The Delhi High Court recently said that no property can be demolished on the ground of unauthorised construction without giving the owner an opportunity for a hearing.

Justice C Hari Shankar, while passing the order, said, “To my mind, there can be no question of demolishing any property on the ground that it is unauthorised, 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 further said 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 defence to offer.

This order has been passed by the High Court on a civil suit filed by Hnunpuii, a resident of Chattarpur, Delhi.

The petitioner praying for demolition has alleged that a person namely Ambawat was raising illegal and unauthorised construction on the seventh and eighth floors of the suit property.

The court that the Municipal Corporation of Delhi (MCD) in its response had said that the entire property in question was unauthorised and therefore it was booked for demolition.

A civil suit was also filed by Ambawat for the demolition of alleged illegal construction by Hnunpuii in her flat. He had sought direction to MCD and a restraining order to future illegal construction.

Thereafter the petitioner Hnunpuii had moved for a stay on the civil suit filed by Ambawat. She contended that the outcome of the suit could have an effect on her pending suit against Ambawat.

The application moved by Hnunpuii was dismissed by the Senior Civil Judge (SCJ). Thereafter she had moved the High Court challenging the order passed by the SCJ.

“What is required, for a trial in a later suit to be stayed, during the pending of an earlier suit, is unity and identity of the subject matter in issue in two suits, to the extent that a final decision in the former suit would operate as res judicata in the latter,” the bench observed in an order dated August 30, 2022.
The bench further observed, “A triple identity test has been identified by the Supreme Court: there must be the identity of cause of action, the identity of subject matter, and identity of relief. Overlapping is insufficient. What is required is identity.”

The court said that none of the indica is satisfied in the present case. The court added that the rejection of the petitioner’s application, by the order of June 1, 2022, by SCJ, calls for no interference.

The court clarified that SCJ would ensure that any action against the property of the petitioner is undertaken only after compliance with the principles of natural justice.

The bench observed, “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.”