Demolition Action Cannot Be Taken Against Allegedly Unauthorised Property Unless Owner/ Resident Is Given Adequate Opportunity Of Hearing: Delhi HC

The Delhi High Court has observed that a property cannot be demolished on the ground that it is unauthorized, unless the owner or resident is given an adequate opportunity of hearing.

Justice C Hari Shankar added that it is no answer to compliance with the principles of natural justice to contend that if an opportunity was granted, the persons affecting would not have had any defense to offer.

"To my mind, there can be no question of demolishing any property on the ground that it is unauthorized, until and unless the person owning the property and/or in possession of/residing in the property, are given an adequate opportunity of hearing and due principles of natural justice are complied with," the Court observed.

A civil suit was filed by the plaintiff namely Hnunpuii (petitioner herein) alleging that one Ambawat (respondent herein) was raising illegal and unauthorized construction on the seventh and eighth floors of the suit property, praying that the same be demolished. The Municipal Corporation of Delhi (MCD) in the written response submitted that the entire property was unauthorized and booked for demolition.

Ambawat then filed a suit against the plaintiff seeking a direction to MCD to demolish the allegedly illegal construction carried out by Hnunpuii in her flat and also for a permanent injunction not to carry out any such illegal construction in future.

The petitioner then moved an application seeking a stay of trial in the civil suit instituted by the respondent against her, asserting that it involved identical and cognate issues, the outcome of which could affect her pending suit.

The Senior Civil Judge however rejected the said application, order of which was challenged before the High Court.

The High Court observed that what is required for a trial in a later suit to be stayed, during the pendency of an earlier suit, is unity and identity of the subject matter in issue in the two suits, to the extent that a final decision in the former suit would operate as res judicata in the latter.

"A triple identity test has been identified by the Supreme Court; there must be identity of cause of action, identity of subject-matter, and identity of relief. Overlapping is insufficient; what is required is identity," it added.

Upholding the impugned order, the Court clarified that the Senior Civil Judge would ensure that any action against the petitioner's property is undertaken only after the compliance with the principles of the natural justice.

"It goes without saying that if, even while the suit is pending, the petitioner's property is demolished, nothing would survive for adjudication in the suit. These aspects are required to be borne in mind by the learned SCJ while proceeding ahead in the suit," the Court ordered.

The plea was accordingly disposed of.

Case Title: MS HNUNPUII v. MUNICIPAL CORPORATION OF DELHI & ANR.

Citation: 2022 LiveLaw (Del) 825

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