JUDGMENT
Madan B. Lokur, J.
1. The Petitioners are aggrieved by an order dated 20th April 2004 passed by the Appellate Tribunal, MCD (for short the Tribunal) refusing stay of demolition of the 3rd and 4th floor of a building bearing property No. 29, Rama Park, Kishan Ganj, New Delhi.
2. Kanwar Lal Bansal purchased the property in question by a sale deed dated 7th December 1983. As per the sale deed the property consisted of five rooms, kitchen, latrine and bath. Kanwar Lal Bansal died on 16th May 1994 leaving behind three Wills dated 17th January 1994. In his Wills, Kanwar Lal Bansal bequeathed his property to the Petitioners and a son Anil Bansal who subsequently relinquished his share in the property by a release deed dated 21st August 2000.
3. The Wills dated 17th January 1994 and the release deed dated 21st August 2000 show that the property was a three storied construction, that is, ground floor, first floor and second floor with roof rights at least up to the date of the release deed.
4. On 7th February 2002 a First Information Report (FIR) was lodged by the Junior Engineer (Building) of the Municipal Corporation of Delhi (MCD) to the effect that unauthorized construction was going on in the property in question on the ground, first, second, third and fourth floor thereof. A request was made for taking action under the relevant provisions of the Delhi Municipal Corporation Act (the Act).
5. On the same day a show cause notice was issued to the Petitioners by the concerned authorities, but since no reply was received, the Petitioners were directed by an order dated 18th February 2002 to demolish the entire unauthorized construction on all the five floors.
6. Feeling aggrieved by the demolition order, the Petitioners preferred an appeal to the Tribunal being Appeal No. 138/AT MCD/2002. This appeal was disposed of on 27th August 2003 with a direction to the authorities to treat the demolition order as a show cause notice under Section 343(1) of the Act and liberty was granted to the Petitioners to produce before the concerned authorities documentary evidence to show that the construction on the property in question was not unauthorized. The Petitioners were asked to appear before the authorities on 22nd September 2003.
7. The Petitioners were given 11 hearings by the authorities between 22nd September, 2003 and 31st March, 2004. As per the order dated 6th April, 2004 passed by the Assistant Engineer (Building), Petitioner No.1 appeared on various dates of hearing but signed the proceedings only on three dates. No documents were filed to establish that construction was carried out on the property in question after getting the building plan duly sanctioned. Although several letters were filed by the Petitioners before the authorities, none of them confirmed or even suggested that construction on the property in question was not unauthorized. Accordingly, it was held that the construction on the property in question was unauthorized and was required to be demolished.
An appropriate order of demolition was accordingly passed.
8. Feeling aggrieved by the order dated 6th April, 2004, the Petitioners preferred another appeal before the learned Tribunal and this was registered as Appeal No.197/AT MCD/2004.
9. When the appeal came up for hearing before the learned Tribunal, it was observed that, at best, it could be said that construction up to the second floor had been made until 1994 and, therefore, an interim order restraining demolition up to the second floor may be passed pending further consideration of the matter. Consequently, the construction on the third and fourth floor was not given any protection against demolition.
10. On the basis of the order dated 20th April, 2004 passed by the learned Tribunal, the Respondent issued another demolition notice dated 12th May, 2004 for demolishing the third and fourth floor of the property in question.
11. The Petitioners then preferred the present petition. By an interim order dated 18th May, 2004, demolition was stayed for a few days. Thereafter, the petition was heard on 20th and 21st May, 2004.
12. It was submitted by learned counsel for the Petitioners that the construction was an old construction and, therefore, it ought to have been protected from demolition. It was submitted that the learned Tribunal had observed that the matter required consideration and consequently no precipitate action should be permitted to be taken by the Respondent.
13. A perusal of various documents on record as well as the orders passed from time to time clearly show that the property in question had, at best, a building only up to the second floor as per the release deed dated 21st August, 2000. When an FIR was registered on 7th February, 2002, construction on the third and fourth floor was going on. In other words, the Petitioners carried out construction on the property in question between 21st August, 2000 and 7th February, 2002. By no stretch of imagination can this be said to be an old construction particularly when a demolition notice was issued to the Petitioners on 18th February, 2002 for the first time and again on 12th May, 2004.
14. Despite adequate opportunities having been given to the Petitioners, they did not produce any material to show that the construction was authorized. Various representations were filed by the Petitioners before the authorities and these have been adverted to in the order dated 6th April, 2004. However, none of these representations addressed the question whether the construction was authorized or not. On an examination of the material on record, the authorities came to the conclusion that there was no material to show that construction on the property in question was authorized. Even the learned Tribunal, while giving the benefit of doubt to the Petitioners felt that they may perhaps have made out a case for an interim stay of demolition only with regard to construction up to the second floor, but there was no material to show that construction on the third and fourth floor was at all authorized.
15. Under the circumstances, it is not possible to accept the contention of learned counsel for the Petitioners that construction on the third and fourth floor of the property in question was an old construction and, therefore, requires protection from demolition. The issue whether any construction on the ground, first and second floors is an old construction and requires protection is a matter which will have to be decided by the learned Tribunal when it hears the appeal.
16. No perversity or manifest error is shown to have been committed by the authorities or even by the learned Tribunal.
17. The petition is dismissed. The Respondent is at liberty to demolish the third and fourth floor of the property in question, that is, 29, Rama Park, Kishan Ganj, New Delhi. The Respondent is at liberty to take necessary assistance from the law enforcement agencies.
18. The Petitioners will pay costs of Rs. 15,000/- to the Respondent.