City Bursting At The Seams, Unauthorised Constructions Can't Be Allowed To Stand In Perpetuity: Delhi High Court

The Delhi High Court has said that unauthorized constructions are a bane to "orderly development" of the city, which is bursting at its seams, and they cannot be allowed to continue to stand in perpetuity.

Justice C Hari Shankar made the observation while dismissing a Delhi resident Sher Mohammad's plea challenging an order passed by Principal District & Sessions Judge on September 14.

Vide the impugned order, the trial court had rejected Mohammad's appeal against an order of the Appellate Tribunal of Municipal Corporation of Delhi.

Case Facts

MCD had issued a show cause notice in September 2011 alleging that unauthorized construction had taken place at Mohammad's property in Hauz Khas Village and later passed an order for demolition of the same. The demolition order was set aside by the high court in 2013 on technical grounds and the MCD was asked to pass a fresh order after considering Mohammad's reply.

In 2020, the corporation again issued a demolition order, on the basis of the 2011 show cause notice, alleging further unauthorised construction at the property. The order was challenged in appeal before the civic body's Appellate Tribunal which observed that Mohammad ought to have been heard before passing the December 2020 order. Accordingly, the Appellate Tribunal remanded the matter to the MCD for de-novo consideration.

Assistant Engineer (Buildings) again issued a demolition order in July 2021. The same was challenged in the Appellate Tribunal which upheld the direction to demolish the construction.

Mohammad's appeal against the Appellate Tribunal's order was rejected by the Principal District & Sessions Judge vide the impugned order.

The counsel appearing for MCD raised a preliminary objection regarding maintainability of the appeal. It was submitted that in the appeal against the order passed by MCD's Appellate Tribunal, a petition would appropriately lie under Article 226 and not Article 227.

Observations of the Court

Observing that availability of a remedy under Article 226 does not unquestionably foreclose a remedy under Article 227, Justice Shankar, however, added that the scope and ambit of the two provisions are "markedly different."

"Article 227 of the Constitution of India only confers superintending – or, more appropriately, supervisory - jurisdiction on the High Court. The High Court does not, under Article 227, judicially review the order passed by the hierarchically lower authority. Nor does it examine the correctness or otherwise, of the said order. It is only where the manner in which the lower judicial authority has acted calls for supervisory correction that the High Court would step in under Article 227 of the Constitution of India," the court said. 

The plea was thus dismissed, upholding the impugned order.

Title: SHER MOHAMMAD v. MUNICIPAL CORPORATION OF DELHI (SDMC)

Citation: 2022 LiveLaw (Del) 1070

Click Here To Read Order