Niraj Kiandllwal v. Pradeep Gar

1. J3y 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 2013:DHC:7054 V" i ✓ f by respondents no.l to 3.

2. Pleadings in this matter are eomplete. With the consent ofcounsel for the parties writ petition is set down for final hearing and disposal.

3. The necessary facts, to be noticed for disposal ofthe present writ petition, are that the petitioner is a resident of Jamuna Marg, Civil Lines, Delhi. Respondents no.l to 3 are also residing at Jamuna Marg, Civil Lines, Delhi. As per the writ petition, somewhere in the end of year 2010 respondents no.l to 3 started construction over their premises bearing no.10, Jamuna Road, Civil lines, Delhi, afresh.

4. It is the case ofthe petitioner that while constructing the premises afresh respondents no.1to 3 have started shifting the boundary wall in front of (Jamuna Road) and side lane ofJamuna Road by about 6-7 feet towards the public road, thus, encroaching and reducing the width of the footpath on the main road (Jamuna Road) 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 petitioner has been writing to various authorities since January, 2011, informing them about the illegal acts earned out by respondents no.l to 3.

5. Jhe 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 ofparties.

6. It 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 although the modified plans were not approved by the MCD. Respondents no.l to 3 have illegally extended the boundary wall. Strong reliance has been placed by counsel for the petitioner on the minutes ofthe meeting of the Building Plan Committee, held on 8.8.2011, more particularly Item 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 submitted by the applicant (respondents no.l to 3) to hand over the remaining land coming in the right of way free of cost as and when required by the Corporation, however, a concession was granted to respondents no.l to 3 that they may avail FAR on the area of the plot shown outside the boundary wall. The revised building plans were to be processed subject to other corrections and compliances.

7. Mr.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 boundary wall is on the public land and, thus, respondents no.l to 3 have encroached upon the public land, whereas respondents no.4 and 5 have been mere spectators, who have allowed respondents no.l to 3 to encroach upon the public land.

8. Respondents 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 mr.fC) 445.V20I[2] Page J of 10 building plan at the site. While addressing the issue on the question of boundary wall the following assertions have been made in the status report:

9. Pursuant tothe directions passed by this Court, the MCD has filed another affidavit of Mr.A.K. Singh, Executive Engineer (Building), Civil Lines Zone, NDMC, dated 30.1.2013. The affidavit has reiterated what has heen stated in the status report dated 30.8.2012, which has been filed. It was, however, pointed out that the regularization application of respondents no.l to 3 was processed and constructed was regularized under the 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 regularization the owner/builder made some deviations in the position of boundary wall against the sanctioned buildingplan. Thus, the property of the petitioner was booked vide file no.l 15/C-77/B/UC/CLZ/2012 dated 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 3 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 constructed the boundary wall within his premises and plot line. Hence, there is no encroachment on 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 Building Bye-Laws, 1983.

10. A detailed affidavit has been filed by respondent no.3, who is also represented through counsel. It is contended by Mr.Sapra, learned senior counsel for respondents no.l to 3, that the present petition suffers from siippresso veri and suggestfalsi as the petitioner is well aware that there is no encroachment on the public land. It is further stated that the present writ petition is malafide, vexatious and is, thus, liable to be dismissed. It is further stated by Mr.Sapra that respondent no.3 is the lawful owner of the property in question and he has carried out the construction of a residential house inconformity with the building bye-laws, the provisions ofDelhi Municipal Corporation Act and the MPD 2021. It is categorically stated in the reply affidavit that no unauthorized construction or encroachment upon the public land has been made. Respondent no.3 had reconstructed the boundary wall on the earlier boundary wall, which was in existence and moreover no part ol the plot of respondents no.l to 3 has ever been acquired nor any acquisition proceedings have been initiated by 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 l4iP.(C) 4453/2012 I'ugc 5 of 10 taken any benefit of the additional FAR and more so a completion certificate has been awarded by the MCD to respondent no.3, which leads to a conclusive finding that there is no unauthorised construction or encroachment by respondent no.3 on the public land. It is further contended by Mr.Sapra that based on the complaint made by the petitioner a show cause notice was issued to respondent no.3; a detailed reply was fded; and after hearing the parties, the show cause notice was withdrawn by an order dated 14.8.2012. Senior counsel iurther contends that even otherwise after the filing of the writ petition the MCD has again satisfied itself that there is no encroachment on the public land and ilirfner there is no unauthorized construction by respondent no.3. Respondent no.3 has, thus, prayed that the writ petition be dismissed with exemplary costs ior harassing respondents no.l to 3 and for wasting a precious time of the Court.

11. Ixarned counsel for the petitioner while relying upon adecision rendered by the Apex Court in the case ofMA Gohind Pershad Jagdish Pmsad v. New Delhi Municipal Committee, reported at (1993) 4 SCC 69 submits that in case the land has been surrendered by the owner for the benefit of 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.

12. Learned senior counsel for respondents no.l to 3 have relied upon a decision rendered in the case oi Madan Lai Gupta v. Municipal Corporation of Delhi & Ors., reported at 122 (2005) DLl 706 moie particularly paras 7 and 10, which read as under: '7. It has been further submitted that the demand of 10% area of each sub-divided plot towards community facilities is not permissible in the light of the judgment of the Ilon'ble Supreme Ht/tfo 4453/2012 Page 6 of to Court in, Pt. Chet Ram Vashisht (dead) by [..Rs., v. Municipal Corporation ofDelhi, 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 instance a person submitting a 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 amenities and facilities to 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 sanctioning a lay-out plan can also claim that it shall be sanctioned only if the owner surrenders a portion of 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."

10. The permissions being granted to the properties less than hall an acre leading to hostile discrimination against the petitioner has not been denied in the pleadings or even during submissions in Court. Kven de-hors the said unrebutted plea of discrimination, the petitioner in my view is entitled to succeed, 'fhe petitioner clearly falls within the respondent's own guidelines but for the involuntary deduction ought 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'ble Supreme Court in Pt. diet Ram's case (supra), it would not be open to the MCD to acquire such an area for community purposes 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."