JUDGMENT
Pradeep Nandrajog, J.
1. Petitioners pray that the impugned order dated 20.8.2004 passed by the Appellate Tribunal, M.C.D. and the sealing order dated 12.2.2004/12.3.2004 passed by the Deputy Commissioner, West Zone, M.C.D. be quashed.
2. The owner of land bearing municipal No.E-38, Rajauri Garden, New Delhi, obtained sanction to erect a building on the said plot. It is not in dispute between the parties that the owner obtained a sanction to construct 14 dwelling units in the building and as against the said number, 27 dwelling units have been constructed.
3. Sanction building plan would reveal that 3 flats could be constructed on the ground floor, but actual number of flats constructed are much more.
4. Not only has the builder constructed excess area, but while constructing, has so amalgamated the excess covered area with the sanctioned area and, thereafter, partitioned the same that the existing construction bears no resemblance to what has been san ctioned. This aspect would be clarified a little as we proceed along with the present judgment.
5. Petitioners purchased 3 units on the ground floor. These three units are one after the other towards the front of the plot. The total coverage of these 3 units includes the area where 1 of the 3 units on the ground floor was sanctioned and half area of the 2nd unit. Excess areas are also included in these 3 units. In other words, the 3 units purchased by the petitioners would conform to 1 + out of 3 sanctioned units plus additional constructions.
6. Petitioners not only purchased units which did not conform to the sanctioned building plans but went about amalgamating the same to convert them into a hall so that it could be put to commercial use.
7. MCD proceeded to take action. Petitioners filed an appeal before the Appellate Tribunal MCD being AT-MCD 224/2004 On 2.6.2004 Shri R.S.Lamba, attorney of petitioner No.1 and proprietor of petitioner No.3, being petitioner No.2 himself, made the following statement before the Tribunal:-
”Statement of Sh.R.S.Lamba S/O lt. Sh.K.S.Lamba R/o. D-1/18-B Rajouri Garden, aged 63 years on S.A. I am making the statement voluntarily, at my free will and on behalf of myself and other two appellants. I am ready to rectify the alleged unauthorized construction in the shape of amalgamation of flat No.1,2 and 3 in property bearing No.E-38 Rajauri Gard en, in conformity with the sanctioned building plan. Accordingly, I do not want to pursue this appeal. I may be given one months time to rectify this alleged unauthorised construction. For facilitating the rectification of unauthorized construction thproperty may be desealed for this period.”
(Emphasis underlined)
8. On the aforesaid statement, on 2.6.2004 the Appellate Tribunal directed desealing of the property with a condition that if the petitioners failed to comply with the undertaking, property will be resealed.
9. The property was desealed by the MCD but the petitioners did not do the needful. Indeed, it is highly improbable that petitioners can do the needful for the reason that the nature of unauthorized construction is such that till the petitioners do not either join the other co-owners on the ground floor or purchase the same, rectification is impossible.
10. Be that as it may, when matter was taken up by the Tribunal to ensure compliance of the undertaking furnished by petitioner No.2, the Tribunal passed an order on 2.8.2004 holding that the appeal had become infructuous. However, while so holding, Appellate Tribunal recorded the following:-
”Now the respondent has again filed a report which is accompanied by the sketch drawn as per sanctioned building plan and the existing structure and the partition walls erected by the appellant in compliance of his undertaking dated 2.6.2004 From the prusal of the report and the sketch filed by the respondent, I am convinced that the appellant has complied with his undertaking by erecting partition walls between the so called flats No.1,2,3. It is also made clear that the flats No.1,2,3 as mentioned n the order of sealing do not exist at the spot. This mentioning of flat No.1,2,3 in the sealing order appears to be notional reflection of the concerned officials.
Thus from the circumstances it appears that this appeal has become infructuous and the impugned order appears to have been waived by the respondent itself. During the arguments it was pointed out that the property bearing No.E-38, Rajauri Garden has been booked afresh for unauthorized construction in the shape of deviation/excess coverage against sanctioned building plan dated 19.8.80 at basement floor, ground floor, first floor, second floor and unauthorized construction of third floor vide file No.B/C/WZ/04/463 dated 28.6.04. The alleged unauthorized construction mentioned in the impugned order is also inclusive of the fresh booking for demolition.
In the light of the facts and circumstances as mentioned hereinabove I am of the opinion that in the light of the subsequent booking of the entire property by the respondent, this appeal has become infructuous and the same stands disposed of accordingly.
In other words the continuance of sealing of this premises will not serve any purpose as the respondent has initiated fresh action against him in respect of the entire property in question. With these observations and in the light of the order of this court dated 2.6.2004 this appeal stands disposed of. Copy of this order shall be sent to the respondent along with its original record and thereafter this file be consigned to record.”
11. Aggrieved by the observations in the order aforesaid passed by the Tribunal on 2.8.2004, MCD has filed an appeal before the Lt.Governor.
12. Petitioners moved another application before the Tribunal praying that in view of the order dated 2.8.2004, premises had to be desealed. The Tribunal did not agree. It passed the following order:-
”I have heard the parties and also perused the order of this court dtd.2.8.2004 vide which appeal was disposed of. From the perusal of the said order I am convinced that no specific direction was given to the respondent to deseal the premises. It is a so submitted by Sh.Dua that the respondent after taking the legal advice has already filed an appeal No.133/04 before the Hon’ble L.G. The second appeal is continuation of this appeal, therefore, no fresh direction in this matter from this Tribunal is rquired. However, the applicant can approach the court of Hon’ble L.G. for this purpose. With these observations this application stands disposed of. File be consigned to record.”
13. Present petition was filed, praying as noted in para 1 above. Shri Arun Bhardwaj, learned counsel appearing for the petitioners contend that order dated 2.8.2004 passed by the Tribunal is clear. The sealing order has been held to be inoperative. Counsel urged that in light of the observations of the Tribunal in the order dated 2.8.2004, impugned order dated 20.8.2004 cannot stand. Mr.Arun Bhardwaj further urged that merely because the MCD has filed an appeal against the order dated 2.8.2004 would not entitle MCD to continue with the sealing of the 3 units until and unless MCD obtains stay of the order dated 2.8.2004
14. Mr.Rakesh Kanwar, counsel for MCD contended that the appeal filed by the MCD was to expunge some of the observations in the order dated 2.8.2004 and especially the observation that the petitioners had complied with the undertaking given by Shri R.S.Lamba on 2.6.2004 Further, observations that the continuous sealing of the premises will not serve any purpose was also sought to be expunged. Counsel contended that admittedly, sealing order was not set aside by the Tribunal. He urged that the Tribuna has rightly passed the order dated 20.8.2004 as indeed the order of sealing was never set aside.
15. Since at the hearing held on 11.10.2004 counsel for the petitioner contended that unauthorized constructions have been removed and partition walls have been erected to conform to the sanctioned building plans, I had passed an order directing petitione rs to be present at site on 25.10.2004 when the Executive Engineer would make himself available. Petitioner was to show to the Executive Engineer as to how compliance was made with the sanctioned plans. It was directed that the petitioner would put no es of objection on the site plan itself if there was any disagreement. Likewise, Executive Engineer was directed to put his note of disagreement, if any, on the site plan itself.
16. On 26.10.2004 the Executive Engineer submitted an affidavit pointing out that the unauthorized constructions continue to exist.
17. On 26.10.2004 when arguments were heard counsel for the petitioners, to whom copy of the report was submitted made statement that the factual reflection in the report is correct. However, as noted above, counsel submitted arguments that the petitione rs had done the necessary rectification.
18. Position at site could be best understood in the context of para 3 of the counter affidavit filed by the MCD. The same reads as under:-
”3. That the MCD had sanctioned the building plan for the construction in property no.E-38, Rajouri Garden, New Delhi vide file no.567/B/HQ/80 dated 19.8.80. However, at the time of construction, the owner/builder carried out deviations/excess coverage at basement, ground floor, first floor and second floor and unauthorized construction of third floor. The plan showing the sanctioned construction and existing construction is annexed as Annexure-R-1. The area shown in red is the sanctioned area as per he sanctioned building plan. Originally, there were three dwelling units at the ground floor. The builder instead of raising construction at the ‘Red’ area, constructed the building at the area shown in ‘Yellow’ colour. The yellow hatched lines show te excess area covered at site. The builder raised the construction and marked the portions ABDC, CDFE and EFHG as flat no.1, 2 and 3 respectively which belong to the petitioners herein, though there were no flats as per the sanctioned plan. In the building raised by the builder the portions ABDC, CDFE and EFHG were separated by the walls raised at CD and EF respectively.”
19. As noted by me above, what has happened is that as against 3 flats to be constructed on the ground floor, shown in red area in annexure R-1 filed along with the counter affidavit, builder constructed additional areas shown in yellow. By amalgamating the additional areas with the sanctioned areas, builder repartitioned the same in a manner that more than 3 flats came into existence. Petitioners purchased 3 units carved out of sanctioned area attributable to 1 + flat plus additional unauthorizedly costructed areas. For the petitioners to conform to the sanctioned building plan, not only would the excess constructions shown in yellow in annexure R-1 would have to be demolished but internal partition walls would have to be raised as per sanctioned bulding plan pertaining to the place where 1 out of the 3 sanctioned flats on the ground floor has been sanctioned. Further the remaining 1/2 of the 2nd flat as per sanctioned building plans in possession of the petitioner would require to be regularized n conjunction with the other 1/2 portion of the said flat. This is an act of impossible performance because the petitioners own only half portion of the second flat.
20. In any case, it is not for this court to consider as to how petitioners carry out the rectification. What is relevant is, have the petitioners rectified the unauthorized constructions to conform to the sanctioned building plans.
21. Unfortunately no.
22. I cannot but restrain myself from commenting upon the casual manner in which the Appellate Tribunal has dealt with the matter. On 2.8.2004, without referring to the sanctioned building plan, the Appellate Tribunal recorded that the petitioners have complied with the undertaking given on 2.6.2004 Undertaking given on 2.6.2004 is categorical. Petitioners agreed to rectify the unauthorized constructions to bring the property in conformity with the sanctioned building plan. Without even understanding or appreciating what the sanctioned building plan, was the Appellate Tribunal recorded its satisfaction that the petitioners had complied with the undertaking. If this was so, I do not understand as to how the Tribunal went on to record that the appea has become infructuous. Logical culmination of what was recorded by the Tribunal was to have quashed the sealing order. It did not do so. Strangely enough the Tribunal proceeds to record in its order dated 2.8.2004 that unauthorized constructions in he shape of deviations and excess coverage vis-a-viz sanctioned building plans stand booked. The Tribunal thereafter recorded that notwithstanding the said booking of unauthorized constructions, continuance of sealing of the premises would not serve any purpose. I fail to understand the logic of the reasoning of the Tribunal.
23. The Tribunal has to some extent salvaged itself, when on 20.8.2004, it recorded that since it had not quashed the sealing order, it could not direct desealing of the premises.
24. No relief can be granted to the petitioners till as long unauthorized non-compoundable deviations continue to exist in the property. How the petitioners conform to law has to be sorted out by the petitioners along with the other co-owners of the property. I may note that entire property stands booked for unauthorised construction.
25. I find no merit in the petition. Dismissed.
26. No costs.