* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 2543/2011
Decided on: 10.04.2012
IN THE MATTER OF
JAGAN NATH SHARMA ..... Petitioner
Through: Mr. Rajat Aneja and Ms.Shweta Singh
Advocates
Versus
MCD & ORS. .... Respondents
Through:Ms.Manpreet Kaur, Advocate
for Respondent No.1
Mr.N.Prabhakar, Advocate for Respondents
No.3,6,10,11,13,15,16,19, 24 & 25
Mr.R.K.Sharma, Advocate for Respondents
No.4,5,7,8,9,12,14,21 & 22
Mr.Surjeet Singh, Advocate for Respondent No.17
Mr.Manjit Kapil, Advocate for Respondents No.18
& 23
Mr.L.K.Garg, Advocate for respondent No.26.
CORAM
HON'BLE MS.JUSTICE HIMA KOHLI
HIMA KOHLI, J. (ORAL)
1. This petition is filed by one Sh.Jagan Nath Sharma, son of Sh. Jai Narain Sharma, a resident of House No.9, Village Basant Nagar, New Delhi praying inter alia for issuance of a writ of mandamus to the respondents No.1 & 2 to take appropriate action in respect of the unauthorized construction and encroachment made in their respective properties by respondents No. 3 to 25, all residents of village Basant. W.P.(C) 2543/2011 Page 1 of 7
2. On 21.4.2011, when the matter came up for admission, in view of the submission made by the counsel for the petitioner that he did not wish to press reliefs (b) & (c) made in the prayer clause and instead sought to confine the relief in the present petition to prayer (a) alone, notice was issued in the present petition limited to prayer (a) and respondent No.1/MCD was directed to file a counter affidavit setting out the action taken by the Department, in respect of the unauthorized construction, if any, existing in the premises in question occupied by respondents No.3 to 25.
3. On 15.11.2011, learned counsel for respondent No.1/MCD had submitted that the present petition was not maintainable for the reason that the issue raised by the petitioner herein had been agitated by his brother, Sh.Shyam Sunder Sharma in an earlier writ petition filed by him, registered as WP(C) No.5632/2010, entitled "Shyam Sunder Sharma Vs. MCD & Ors." which was disposed of vide order dated 24.11.2010. However, some time was sought by the learned counsel for respondent No.1/MCD to file a counter affidavit along with a copy of the order passed in the aforesaid writ petition.
W.P.(C) 2543/2011 Page 2 of 7
4. As per the order dated 24.11.2010 passed in the aforesaid writ petition that had been filed by Sh.Shyam Sunder Sharma, brother of the petitioner, properties of 12 other persons in the colony besides the property of the petitioner therein, were sealed and the remaining properties had been surveyed along with the Delhi Police on 16th November, 2010 and no ongoing construction was found in the remaining properties. It was clarified that there was ongoing construction in the property of the petitioner therein as well as in the 12 other properties that had been sealed. It was further stated that the action for unauthorized construction, if any in other properties, could not be taken at that time in view of the promulgation of the National Capital Territory of Delhi Laws(Special Provisions) Second Act, 2009 and that action would be taken in accordance with law immediately after the said protection is removed. A copy of the aforesaid order is handed over by learned counsel for respondent No.1/MCD and taken on record.
5. A perusal of the aforesaid order reveals that counsel for the petitioner in the aforesaid writ petition is the same as in the present case. It is not denied by the learned counsel for the petitioner that the petitioner in WP(C) No.5632/2010 happens to be the brother of the petitioner herein and he is residing in the same locality. It is also not denied that the petitioner is well aware of the order dated 24.11.2010 W.P.(C) 2543/2011 Page 3 of 7 passed in WP(C) No.5632/2010, but the said fact has not been stated anywhere in the present writ petition or for that matter, brought to the notice of this Court even thereafter.
6. In its counter affidavit, respondent No.1/MCD has stated that in terms of the order dated 24.11.2010 passed in the aforesaid writ petition, a survey of Basant Village was carried out and wherever it was found necessary, action against illegal constructions was taken from time to time. Enclosed with the affidavit is a tabulated statement in respect of 21 properties situated in village Basant indicating therein the status of the properties and the action, if any, taken in respect thereof. The last column of remarks shows that in most of the cases, there is a note that the constructions in the properties are protected under the Delhi Laws (Special Provision) Act, according to which, there is a moratorium granted upto 31.12.2011, in respect of properties situated in villages. Learned counsel for respondent No.1/MCD states that the date mentioned in the aforesaid remarks column is erroneous inasmuch as the moratorium has been extended upto 31.12.2013. As regards the property of the petitioner herein, it is stated that he has himself undertaken unauthorized construction in his property right from the ground floor to the third floor and orders of demolition have been passed by the MCD. Aggrieved by the said orders of demolition, the petitioner had filed an appeal before the W.P.(C) 2543/2011 Page 4 of 7 Appellate Tribunal, MCD which is stated to be pending disposal and wherein, the impugned demolition order has been stayed. It is thus stated by learned counsel for the respondent No.1/MCD that the present petition is a gross abuse of the process of the court inasmuch as the petitioner has deliberately withheld from the Court, information as regards the earlier round of litigation initiated by his brother against the same respondents in the earlier writ petition that was disposed of vide order dated 24.11.2010.
7. It is submitted by learned counsel appearing for respondents No.3,6,10,11,13,15,16,19, 24 & 25 that the petitioner is deliberately targetting the aforementioned respondents with an intention to harass them knowing very well that the moratorium extended under the Special Provision Act is operative till December 2013. He states that the petitioner has deliberately selected the respondents herein alone whereas, in fact and even as per the petitioner, the entire construction carried out in village Basant by the owners/occupiers is unauthorized. He further states that the petitioner has intentionally suppressed the fact that aggrieved by the non-compliance of the order dated 24.11.2010, Sh.Shyam Sunder Sharma, petitioner in WP(C) No.5632/2010 had also filed a contempt petition against the respondents, registered as Cont.Cas(C) No.411/2011, in which notice was issued and the same is W.P.(C) 2543/2011 Page 5 of 7 pending consideration before another Bench.
8. In view of the aforesaid background and having regard to the fact that the petitioner has not approached this Court with clean hands and has concealed relevant information, including the litigation that had been initiated by his own brother against the respondents herein in the year 2010 and further, having regard to the fact that the counsel for the petitioner herein is the same counsel who had conducted the earlier case and was therefore aware of the orders passed in WP(C) No. 5632/2010, this Court is of the opinion that the present case is liable to be dismissed as it amounts to a gross abuse of the process of the Court. The petitioner has deliberately suppressed material facts from the Court and has sought to re-agitate the very same issue that had already been considered and dealt with in the earlier proceedings initiated by his brother. The Court also expresses its displeasure at the manner in which the present petition has been drafted and filed by withholding material information and it takes exception to the fact that although the counsel in both the petitions is the same, even he has not made any effort to bring the factum of the earlier writ petition and the orders passed therein to the notice of this Court. Furthermore, when the petitioner has undertaken unauthorized construction in his premises, it does not lie in his mouth to level allegations against the respondents No.3 to 25.
W.P.(C) 2543/2011 Page 6 of 7
9. In view of the aforesaid facts and circumstances, this Court declines to exercise the extraordinary powers vested in it under Article 226 of the Constitution of India in favour of the petitioner. The writ petition is therefore dismissed with costs of `30,000/- imposed on the petitioner. The costs shall be deposited with the Delhi High Court Advocate's Library Fund within four weeks, with proof of deposit placed on record, failing which, the registry shall place the matter before the Court for appropriate orders.
(HIMA KOHLI)
APRIL 10, 2012 JUDGE
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W.P.(C) 2543/2011 Page 7 of 7