Services Committee.) v. SUB DIVISIONAL MAGISTRATE & ORS

1. The present petition has been filed seeking the following reliefs: “a) Issue an appropriate Writ directing the Respondent No. 1 to take necessary action to ensure that the right to access the terrace/rooftop is provided to the Petitioner for fixing/repairing water tanks, TV antennas etc. b) Issue an appropriate Writ directing Respondent No. 1 and 2 to take any further action as may be required to ensure that the rights of the Petitioner with respect to accessing the rooftop are not interfered with. c) Pass any other Order that this Hon’ble Court may deem fit and proper in the interest of justice.”

2. The petitioner claims that he and his wife are owners of, and have been residing in, what has been termed in the petition as the “suit property”

KUMAR KAURAV bearing no. 3261, Second Floor, Opp. Pusa Wall, Ranjeet Nagar, New Delhi (hereinafter “said Property”). Respondent no. 3, one Mr. Chiranjit Singh, is then claimed to be a resident of the third floor in the same building.

3. It is stated by the petitioner that the passage to enter the premises as well as the staircase is common and the same common staircase goes to the rooftop/terrace of the said Property. The petitioner avers that the respondent no. 3 illegally installed a superstructure iron gate at the common stair case on the third floor of the said premises with purported mala fide intention to encroach all the common area of the stair case. The said structure allegedly has not been removed by respondent no. 3.

4. Respondent no. 3 in its counter-affidavit has denied all allegations and specifically pleaded, at para. 8 that the contested structure has been installed by him for safety purposes and access to the roof, or the stair case which leads to it, has never been denied to the petitioner.

5. It appears that the petitioner has also filed a civil suit titled „Sh. Gurdeep Singh v. Sh. Charanjit Singh & Ors.‟ before the Senior Civil Judge (West), Tis Hazari Courts, Delhi bearing Civil Suit no. 308 of 2023 seeking the following reliefs:

6. It is, therefore, the case that the issues being contested in the civil suit are overwhelmingly similar to those sought to be agitated in the present petition. Even otherwise, a substantial adjudication of the case in hand would require this Court to delve into seriously disputed questions of facts, which the Court under Article 226 of the Constitution, cannot delve into.

7. In Radha Krishnan Industries v. State of Himachal Pradesh[1] the Supreme Court re-iterated the discretion available with the writ court to decline exercise of its powers when disputed questions of facts are involved. The material portion of the judgement reads as under “27.6. In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with.”

8. This Court in IDBI Bank Ltd. v. Power Finance Corporation Ltd.[2] while analysing the impermissibility of entertaining writs which have their origin in private and not public law has held as under:

9. In the facts and circumstances of the case, and the law discussed above, given that disputed question of facts are involved in the present lis, and also because a civil suit presently subsists between the contesting parties, the Court does not deem it fit to entertain the present petition.

10. The petitioner, however, shall be at liberty to take appropriate recourse in accordance with law.