Yograj & Anr. vs D.D.A. & Ors.
2008 Latest Caselaw 2247 Del

*                      HIGH COURT OF DELHI : NEW DELHI

                       Judgment reserved on : 12.12.2008
+                      Judgment delivered on: 15.12.2008

%                      W.P. (C) 8710/2008 & C.M.16735/08


       YOGRAJ & ANR.                      ..... Petitioner
                           Through:   Mr. Dinesh Agnani, Advocate.

                           versus

       D.D.A. & ORS.                    ..... Respondent
                           Through:   Mr. Gaurav Sarin, Advocate for
                                      DDA.
                                      Mohd. Mannan, Advocate for
                                      respondent no. 2.
                                      Mr. Sanjeev Sabharwal, Standing
                                      Counsel for MCD/respondent no.3.


CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI

1.     Whether the Reporters of local papers may
       be allowed to see the judgment?                      No

2.     To be referred to Reporter or not?                   No

3.     Whether the judgment should be reported              No
       in the Digest?

VIPIN SANGHI, J.

1. This petition has been filed by the petitioners to seek the

quashing of the auction notice dated 15.11.2008 issued by the DDA in

respect of Site no.14, Near C-9, Jangpura Extension, New Delhi

admeasuring 90 sq.mt.

2. The petitioners state that they are the owners of property

bearing No.C-9, Jangpura Extension, New Delhi, acquired by them by

virtue of a sale deed dated 22.1.1981. The petitioners thereafter got

the building plans sanctioned from the MCD and raised construction on

the plot. It is stated that adjoining the petitioners property there is an

open strip of land. The petitioners applied to the authorities for

allotment of the additional strip of land which is now proposed to be

auctioned as Site No. 14. However the said application was not

responded to by the L&D.O to whom the application was made.

Eventually the land in question, namely, the additional strip of land

which now bears Site No.14 and admeasures 90 sq.mt was

transferred to the DDA. The DDA declined the request made by the

petitioners on 22.8.1996.

3. The petitioners are now aggrieved by the proposed auction of

the aforesaid site by the respondent on the ground that the petitioners

building, which is stated to have been constructed according to the

sanctioned plan, has an entry from the side which abuts the site in

question. The said side entry leads to the staircase to approach the

first and the second floor of the property. The petitioners have placed

on record the photographs which show the existing state of affairs at

the site. From the photographs, it appears that the petitioners have

erected a hedge and a boundary wall to enclose the site in question

and have also installed a gate on the boundary of the said site. A part

of the area has been paved with a cement floor to be used as a drive

way. The petitioners have also planted grass and a tree on the said

site. From the photographs it is clear that the petitioners are more or

less exclusively putting to use the site in question.

4. The petitioners have filed on record the building plan as

sanctioned by the MCD. The said building plan shows the existence of

a side entry which leads to the staircase to approach the upper floors.

5. When the matter came up before the Court on 8.12.2008, the

Court appointed a Local Commissioner to verify the state of affairs at

the site. It had then been claimed by the petitioners that the building

has been constructed as per the sanctioned plan and that there is no

encroachment made, and there is no violation in terms of the set

backs not being provided. The Local Commissioner has inspected the

premises and filed his report in Court and the same has been taken on

record.

6. From the report of the Local Commissioner, it appears that the

plan as sanctioned by the MCD shows a side entry leading to the

staircase to approach the upper floors. The side entry is right on the

boundary of the petitioner's property and there is no set back provided

within the plot area of the petitioners. This means that as one exits

out of the side entry, one steps on to the site in question. There are

two windows also provided in the petitioners sanction plan which open

into the site in question.

7. The submission of learned counsel for the petitioners is that the

petitioners do not stake any claim in respect of the site in question and

have no grievance with the proposed action of the respondent in going

ahead with the auction of the same. However, the petitioners submit

that since the petitioners have built their building according to the

sanctioned plan which provides for a side entry, the petitioners are

entitled to a right of way to access the side entry. It is stated that on

the first floor of the petitioners' property, there is a tenant who is in

occupation under a registered lease deed. A copy of this lease deed

has been filed along with the report of the Local Commissioner which

was provided by the petitioners at the time of inspection.

8. Learned counsel for the petitioners relies on Bye-law 11.1 of the

Building Byelaws, 1983 which states that no building shall be erected

so as to deprive any other building of the means of access. He

submits that if the site in question is auctioned and boundary

wall/construction raised on the periphery abutting the petitioners

property, the side entry which is a means of access would stand

closed.

9. On the other hand, the submission of learned counsel for the

DDA is that merely because the MCD has sanctioned the building plans

by providing for side entry/windows into DDA's land, the petitioners

are not entitled to stake any right or claim in respect of the site in

question. They cannot demand a right of way from the site in

question. Such a right can be claimed only as a necessity, and not

when another approach is available to the petitioners from the front

entry of their property. By referring to the report of the Local

Commissioner he points out that the petitioners have access to the

staircase from the front side of the property.

10. Having considered the rival submissions, I am not inclined to

grant any relief to the petitioners in the present petition. Admittedly

the site in question belongs to the DDA and the petitioners have no

right, title or interest therein. The petitioners plot faces the road in

the front. It is not even the petitioners' case that the site in question

was liable to be developed as a passage/road. In these circumstances,

there was no reason for the petitioners to have even approached the

MCD with building plans which had openings/doors/windows on the

side of the site in question. It is clear that the entry gate installed on

the side, which is accessible through the site in question was provided

with the object of encroaching upon, or at least passing over public

land. The petitioners ought to have been aware, when they applied for

sanction of their building plans that the site in question could, at a

later point of time, be utilized, cordoned off or built upon by the DDA

or its allottee, and that the petitioners may not be in a position to

enjoy the right to access the side entry from, or open the window into,

the site in question. Merely because the MCD may have sanctioned

the building plans permitting the opening of the side entry/windows

which open into the site in question, it does not take away the rights

of the DDA to deal with the site in question by auctioning the same as

a residential plot. Pertinently the DDA had no role to play in the grant

of the said sanction. If the petitioners are aggrieved by the grant of

the said sanction, it is open to them to take appropriate action against

the MCD. But the rights of the DDA cannot be adversely affected only

on account of the sanction being granted by the MCD.

11. It is also clear from the report of the Local Commissioner that

the staircase to approach the first and second floors can be accessed

from the front entry. The Local commissioner has observed that the

staircase can be accessed through the front bed room and drawing

room of the property, meaning thereby that the staircase is either

accessible through the side entry/door or from the front side by

passing through the bed room door on the ground floor of the

property. The respondent DDA, in my view, is not obliged to grant any

right of way to the petitioners as claimed to them from over the site in

question. I see no merit in this petition. Dismissed.

(VIPIN SANGHI) JUDGE

DECEMBER 15, 2008 as