Inderpuri Residents Forum ... vs Municipal Corp. Of Delhi And Anr.
2003 Latest Caselaw 1043 Del

JUDGMENT

Manmohan Sarin, J.

1. The prayer made in the review application is for review and modification of order dated 19.12.2001, to the following extent:-

"In case the applicant/MCD fails to acquire the land only in that eventuality, MCD shall notify the place, where respondent No. 2 shall construct the toilet and thereafter respondent No. 2 shall take possession of the site in accordance with law.

2. For a proper appreciation of the prayer made in the review application, it would be pertinent to recapitulate the purpose for which writ petition was filed, proceedings in the writ petition culminating in the order dated 19.12.2001.

3. Petitioner/ Ms. Inderpuri Residents Forum filed the above writ petition, seeking to restrain the respondent/Ms. Engineering Industrial Corporation (P) Ltd. , from taking possession of the land meant for municipal Primary School in C-Block, Inderpuri, New Delhi. Further a restraint was sought on the respondent from demolishing any portion of the land meant for Municipal Primary School. Notices were issued in the writ petition and writ petition was disposed of vide order dated 19.12.2001. The apprehension of the petitioner was that respondent No. 2 was going to grab and sell a part of the land of the Primary School, causing prejudice to the residents and the school going children. Respondent No. 2 submitted before the Court that it would not disturb the functioning of the primary school in 1.3 acres. Further, respondent No. 2 is not to take possession of 1.3 acres land, wherein the School is located. Hence the apprehension of the petitioner that respondent No. 2 is going to sub-divide the area, where the primary school is built, into plots to use them for commercial purposes was found to be unfounded.

4. Respondent No. 2 submitted before the Court that it has got a decree for possession and mesne profits, passed in the year 1987, in respect of a portion of land admeasuring 0.04 acres, which forms part of primary school compound and where a kacha toilet is located. Respondent No. 2 offered to construct a toilet at his own cost at the space and location, to be designated by MCD in the area of the School. Respondent No. 2 offered to take possession of 0.04 acres of land in execution after the toilet is built at a place, designated by MCD. This offer was accepted by MCD. Accordingly, it was ordered that possession of 0.04 acres of land in execution of the decree be taken by respondent No. 2 only after first constructing a toilet at the designated place by MCD. It is in these facts that order dated 19.12.2001 was passed.

5. Mr. Vinay Sabharwal submits that MCD soon after has initiated a proposal for acquisition of this 0.04 acres of land. Mr. Sabharwal prays that even though the MCD intends to acquire the land in question, respondent No. 2 should still be kept bound with its offer of making a toilet at the place to be pointed out, in case MCD fails to acquire the land.

6. Mr. Vijay Kishan, counsel for respondent No. 2, opposes the prayer made by MCD. He submits that respondent No. 2 cannot be bound with the commitment of executing the decree and taking possession only after construction of a toilet, specially when MCD claims that it has initiated proposal for acquisition of 0.04 acres of land, belonging to respondent No. 2 and wants to abide by the consent order dated 19.12.2001 only if it fails to acquire the land, which is the subject matter of the decree. There is merit in this submission. MCD cannot be permitted to resile from the agreed terms on which the order was passed and yet insist respondent No. 2 to abide by the same. In these circumstances, parties should be left free to pursue their legal remedies. Accordingly, the order dated 19.12.2001 is modified to the extent that respondent No. 2 shall be free to execute the decree in its favor while it is for the MCD to pursue its proposal for acquisition in accordance with law.

Review application stands disposed of in the above terms.