engineer. Learned counsel for M.C.D. informed the Court that he would instruct M.C.D. to carry out the order of the Court and to submit compliance thereof. The case was adjourned from time to time and ultimately on 21.4.1997, R.C. Katyal, Assistant Engineer, Division-9, Central Zone, M.C.D. filed his affidavit stating that the unauthorised construction made by K.D. Chaudhry had been demolished and action report was submitted by way of affidavit dated 7.3.1996. There has been no change in the property thereafter. As regards property No. 169, Bapu Park of Surender Rastogi, the affidavit states:-
“On 13.3.97, the property was almost demolished/damaged but the beams and pillars could not be demolished due to the adjoining properties and limited working space. On 15.4.97, brick work and R.C.C. roof projection (in remaining portion) were demolished and the hanged R.C.C. slabs were demolished with the help of gas cutter and the property was made absolutely inhabitable.”
9. As regards property No. S-29, Bapu Park of Om Prakash, it is stated that after giving sufficient opportunity of hearing to Om Prakash, orders of demolition were passed. The owner failed to comply with the demolition order and thus the unauthorised construction became liable for demolition. The affidavit further states:-
“Attempts were made to demolish the unauthorised construction in the premises in question on 27.9.96, 13.3.97 and 15.4.97 but action could not be executed in respect of this property due to public resistance/hindrance created at site. The property is residential and occupied one and demolition action shall be taken in due course of time, as per policy.”
10. In view of what has been stated in various affidavits brought on record, pursuant to various directions issued in this case from time to time, no other or further direction deserves to be issued in this petition now except to direct the respondent Corporation to ensure that unauthorised portions of the construction, for which demolition orders have already been passed, namely property No. S-29 Bapu Park of Om Prakash, are demolished, in accordance with law, within a period of four months from the date of receipt of writ order of this Court and it will also ensure that no further unauthorised construction in the three properties of which cognizance was taken, takes place in future. Ordered accordingly.
11. As regards the petitioner’s alleged unauthorised construction, as per the affidavit of K.D. Chaudhry, it will be open for the M.C.D. to proceed in accordance with law and take action, whatever is permissible under law. With these directions, this writ petition stands disposed of.