Ram Babu And Anr. vs Municipal Corporation Of Delhi ...
1995 Latest Caselaw 413 Del

JUDGMENT

Usha Mehra, J.

(1) SH.RAM Babu has sought permanent and mandatory injunction against the Municipal Corporation of Delhi (in Short M.C.D.) and Delhi Development Authority (in short DDA). Along with the said suit the plaintiff vide the present application has sought ad- interim injunction.

(2) PLAINTIFF'S main grievance is that he has been carrying on his distribution of Kerosene Oil business in the shop bearing No.11667 Gali No.2, Sant Nagar, Karol Bagh, since January,1988. Plaintiffs have been paying damages charges and have been assessed to property tax since 1954. The defendant Mcd through its Engineer defendant No.2 has now threatened to demolish this property which is in existence for the last more than 30 years. No notice of demolition has been served. Even the water and electricity connections have been installed in these premises. The threat of demolition is on account of alleged road widening of road Ganga Mandir Marg, Sant Nagar, Prashad Nagar, Karol Bagh, New Delhi, by the MCD. This road starts from Pusa Road and goes up to Khalsa College. The Mcd has discriminated against the plaintiff while taking up the work of road widening. Mcd has not touched nor demolished other similarly situated properties in the same locality which fall within the alignment of road widening as those properties are also situated in the same direction. Plaintiff's property only has been isolated for demolition which action of the Mcd is not only illegal, arbitrary but without jurisdiction.

(3) This application has been contested by the M.C.D., inter alia, on the grounds that plaintiffs are encroachers on public land. That the Dda might have charged damages but cannot charge for the encroachment of municipal land nor has charged for the shop unauthorisedly constructed outside premises No.11667, Gali No.2, Sant Nagar. In fact the Ministry of Surface Transport approved the scheme for widening of Ganga Mandir Marg Road from D.B.Gupta Road to Pusa Road in Karol Bagh. M.C.D. accepted the decision of the Govt. of India vide Resolution dated 11.1.90 and sanctioned the scheme. Execution of widening of road work started in 1991. The widening of road has been completed up to Tank Road. Widening of Road work has been held up due to these encroachments namely that of the plaintiffs, school, booster pumps, Milk Booths and Desu Sub-station.

(4) I have heard Mr.S.K.Dubey for the plaintiff and Mr.D.K.Sharma for the M.C.D. It is an admitted case of the parties that M.C.D. has already widened the road up to Tank Road and the rest of the road could not be widened due to encroachments either by some private parties like plaintiffs or by one or the other Department of the M.C.D. Objection of the plaintiffs to the action of demolition by the M.C.D. had been that they have been discriminated as against others. This objection, to my mind, has no force. No one can have a right on public land nor plaintiffs, prima facie, can claim any right, title or interest in a public land simply because they were not evicted or removed from the public land for a long period. Nor an unauthorised user of public land is entitled to any notice as held by the Supreme Court in the case of Patnaji V. Union of India reported in 1993 Scale page 562. Similar view has been taken by this Court in C.W. No.5545/93 decided on 3.11.93 in the case of Rajinder Kakkar V. Dda and C.W.No.2974/92 decided on 10.5.93. In fact houses of the plaintiffs bearing No.11667, Gali No.2 and 11726, Gali No.3, Sant Nagar, Karol Bagh, New Delhi are not raising any obstruction in the road widening nor fall in the alignment of the road widening. The perusal of the Map filed by the M.C.D. clearly show that plaintiffs have raised temporary structures on the Municipal Road which are not only unauthorised but fall in the alignment of road widening. Hence prima facie, plaintiffs have not been able to prove that they have any right to encroach the public land. They have failed to place on record any document to prove that M.C.D. charged any damages for the use and occupation of this unauthorised structure or this structure formed part of the tax assessed by the M.C.D. It is only their house falling outside the alignment of the road which were assessed. If plaintiffs paid to D.D.A. any damages for unauthorisedly using Municipal land that will not make these unauthorised structures on public land as legal or lawful. Therefore, prima facie, to my mind, the plaintiffs have no right to object to the removal of encroachment on public land by M.C.D. and that too for public purposes i.e. for widening of the road which has been held up due to these encroachments.

(5) Counsel for the plaintiff however contended that so far M.C.D. has not taken any action to remove or shift the school, Tube well, Desu Sub Station, then why should plaintiffs shops be demolished. The M.C.D. has rather permitted unauthorised installation of Fruit and Vegetable kiosks on the road already widened up to Tank Road. So far as encroachment on already widened road is concerned that is not the question in controversy. It was for the officials of the M.C.D. to take action against them and prove to the public that it means business. In the present application, however, this Court is concerned whether plaintiffs have made out any prima facie case for the grant of injunction. From the facts discussed above, I find they have miserably failed. They as per their own admission encroached the public land. Their houses are assessed but these temporary structures are not part of that property. These are built outside the house on the Municipal land. By paying charges or damages for this unauthorised use of Municipal land to Dda, their occupation never stood regularised. Nor by paying damages they acquired any right to be there on this public land. Their occupation remained unauthorised. Hence prima facie they have not made out any case whereby the M.C.D. be restrained. Mcd under the Road Widening Scheme has to remove all unauthorised structures. This court cannot slap the injunction on the face of the Mcd because of some receipts having been issued by the Dda of charging damages from the plaintiffs which according to the counsel for Mcd, the Dda had no authority to do. It is MCD's land which the plaintiffs have unauthorisedly occupied. Dda had no authority to charge damages. Nor the payment of damages to Dda vested any right in favor of the plaintiffs. Hence they have, prima facie, no case to get the widening of the road stopped. Consequent removal of these unauthorised structures falling within the alignments of the road have to be removed.

(6) While considering the question of irreparable loss, the plaintiffs knew that they had raised unauthorised shops/structures on public road, therefore, they now cannot turn around and say that they will suffer loss if these shops are allowed to be removed. On the contrary if the Mcd is injuncted from removing these obstructions by way of unauthorised structures coming in the way of road widening then loss of Mcd would be much more. A civic authority like Mcd cannot be injuncted from performing its lawful and rightful functions. Already more than two years have elapsed when further road widening work, as per scheme, beyond Tank Road has been held up on account of these obstructions. Karol Bagh is a very conjusted area. To cater to the needs of traffic, roads have to be widened otherwise because of narrow roads there always has been traffic jams. To remove these bottlenecks, the Mcd decided to widen the road. In case injunction is granted the Mcd would suffer because it has already incurred expenditure during the year 1992-93 to the tune of Rs.5,80,339.00 on account of improvement/ providing of drainage, foot path and M.S.Grills and in 1993-94 an expenditure of Rs.3,85,483.00 was incurred. All this money already spent would go waste if the scheme is not allowed to be implemented as a whole. The plaintiffs on this count also have no right to seek the interim relief.

(7) Turning to the question of balance of convenience, to my mind, it is also in favor of the MCD.

(8) The road widening is one of the duties of the civic body i.e. M.C.D. As already observed above heavy expenditure has already been incurred by the M.C.D. for implementation of the Scheme, now if the injunction as sought by the plaintiff is granted, it would not only mean wastage of the amount already incurred but the beneficiaries, i.e. the public would be put to lot of inconvenience because of congestion of traffic on account of narrow roads. The benefit which has to accrue to the public at large on account of road widening, cannot be deprived. The civic body, to my mind, cannot be injuncted from performing its statutory duties, which, at the risk of repetition, I must say is to maintain the roads properly and to widen them keeping in view the ever increasing traffic. Hence, taking these factors in consideration, I find the balance of convenience is not in favor of the plaintiff.

(9) Before parting I must express my lurking doubt in the bonafide action of the Mcd in the implementation of this Scheme, as per the plan/map, filed by the Mcd and the stand taken in the written statement. It is apparent that within the alignment of this road, there are number of other structures coming in the way like, Desu Sub-Station, School, tube well etc. These structures are in possession of one or the other departments of the MCD. From the documents, produced on record, it is apparent that except writing one or two letters to these authorities, no sincere efforts have been made by the Mcd to get these stuctures removed for the purpose of widening of this road. On enquiry, being made from the counsel for the Mcd, as to what action has been taken, the counsel and the Engineer, who was present in the court informed that reminder was issued to these departments on 19th April, 1995 to remove these structures. Reminder was also issued to the Divisional Office of the Telephone Exchange to take appropriate action for removing the structure, which is coming in the alignment of the widening of the road. Had the Mcd been sincere in its efforts to implement the scheme, it would not have wasted almost three years in simply writing a letter in December, 1994 and reminder in April, 1995. Therefore, plaintiffs' grievance that they have been discriminated make sense. Even though, I have held that they have no right to be on this road and their structure coming within the alignment can be demolished but keeping in view the conduct of the Mcd, I must observe that the demolition of the structures raised by these plaintiffs should be prevented along with the tube well/pump room/ telephone exchange/ garbage-bin/ Desu Sub-station/ School are removed from the site in question.

(10) With these observations, the application stands disposed of.