Kamal Kapoor v. The State & Ors.

1. By way of present petition filed under Article 226 of the Constitution of India, the petitioner, who claims to be a social activist 2022:DHC:2046 residing at House No. 6/4 First Floor, Ramesh Nagar, H.O., West Delhi- 110015, seeks the following reliefs:- "a) Direct the respondent No.1 to 6 to demolish/clear the entire 3rd Floor and excess area in the shape of chhajas and full coverage of illegal and unauthorised construction raised on the Property Bearing No. 61/1, 2 & 3rd Floor, WHS, Furniture Block, Kirti Nagar, New Delhi - 110015 as the said illegal construction is directly effecting the ingress and egress of the petitioner and the public to secure the ends of justice; b) Direct the respondent No.1 to 6 to file the status report after removal of encroachment on public street and public land and 3rd floor of illegal and unauthorised construction and extended chajjas raised on the Property Bearing NO. 61/1, 2 & 3rd Floor, WHS, Furniture Block, Kirti Nagar, New Delhi - 110015. c) Direction may kindly be passed to the Respondent No.1 to 6 to take action against the concern officials of the respondent who are directly allowing the respondent no. 7 and 8 to raise the extended area in shape of chajja and illegal and unauthorised construction raised on the Property Bearing No. 61/1, 2 & 3rd Floor, WHS, Furniture Block, Kirti Nagar, New Delhi - 110015."

2. In the petition, it has been averred that the petitioner is in the business of property dealing and real estate and came to know that respondent No.7/Anand Padia and respondent No.8/Avdesh Mishra, who are owners and builder of the subject property respectively, have carried out unauthorised construction at the same. It is further averred that respondent No. 8 being a builder has raised unauthorised construction at other places as well.

3. Considering the vague averments made in the petition, the petitioner was directed on earlier occasion to clarify as to how many such petitions have been filed by him. In response to the same, an affidavit has been placed on record by the learned counsel for the petitioner giving the following details:-

┌──────────────────────────────────────────────────────────────────────────────┐
│      Sl. No.    Case No.          Title               Status                 │
├──────────────────────────────────────────────────────────────────────────────┤
│      1.         W.P.(C)           Kamal        Kapoor Dismissed         as   │
│                 11850/2021        v. The State of withdrawn          vide    │
│                                   NCT of Delhi & order              dated    │
│                                   Ors.                25.10.2021             │
│      2.         W.P.         (C) Kamal         Kapoor Dismissed         as   │
│                 14457/2021        v.     The    State withdrawn      vide    │
│                                   (NCT of Delhi) order              dated    │
│                                   & Ors.              16.12.2021             │
│ 4.     Mr. Ajjay Arora, learned counsel for the respondent/Corporation,      │
└──────────────────────────────────────────────────────────────────────────────┘

5. In addition and without prejudice to the foregoing, Mr. Anand Prakash, learned Standing Counsel for North DMC, assures that necessary action would be taken in case any unauthorised construction takes place, or has taken place, at the subject property, contrary to sanctioned building plan/bye-laws.

6. I have heard learned counsels for the parties as well as perused the material placed on record.

7. There is no gainsaying that a petition under Article 226 of the Constitution of India lies only for enforcement of a fundamental or legal right.

8. Notably, a Co-ordinate Bench of this Court in Rajendra Motwani & Anr. v. MCD & Ors. reported as 2017 SCC OnLine Del 11050 has held as follows:-

9. Recently, in Pawan Kumar Saraswat v. North Delhi Municipal Corporation and Others reported as 2021 SCC OnLine Del 4530, another Co-ordinate Bench of this Court took note of a petition filed under Article 226 of the Constitution of India, invoking extraordinary jurisdiction of this Court for relief such as the one sought in the present petition. The learned Judge observed as follows:-

10. In the present case, the petitioner has raised grievance regarding unauthorised construction stated to be going on at the subject property. It is the admitted case of the petitioner that he neither has any connection with the subject property nor is an immediate neighbor of resident thereof.

11. Further, it is not the case of the petitioner that his easement rights or ingress/egress are being affected/obstructed by the alleged construction activity. From a perusal of the petition, it is apparent that only vague and general averments have been made by the petitioner.

12. A perusal of the above chart placed on record would further show that the petitions mentioned therein came to be dismissed as withdrawn. In this backdrop, it appears that the present petition has been filed not to secure any fundamental/legal right, but for some motivated reasons.

13. Accordingly, the present petition is dismissed with a cost of Rs.2,000/- to be deposited by the petitioner with the Delhi State Legal Services Authority within a period of one week from today. Miscellaneous application is disposed of as infructuous.