Niraj Khandelwal v. Pradep Garg

Judgment dated 08.04.2013 Petitioner Through : Mr.V.K. God, Adv. versus PR ADEP GAR(} Through Respondent Mr.Anil Sapra, Sr. Adv. with Ms.Charul Sarin and Ms.Veena Agrish, Advs. for respondents no. 1-3. Mr.Gaurang Kanth, Adv. for respondents no.4 and 5. Mr.Yogesh Saini, Adv. forMr.V.K. 3andon, and Mr.Shariq Mohammad, Adv. for respondent no.6. COIL^M: IION'BLE MR. JUSTICE G.S.SISTANI G.S.SISTANI, J (ORAL)

¶1J3y the present writ petition, the petitioner seeks a direction to restrain respondents no.l to 3 from carrying out any unauthorized construction from the premises bearing no.10, Jamuna Marg, Civil Lines, Delhi. The petitioner further seeks directions to respondents no.l to 3 to remove the unauthorized construction from the premises in question; clear the construction material, debris, garbage; and repair the damaged and inundated road in front of the premises in question. A direction is also sought to respondents no.4 to 6 to remove/demolish any unauthorized construction or encroachment on the public land, footpath and road in the premises in question. A further direction is also sought to respondent no.7, Forest Department, to take suitable action foi-cutting down the trees 4453/2012 Pw^e I of 10 V" i f by respondents no.l to 3.

¶2Pleadingsin this matterare eomplete.With the consentofcounselfor the partieswritpetitionis set down for final hearingand disposal.

¶3The necessaryfacts, to be noticedfor disposalofthe presentwritpetition, are that the petitioneris a residentof Jamuna Marg, Civil Lines, Delhi. Respondentsno.l to 3 are also residing at Jamuna Marg, Civil Lines, Delhi. As per the writ petition, somewhere in the end of year 2010 respondentsno.l to 3 started constructionover their premises bearing no.10, Jamuna Road, Civil lines, Delhi, afresh.

¶4It is the case of the petitionerthat while constructingthe premisesafresh respondentsno.1to 3 have startedshiftingthe boundarywall in front of (JamunaRoad) and side lane of JamunaRoad by about 6-7 feet towards the publicroad, thus, encroachingand reducingthe width of the footpath on the main road (JamunaRoad) and width of side lane (Jamuna f.ane). ^ As per the petitioner,there is a danger of collision for vehicles coming from Jamuna Road and Jamuna I.ane as the same has become a bind alley, 'fhe petitionerhas been writingto variousauthoritiessince January,2011, informing them about the illegal acts earned out by respondents no.l to 3.

¶5Jhe complaint of the petitioner is that no action has been taken by any of the authorities to stop the illegal encroachment by respondents no.l to 3 on public land. A prayer in this writ petition was also made with regard to cutting of trees, however, the petitioner had made a statement that he does, not wish to press prayer no.5 and consequently respondent no.7, forest Department, was deleted from the array of parties.

¶6It has also been stated in the writ petition that the petitioner is not really aware about the illegal construction inside the premises, however, after the approval of the building plan on 18.10.2010 respondents no.l to 3 modified the building plans and included the extended boundary wall line fr.p.(Q 4453/2012 rage 2 of IV V althoughthe modifiedplanswere not approvedby the MCD. Respondents no.l to 3 have illegallyextendedthe boundarywall. Strongreliancehas been placedby counselfor the petitioneron the minutesofthe meetingof the BuildingPlan Committee,held on 8.8.2011, more particularlyItem No.10 as per which it was decided that the boundary wall would be maintained in the present proposal and at the same location as was existing in the earlier structure.It was further decided that an affidavit would submittedby the applicant(respondentsno.l to 3) to hand overthe remaining land coming in the right of way free of cost as and when required by the Corporation, however, a concession was granted to respondentsno.l to 3 that they may avail FAR on the area of the plot shown outside the boundarywall. The revised building plans were to be processedsubjectto othercorrectionsand compliances.

¶7Mr.Goyal, learned counsel for the petitioner,submits that respondents no.1 to 3 have erected a boundary wall, which is beyond the size of the plot; the boundarywall is on the public land and, thus, respondentsno.l to 3 have encroachedupon the publicland, whereasrespondentsno.4 and 5 have been mere spectators, who have allowed respondents no.l to 3 to encroach upon the public land.

¶8Respondents no.4 and 5 have filed a status report and a short affidavit. As per the status report dated 30.8.2012, it is stated that the building plans of the subject property were sanctioned by the Building (HQ), MCD, vide no.73/A/IIQ/2010. Further, as per the status report, the owner/builder has made certain compoundable deviations during construction and on the request of the owner the property has been regularized aflei-compounding charges were paid. A categorical assertion has been made by respondent no.4 in the status report that on inspection it was found that neitiier there is any unauthorized construction nor any. deviation against the regularized buildingplan at the site. While addressingthe issue on the questionof boundary wall the following assertions have been made in the status report: "5. That the owner has constructed boundary wall within his plot premises and hence, there is no encroachmenton public land, as well. However,the boundarywall has been constructedat the site within the plot .line. This aspect has been technicallyexamined, which revealed that the same is permissible under 6.41(g) of the Building Bye-Laws 1983."

¶9Pursuanttothe directionspassedby this Court,the MCD has filed another affidavit of Mr.A.K. Singh, ExecutiveEngineer (Building),Civil Lines Zone, NDMC, dated30.1.2013.The affidavithas reiteratedwhat has heen stated in the status report dated 30.8.2012,which has been filed. It was, however, pointed out that the regularizationapplicationof respondents no.l to 3 was processedand constructedwas regularizedunderthe orders of the competent authority after respondents no.l to 3 deposited the compounding charges of Rs.8,92,390/-. As per this affidavit after regularizationthe owner/buildermade some deviationsin the positionof boundary wall against the sanctionedbuildingplan. Thus, the property of the petitioner was booked vide file no.l 15/C-77/B/UC/CLZ/2012dated

9.7.2012 and a show cause notice no.18744 dated 9.7.2012 was served upon respondents no.l to 3. Thereafter an IftR was lodged against respondents no.l to 3. Reply to the show cause notice was filed wherein respondents no.l to 3 had clarified that the boundary wall is positioned on its boundary line since the year 1980 vide MCD sanctioned plan no.252/0l/IIQ/79. Respondents no.l to were also afforded an opportunity of personal hearing and thereafter the show cause notice dated

9.7.2012 was withdrawn by an order dated 14.8.2012. It has also been stated on affidavit that on inspection by the field staff, it has been noted W.P.(C) 4453/2012 I'liaeiofiO L. that the owner has constructedthe boundary wall within his premises and plot line. Hence, there is no encroachmenton the public land and, thus, this aspect has been technically examined and the examination has revealed that the construction of boundary wall is permissible under Clause 6.4.1(g) of the BuildingBye-Laws,1983.

10.A detailed affidavit has been filed by respondent no.3, who is also representedthroughcounsel.It is contendedby Mr.Sapra,learnedsenior counsel for respondentsno.l to 3, that the present petitionsuffers from siippressoveriandsuggestfalsi as the petitioneris well awarethatthereis no encroachmenton the public land. It is further stated that the present writ petitionis malafide,vexatiousand is, thus, liable to be dismissed.It is further stated by Mr.Saprathat respondentno.3 is the lawful owner of the property in question and he has carried out the constructionof a residentialhouse inconformitywith the buildingbye-laws,the provisions ofDelhi MunicipalCorporationAct and the MPD 2021. It is categorically stated in the reply affidavit that no unauthorized construction or encroachmentupon the public land has been made. Respondentno.3 had reconstructedthe boundarywall on the earlier boundarywall, which was in existence and moreoverno part ol the plot of respondentsno.l to 3 has ever been acquirednor any acquisitionproceedingshave been initiatedby respondents no.l to 3. It is further submitted that the petitioner only wants to pressurize respondent no.3 to surrender part of its private property so that the existing road can be widened for the purposes of parking of guests of the neighbours and various baseless complaints have been made to the Police and other civic agencies to harass respondents no.l to 3. It has also been stated by Mr.Sapra that respondent no.3 was not interested in surrendering his land to avail an additional FAR and, thus, he did not accept the offer of the MCD, which is evident from the lact that he has not taken any benefit of the additional FAR and more so a completion certificatehas been awardedby the MCD to respondentno.3, which leads to a conclusive finding that there is no unauthorised constructionor encroachment by respondent no.3 on the public land. It is further contendedby Mr.Saprathatbasedon the complaintmade by the petitioner a show cause notice was issued to respondentno.3; a detailedreply was fded; and after hearingthe parties,the show cause notice was withdrawn by an order dated 14.8.2012.Senior counsel iurther contends that even otherwiseafterthe filing of the writ petitionthe MCD has again satisfied itselfthat there is no encroachmenton the public land and ilirfnerthere is no unauthorizedconstructionby respondentno.3. Respondentno.3 has, thus, prayed that the writ petitionbe dismissedwith exemplarycosts ior harassingrespondentsno.l to 3 and for wasting a precioustime of the Court. 11 .Ixarnedcounselfor the petitionerwhile relyingupon a decisionrendered by the Apex Court in the case ofMA GohindPershadJagdishPmsad v. New DelhiMunicipalCommittee,reported at (1993) 4 SCC 69 submits that in case the land has been surrenderedby the owner for the benefitof the public, the same would no longer remain under the control of the owner and the owner would have no right at any time to prevent the public from using the same.

¶12Learned senior counsel for respondents no.l to 3 have relied upon a decision rendered in the case oi Madan Lai Gupta v. Municipal Corporationof Delhi & Ors., reported at 122 (2005) DLl 706 moie particularlyparas7 and 10, which read as under: '7. It has been further submittedthat the demand of 10% area of each sub-divided plot towards community facilities is not permissiblein the light of the judgmentof the Ilon'ble Supreme Ht/tfo 4453/2012 Page 6 of to Court in , Pt. Chet Ram Vashisht (dead) by [..Rs., v. Municipal Corporation of Delhi, which held as foliows;- "None of its provisions entitled the Corporation to claim any right or interest in the property of the owner. Sub-section (3) empowers the Standing Committee to accord sanction to the lay-out Plan on such conditions as it may think fit. The expression, 'such conditions' has to be understood so as to advance the objective of the provision and the purpose for which it has been enacted. The Corporation has been given : the right to examine that the lay-out plan is not contrary to any provision of the Act or the rules framed by it. For instancea person submittinga lay out plan may be required to leave certain open space or he may be required that the length and width of the rooms shall not be less than a particular measurement or that a coloniser shall have to provide amenitiesand facilitiesto those who shall purchase land or building in its colony. But the power cannot be construed to mean that the Corporation in the exercise of placing restrictions or imposing conditions before sanctioninga lay-out plan can also claim that it shall be sanctionedonly if the owner surrendersa portionof the land and transfers it in favor of the Corporation free of cost. Ihat <* would be contrary to the language used in the Section and violative of civil rights which vests in every owner to hold his land and transfer it in accordance with law. The resolution passed by the Corporation directing the appellant to transfer the space reserved for tube wells, school and park in its favor free of cost was depriving the owner of its property and vesting it in the Corporation against law. The finding of the Fligh Court that such condition did not amount to transfer of ownership and only it was only a transfer of the right of management cannot be accepted, llie two rights, namely, of ownership and of management, are distinct and different rights. Once a vacant site is transferred in favor of another free of cost then the person transferring it ceases to be owner of it. Whereas in transfer of right of management the ownership continues with the person to whom the IV.r. (C) 4453/2012 j property belongs and the loeal authority only gets rights to manage it. But the eonditions imposed by the Standing Committee elearly meant to transfer the ownership in favor of the Corporation. The Coiporation as eustodian of civil amenities and services may claim and that would be proper as well, to permit the Corporation to regulate, manage, supervise and look after such amenities but whether such a provision can entitle a Corporation to claim that such property should be transferred to it free of cost appears to be fraught with insurmountable difficulties, 'fhe law does not appear to be in favor of the Corporation. Public purpose is, no doubt, a very important consideration and private interest has to be sacrificed for the welfare of the society. But when the appellant was willing to reserve the two plots for park and school then he was not acting against public interest. This cannot be stretched to create a right and title in favor of a loeal body which utmost may be entitled to manage and supeiwise only."

¶10The permissionsbeing granted to the propertiesless than hall an acre leadingto hostile discriminationagainst the petitionerhas not been denied in the pleadings or even during submissions in Court. Kven de-hors the said unrebutted plea of discrimination,the petitionerin my view is entitledto succeed,'fhe petitionerclearly falls withinthe respondent'sown guidelinesbut for the involuntary deductionought to be made from the area owned by the petitioner on the basis of 10% free of charge area for community facilities.In my view as per the law laid down bythe Hon'bleSupremeCourt in Pt. diet Ram's case (supra), it would not be open to the MCD to acquire such an area for communitypurposes free of charge and if at all the MCD wanted it for the public purposes, the proper course under Land Acquisition Act ought to have been followed. The Ilon'ble Supreme Court has held in the above judgment that such compulsory acquisition is beyond the powers of Delhi Municipal Corporation."

¶13Mr.Sapra further submits that the Single Judge in para 7 of the Madan Lai Gupta (supra) has strong placed reliance on a decision of the Apex W. p. (C) 4453/2012 Page <V of 10 V Court in Pt. diet Ram Vashisht

(dead) by L.Rs. v. Municipal Corporation ofDelhi, reported at 1995 SCC 430.

¶14I have heard counsel for the parties and also considered their rival submissions. The submission of counsel for the petitioner is firstly that respondents no.l to 3 have carried out unauthorizedconstructionand conseciuentlyencroachedupon the public land. The second submissionof counsel for the petitioner is that the foot path has been reduced by constructinga boundarywall by respondentsno.l to 3. As for as the MCD is concerned a categorical stand has been taken that there is no unauthorized construction over the property in question. All deviations are compoundablein nature and on paymentof Rs.8,92,390/-the deviations sought were compounded,'fhe MCD has lurthcr taken a stand that the complaintmade bythe petitionerwas taken note of and consequentto the complainta show cause notice was issued on 9.7.2012and upon hearing -~4i. the partiesthe show cause notice was withdrawn.It is not clear from the submissions made by counsel for the petitioner as to whether respondents no.l to 3 have encroached upon the public land or whether respondents no.l to 3 had decided to give a part of their plot. Although reliance is placed on the minutes of the meeting dated 18.8.2011 to show that in case respondent no.3 gave up his part of the land he would be compensated by availing FAR on the area of the plot shown outside the boundary wall. The MCD has made another categorieal assertion in the reply affidavit that the boundary wall has been erected by respondents no.l to 3 within their plot. Thus, it can safely be said that there is no unauthorized construction or encroachment on the public land as stated by the petitioner. Even otherwise a bare reading of Clause 6.4.1(g) of the Building Bye-Laws, 1983, as applicable to Delhi and the area under the MCD jurisdiction shows that for construction or re-construction of W.P.(Q4453/2012 Paoe 9uf10 boundary walls as permissible under these Bye-Laws no notice or buildingpermit is necessaryunder law.

¶15The affidavitof the MCD has also clearly stated that the boundarywall has been re-erectedby respondentsno.l to 3 as per their boundaryline. Thejudgment,soughtto be reliedupon by counselfor the petitionerin the case of M/s GohindPershad Jagdish Prasad (supra),is not applicableto the facts of the presentcase as the aforesaidmatterdeals with virandain iront ofthe shop, whichhas been in existencefor more than two decades. When the said matterhad come up beforethe Apex Courtthe stand of the shop keeperswas rejectedto take over the viranda,which was being used as a passage by the owners. The facts in the presentcase are differentto the extentthat the petitionerhas prayedthat respondentsno.l to 3 should in fact be directedto surrendera part of their land so that the width of the pavement is not decreased. Without acquiringthe land the Covcrnment cannot force a citizen to part with his property nor the MCD has made any such suggestion. In my view the present writ petition is misconceivedand the same is accordingly dismissed with costs of Rs.5,00()/-, each, to be paid by petitioner to respondents no.l to 5. . 08,2013 msr MU'.(C)4453/2012 ra-e 10of JO

$-26. * IN THE HIGH COURT OF DELHI AT NEW DELHI W.P.(C) 4453/2012 NIRAJ KIIANDLLWAL