Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 6971/2022
Date of Decision: 04.05.2022
IN THE MATTER OF:
SH. SATISH KUMAR TOMAR ..... Petitioner
Through: Mr. Amit Kumar, Advocate
versus
NORTH DELHI MUNICIPAL CORPORATION & ORS.
..... Respondents
Through: Ms. Puja Kalra, Standing Counsel
with Mr. Virendra Singh, Advocate
for respondent No. 1/North DMC.
Mohd. Irsad and Mr. Kumud Ranjan
Mishra, Advocates for respondents
No. 2 and 5.
Mr. Ashim Vachher, Standing
Counsel with Mr. Kunal Lakra,
Advocate for respondent No. 4/DDA
alongwith Ashish Dixit- Junior Law
Officer, DDA.
CORAM:
HON'BLE MR. JUSTICE MANOJ KUMAR OHRI
(VIA VIDEO CONFERENCING)
JUDGMENT
MANOJ KUMAR OHRI, J. (ORAL)
CM.APPL No. 21314/2022 (Exemption)
1. Allowed, subject to all just exceptions.
2. Application is disposed of.
Signature Not Verified
Digitally Signed
By:SANGEETA ANAND
Signing Date:09.05.2022
16:00:30
W.P.(C) 6971/2022 Page 1 of 4
W.P.(C) 6971/2022 & CM.APPL No. 21313/2022 (Stay)
1. The present petition has been filed under Article 226 of the
Constitution of India on behalf of the petitioner seeking direction to
respondent No. 1 to stop the illegal and unauthorized construction stated to
be carried out by respondents No. 6 and 7 on property bearing No. WZ-71,
Main Road, Village Todapur, New Delhi – 110012 (hereinafter referred to as
the ‘subject property’).
2. The petitioner has claimed himself to be a resident of RZ-143, Gali
No. 10, East Sagarpur, New Delhi - 110046. It is admitted by the learned
counsel for the petitioner that the petitioner neither has any connection with
the property of respondents No. 6 and 7 nor is an immediate neighbour of
respondents No. 6 and 7. It is also admitted that neither the petitioner’s
easement rights nor ingress/egress are affected by any alleged activity
carried out by respondents No. 6 and 7.
3. Issue notice.
4. At the outset, Mr. Ashim Vachher, learned Standing Counsel
appearing for respondent No. 4/DDA submits that the answering respondent
has no role to play in the present petition and may be deleted from the array
of parties. It is ordered accordingly.
5. Ms. Puja Kalra, learned counsel appearing for respondent No. 1/North
DMC accepts notice and has taken a preliminary objection to the
maintainability of the writ petition, alleging that the same is a motivated
one.
6. I have heard learned counsels for the parties as well as perused the
material placed on record.
Signature Not Verified
Digitally Signed
By:SANGEETA ANAND
Signing Date:09.05.2022
16:00:30
W.P.(C) 6971/2022 Page 2 of 4
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:-
“ 10. …that an illegal construction in itself does not give any
legal right to a neighbor. An illegal construction always no
doubt gives locus standi to the local municipal authorities to
seek removal of the illegal construction, but, a right of a
neighbor only arises if the legal rights of light and air or any
other legal right is affected by virtue of the illegal construction
of the neighbour…”
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:-
“15. Though unauthorized illegal construction, which is
becoming rampant, cannot be countenanced however, I am of
the view that a party that does not approach the Court with
clean hands and files a petition with ulterior motives should not
be permitted to invoke the extra ordinary Writ jurisdiction of
this court. I am of the view that the petition deserves to be
dismissed.”
10. In the present case, the petitioner admittedly does not have any
connection with the property in question. The petitioner has further failed to
show as to which fundamental or legal right of his is being affected by any
Signature Not Verified
Digitally Signed
By:SANGEETA ANAND
Signing Date:09.05.2022
16:00:30
W.P.(C) 6971/2022 Page 3 of 4
alleged construction activity carried out in the subject property. It is quite
apparent that the present petition has not been filed for enforcement of any
fundamental or legal right, but rather for some motivated reasons.
11. In this backdrop, this Court is not inclined to exercise its power under
Article 226 of the Constitution of India to grant the relief sought by the
petitioner.
12. Accordingly, the present petition is dismissed, with a cost of
Rs.5,000/- to be deposited by the petitioner with the Delhi State Legal
Services Authority within a period of four weeks from today.
13. Proof evidencing receipt of deposit shall be filed with the Registry of
this Court, failing which the Registry shall list the matter before this Court.
14. A copy of this order be communicated electronically to Member
Secretary, Delhi State Legal Services Authority, Patiala House Courts, New
Delhi for information.
15. Be that as it may, respondent No. 1/North DMC shall take necessary
action in case any unauthorized construction activity takes place, or has
taken place, in the subject property, except in accordance with a sanctioned
building plan, if any. In the event of any grievance arising hereafter, the
petitioner shall be at liberty to approach the Special Task Force constituted
by DDA pursuant to directions of the Supreme Court.
16. With above directions, captioned application stands disposed of.
(MANOJ KUMAR OHRI)
JUDGE
MAY 4, 2022/v
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Signature Not Verified
Digitally Signed
By:SANGEETA ANAND
Signing Date:09.05.2022
16:00:30
W.P.(C) 6971/2022 Page 4 of 4