* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 5555/2003
Date of decision : 24.04.2009
IN THE MATTER OF :
#SMT. NALINEE VERMA ..... Petitioner
! Through: Mr. Sanjeev Mahajan, Adv.
versus
$MCD & ORS. ........Respondents
^ Through: Ms. Saroj Bidawat, Adv. for MCD
Mr. Aditya Madan, Adv. for R-2.
CORAM
* HON'BLE MS.JUSTICE HIMA KOHLI
1. Whether Reporters of Local papers may be allowed to see the
Judgment? No.
2. To be referred to the Reporter or not? No.
3. Whether the judgment should be reported in the Digest? No.
HIMA KOHLI, J. (ORAL)
1. The present writ petition is filed by the petitioners praying inter alia for directions to the respondent No.1/MCD and the respondent No.2, Deputy Commissioner (South), District Mehrauli, New Delhi, to keep open the public street marked in the site plan appended to the writ petition as Annexure-P-1, free from any W.P.(C) 5555/2003 Page 1 of 7 obstructions or encroachments, and further, to direct the respondents No.1 & 2 to ensure that the same is not encroached upon or blocked in any manner by any person, including the respondents No.3 to 5.
2. Briefly stated, the facts of the case are that the petitioner purchased the land in Village Dera Mandi, Tehsil-Mehrauli, Delhi on 14.2.1985 by virtue of two registered sale deeds. It is stated that earlier in the year 1996, the petitioner merged the purchased strip of land with the existing municipal road, thus widening the road from 2.5 mtrs. to 5.2 mtrs. at her costs. It is further stated that the boundary pillars were built and the road was laid and mettled at the site at the petitioner's cost, to be used as a public road, with the petitioner being the major beneficiary of the same.
3. Counsel for the petitioner draws the attention of this Court to an undated letter (Annexure-P-4) addressed by the predecessor-in- interest of the petitioner to the Gaon Sabha, Village Dera Mandi, Tehsil-Mehrauli, Delhi requesting the Gaon Sabha to declare the aforesaid road as a public road. He states that in March, 2003, the respondent No.3 raised disputes with regard to boundaries of his own plot of land and that of the petitioner and the respondents No.4 and 5, and expressed his intention to get a demarcation done of his Khasras. W.P.(C) 5555/2003 Page 2 of 7 Though, the petitioner remained available at the site after receiving a notice of demarcation, but the concerned officers did not present themselves.
4. On 7.6.2003, the petitioner got some information to the effect that demarcation had allegedly taken place at the site. The petitioner visited the office of the respondent No.2 on several occasions to obtain a copy of the said demarcation, but the concerned Patwari refused to hand over a copy of the same. It is stated that in August, 2003, the respondent No.3 demolished the western boundary wall of his farm from the side of Khasra No.23, erecting a fresh boundary wall into fields of the respondents No. 4 and 5, thus bringing the aforesaid road of 5.2 mtrs. into the physical boundaries of his plot. Aggrieved by the aforesaid action of the respondent No.3, the petitioner has filed the present writ petition.
5. Counsel for the petitioner states that the aforesaid road is a public road and in support of this submission, he relies on a Notification dated 23.5.1966 issued by the MCD under Section 507 (a) of the DMC Act declaring Mehrauli as ceasing to form part of the rural area.
6. On the other hand, the stand of the respondent No.1/MCD W.P.(C) 5555/2003 Page 3 of 7 is that the land on which the alleged road/street is shown to exist by the petitioner, was on an agricultural land and is privately owned. It is further stated on behalf of the MCD that the said land had never been handed over to the MCD for maintenance by any statutory authority and as the same is neither in control of, nor under the supervision of MCD, hence, no directions, as sought by the petitioner, can be issued to the MCD.
7. Counsel for the respondent/MCD states that to resolve the controversy as to whether the petitioner was a party to the previous demarcation exercise, vide order dated 03.02.2004, the SDM (Revenue) was directed to undertake a fresh demarcation exercise. Thereafter, a demarcation report was filed on the record under index dated 12.2.2004. The demarcation report of the SDM states that the representative of the petitioner was present along with the other parties on 5.2.2004, when the demarcation exercise was undertaken. As per the said demarcation report placed on the record, the street in question forms a part of the land owned by the respondent No.3.
8. Reliance on the Notification dated 23.05.1966, cannot advance the case of the petitioner, to claim that the strip of land in question is a public street. For a street to fall under the definition of a W.P.(C) 5555/2003 Page 4 of 7 "public street", it ought to vest in the civic authority. In this context, it is relevant to refer to the definition of the term "public street" under Section 2(44) and Chapter XV of the DMC Act, which deals with construction, maintenance and improvement of streets. Section 2 (44) defines the term "public street" as below:-
"public street" means any street which vests in the Corporation as a public street or the soil below the surface of which vests in the Corporation or which under the provisions of this Act becomes, or is declared to be, a public street;"
9. Section 298 of the DMC Act, which falls under Chapter XV, stipulates as below:-
"298. Vesting of public streets in the Corporation - (1) All street within Delhi which are or at any time become public streets, and the pavements, stones and other materials thereof shall vest in the Corporation.
(2) All public streets vesting in the Corporation shall be under the control of the Commissioner and shall be maintained, controlled and regulated by him in accordance with the bye-laws made in this behalf.
(3) Notwithstanding anything contained in sub- sections (1) and (2), the Central Government may, by notification, direct that all or any of the functions of the Corporation or the Commissioner, in respect of public streets under this Act shall be preferred by such authority as may be specified therein.W.P.(C) 5555/2003 Page 5 of 7
10. It is not the case of the petitioner that the MCD has declared the strip of land as a public street. As per the petitioner, her predecessors-in-interest had requested the Gaon Sabha to declare the road as a public road. The argument of the counsel for the petitioner that her predecessors-in-interest had offered a part of their own land to the Gaon Sabha for being treated as a public street and therefore, the respondent No.1 is under an obligation to maintain it, is mis- conceived. If this is true, then, it was for the Gaon Sabha to have declared the same as a "public street" and later on, vest the street in respondent No.1, for it to be continued to be treated as a "public street", as envisaged under Section 298 of the Act. In the absence of proof of any such vesting, the respondent/MCD is justified in claiming that, it is not under any obligation to maintain the said street as a public street .
11. In these circumstances, no directions of the nature sought by the petitioner can be issued to the respondent/MCD or to the respondent No.2. If the petitioner is aggrieved by the failure on the part of the Gaon Sabha, Village Dera Mandi, Tehsil-Mehrauli, Delhi to have declared the road/ a strip of land in question as a "public street" W.P.(C) 5555/2003 Page 6 of 7 and vest the same in the respondent no. 1, then her remedy lies elsewhere.
12. For the aforesaid reasons, the relief sought by the petitioner in the present writ petition cannot be granted against the respondents No.1 and 2 as the very basis of the arguments of the petitioner that the strip of land in question is a "public street" is not borne out from the records. The prayer made in the writ petition is declined and the same is dismissed. Needless to state that dismissal of the present petition shall not preclude the petitioner from approaching the Gaon Sabha Village Dera, for seeking her remedies in accordance with law.
13. The writ petition is disposed of.
HIMA KOHLI,J APRIL 24, 2009 sk W.P.(C) 5555/2003 Page 7 of 7