JUDGMENT
Devinder Gupta, J.
(1) In this petition filed under Article 226 read with Article 227 of the Constitution of India petitioners have prayed for issuance of appropriate directions for declaring the provisions of Delhi. Municipal Corporation Act (hereinafter called the Act) in regard to building and the bye laws as also the Delhi Municipal Corporation (Sealing of unauthorised Construction) Rules, 1986 (hereinafter called the Rules) as not applicable to the house in question, alleged to be situated in Village abadi (Lal Dora) in Khasra No.78 of village Khirki. As a consequence a direction has been sought restraining the respondents from sealing or demolishing the building or any part thereof, alleged to be forming a part of house No-181.
(2) It is alleged that the petitioners are joint owners of their ancestral house NO. 181 situated in village Khirki, Delhi which is located in old abadi of village Khirki and forms part of Khasra No.78 of village abadi. The area is located in Lal Dora. Petitioner’s forefathers had been living in the house and had been carrying on small storage activities. Certain renovations were carried out by the petitioners to the house covering the same area which was under house No.181, the old construction, with no additional construction. For carrying on their commercial activities, petitioners have municipal license also. When-building was complete in all respect, officials of respondents, without due process of law, proceeded to seal the premises and also served demolition order. Feeling aggrieved petitioner no.3 filed an appeal before the Tribunal. The orders of sealing and demolition were set aside and the respondents were directed to proceed in accordance with the law. Seals were directed to be re-opened. A detailed representation was thereafter submitted by the petitioners. It is the case of the petitioners that the respondents were proceeding ahead in the matter and were contemplating to issue fresh orders of sealing and demolition. Petitioners claim that the respondents have no jurisdiction in the matter since provisions of the Act and the Building Bye Laws are not applicable since the construction is standing within village abadi. Petitioners also alleged that the proceedings now under contemplation for sealing have not been initiated in accordance with law and it is the Commissioner alone who is authorised to pass appropriate orders for sealing. Orders not issued by the competent authority cannot be implemented and are liable to be set aside. It is alleged that even if provisions of the Act and Rules are applicable, the same cannot be made use of in the instant case for demolishing the property since construction as it exists today has been in existence for a considerable period and only repairs were carried out recently. On the basis of these allegations the aforementioned directions have been sought.
(3) Respondents in their reply filed on the affidavit of Gulam Haider, Zonal Engineer (Buildings), New Delhi have taken up a preliminary objection that there is not only mis-statement of facts but suppression of material facts due to which petition is liable to be dismissed. It is stated that petitioners have misrepresented that. action is being taken with respect to property, plot No-181 to which repairs have been carried out recently. In fact action is being taken with respect to basement and the ground floor of premises No. 181, Village Khirki, Malviya Nagar, New Delhi which were not in existence earlier .and have been constructed recently in violation of the provisions of the Act and Rules. Neither the basement nor the ground floor in its present state ever existed at the site earlier. It is denied in the counter affidavit that the property is situated within Lal Dora or abadi. According to the respondents the new construction has been carried out by the petitioner unauthorisedly in premises No. 181 which is situated on Khasra No-230-231, village Khirki. This village Khirki was duly urbanised and provisions of Delhi Municipal Corporation Act were made duly applicable to the area. According to the respondents after the earlier orders were set aside at the behest of petitioner N0.3, when the case was remanded, fresh orders for sealing the property were passed on 16.6.1993, which were duly served upon the petitioners and their remedy was by way of filing an appeal-only before the Appellate Tribunal, M.C.D., Delhi. It was Satish Kaushik, one of the co-owners, who after remand appeared before respondent No.2 on 26.5.1993 and it was after due notice that an order was passed on 16.6.1993. After remand, due notice of hearing was given to the petitioners. Event before Zonal Engineer, the petitioners continued to appear till 22.5.1993. On 21.6.1993 a separate order under Section 343 of the Act was also passed and the petitioners’ remedy against the same would be to file an appeal before the Appellate Tribunal, M.C.D., Delhi.
(4) After having heard learned counsel for the parties and after having gone through the records we do not find it to be a fit case for interference or for exercising extraordinary jurisdiction under Article 226 of the Constitution, since adequate and efficacious remedy is available to the petitioners. The petition was preferred before the orders for sealing were passed by the concerned authorities under the provisions of the Act. In view of the availability of an adequate and efficacious remedy of preferring an appeal under Section 345B of the Act before the Appellate Tribunal against an order of sealing issued under Section 345A of the Act and under Section 343(2) of the Act against an order of demolition, we are not inclined to exercise the extraordinary jurisdiction. There are disputed questions of fact arising for determination. The petitioners allege that the property is located within the Lal Dora of the Abadi of village Khirki situate on Khasra No.78, whereas the respondents have asserted that the construction is outside village Abadi and is located on Khasra Nos. 230 and 231. Copy of Aks Shajra has been placed on record by the petitioners. Khasra Nos. 230 and 231 adjoin village Abadi which is shown as Khasra No.78. The question whether the construction raised is or is not located on Khasra No.78 itself is a disputed question, which for want of evidence cannot be gone into in these proceedings. The qeustion, if raised before the appropriate authorities, will have to be decided in accordance with law. In case the petitioners have not chosen to file an appeal against the impugned orders of sealing, which came to be passed on 21.6.1993, namely, after the filing of writ petition, a direction can definitely be made that in case within a period of two weeks from today an appeal is preferred by the petitioners, the same will be entertained by the authorities by exercising its powers of condoning delay, if a request in that behalf is made by the petitioners. The appeal, if so preferred, will be heard and disposed of on merits. All questions which the petitioners have raised here in this petition can be urged and entertained before the concerned authorities in appeal. With these observations the writ petition is dismissed. It is also directed that for a period of two weeks from today, status quo will be maintained by both the parties as regards the premises in question. It will be open for the Appellate Tribunal, if appeal is preferred, to pass appropriate orders in accordance with law.