S.K. Chopra vs Municipal Corporation Of Delhi
1996 Latest Caselaw 590 Del

JUDGMENT

Jaspal Singh, J.

(1) ADMIT.

(2) Here is a case where a person keeping his own acts of wrong neatly wrapped under a rug throws the proverbial stone at another and in the process invites an order not only against the person complained against but against himself too.

(3) The facts make an interesting reading. Chatturbhuj who owns the ground floor of building bearing No. EA-114, Inderpuri, New Delhi filed a writ petition against S.K.Chopra owner of the 1st and 2nd floor of the same building and the Municipal Corporation of Delhi alleging that since illegal and unauthorised construction had been made by S.K.Chopra on the floors owned by him in violation of the sanctioned plan and the building bye laws, direction for its demolition be made. It, however, transpired during the pendency of the writ petition that what to talk of S.K.Chopra, Chatturbhuj too was guilty of having raised construction in his own portion in violation of the sanctioned plan and the building bye laws.

(4) The learned single Judge, while noticing that in the case of S.K.Chopra "there was excess coverage" which could neither be compounded nor regularised, came down heavily upon, the conduct of Chatturbhuj by observing: "c ground floor only 60% coverage was permissible in accordance with the sanctioned plan but on inspection the coverage on the ground floor was found to the extent of 100% . Admittedly, the petitioner is owner of the ground floor. The petitioner has also commercialised some portion of the building by covering the same into shops, when sanction was for residential purpose. The petitioner has suppressed these material facts from this court. It follows that the petitioner has not come to the court with clean hands. No person can be permitted to take advantage of his own wrong and the court will not come to the aid of such person"

(5) The learned single judge could have, perhaps, rest content with it and dismissed the writ petition. However, he did not. He felt that as all the three floors had been constructed in violation of the sanctioned plan and the building bye laws and as the petitioner was seeking "mere performance of statutory obligation" of the Municipal Corporation, therefore, there was need to "enforce the rule of law and to ensure that several authorities and organs of the Stale act in accordance with law". He thus directed the Municipal Corporation to perform its statutory duty "by taking appropriate action in accordance with law to demolish the unauthorised construction in the building in question."

(6) S.K.CHOPRA is unhappy with the direction issued by the learned single Judge and reminds us of a person who first sows wild oats and then prays for crop failure. As for Chatturbhuj, his counsel stated that there was no objection to any action being taken in the light of the direction with regard to the ground floor of the building. In short thus he lent a full-throated support to the order of the learned single Judge.

(7) MR.ROHTAGI who appeared for S.K.Chopra, leaning heavily on State of Haryana v. Kamal Distillery and Welcome Hotel v. State of A.P. , assailed the order of the learned single Judge on the ground that Chatturbhuj having not approached the court with clean hands the writ petition ought to have been dismissed. Ofcourse, it was also pleaded that no notice of demolition stood served upon S.K.Chopra.

(8) The judgments referred to by Mr.Rohtagi are clearly distinguishable on facts. However, we do feel that the petition must be made in good faith and not for an indirect purpose or on behalf of a third party and that courts may refuse relief to a party not coming up with clean hands. But then, it also needs to be remembered that "injunction" and "mandamus" are not interchangeable and that whereas mandamus is strictly a legal remedy, the remedy of injunction is solely equitable. The chief function of this writ is to compel the performance of public duties prescribed by statute and to keep subordinate and inferior bodies and tribunals within their jurisdiction ( (See Lekhraj Stramdas Lalvani v. Deputy Custodian-cum-Managing Officer ; Dr.Rai Shivendra Bahadur v. The Governing Body of the Nalanda College ; Dr. Umakant Saran v. State of Bihar ).

(9) What Chatturbhuj sought was to enforce a plain, positive, specific and ministerial duty imposed by law upon officers who had allegedly refused or neglected to perform such duty. It was thus clearly a case of injury of a substantial nature or substantial failure of justice, and this, as would be noticed from the contentions raised by the appellant, stands not disputed.

(10) Undoubtedly, the party who seeks to invoke extraordinary jurisdiction must come with all bona fides, must make true, full and candid disclosure of all the relevant facts. But then the petitioner was not seeking any relief with regard to his own ground floor. What he was seeking was mandamus with regard to the first and second floors. How, when and why the ground floor was constructed was not needed to be disclosed. What was required to be shown was that there was a statute, that the statute imposed a legal duty and that it had not been performed with regard to the 1st and 2nd floor. That his own construction on the ground floor too was in violation of the sanctioned plan or the building bye laws was not in issue though it did come to light during proceedings. "Something is rotten in the State of Denmark", sensed Marcellus in Scene V of Act 1 in Shakespeare's Hamlet. The learned single Judge, with respect, sensed the same rottenness depicting a sad state of affairs and it is this which prompted him, if we may say so with respect, to pass the impugned order which is not only in furtherance of public interest but had become necessary and could not be avoided, the same being necessary and essential for the administration of justice. The order is in exercise of the discretionary powers of the court. Exercise of such jurisdiction has not been ousted either by consensus or legislation. It can, in no way, be called arbitrary or beyond the known frontiers. A breach has been committed of a primary obligation. Justice lies originally in the maintenance and secondarily in the restoration of order. The maintenance of the order is effected by obedience of the law backed up by prevention through court system. Any toleration of dereliction of legal duly will make our law system puerile, thin and affected. The impugned order by compelling performance of public duty prescribed by statute not only erases the chalkboard mess the parties had made of our laws but rather also enthuses our law system with needed dynamism.

(11) As regards the contention with regard to non- service of notice of demolition, the learned counsel for the Municipal Corporation asserted that the requisite notices stood served. However, to overcome this controversy we direct S.K.Chopra and Chatturbhuj to be present in court on 23rd July, 1996 at 2.30 p.m. so as to enable the Corporation to serve fresh notices upon them.

(12) The appeal is dismissed. However, no order is made as to costs.