Delhi High Court

Smt. Nalinee Verma vs Mcd & Ors. on 24 April, 2009

Author: Hima Kohli

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        W.P.(C) 5555/2003

                                         Date of decision : 24.04.2009
IN THE MATTER OF :

#SMT. NALINEE VERMA                          .....  Petitioner
!                             Through: Mr. Sanjeev Mahajan, Adv.
              versus

$MCD & ORS.                                        ........Respondents
^                             Through: Ms. Saroj Bidawat, Adv. for MCD
                                       Mr. Aditya Madan, Adv. for R-2.


CORAM

* HON'BLE MS.JUSTICE HIMA KOHLI

     1. Whether Reporters of Local papers may be allowed to see the
        Judgment? No.

     2. To be referred to the Reporter or not? No.

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

HIMA KOHLI, J. (ORAL)

1. The present writ petition is filed by the petitioners praying

inter alia for directions to the respondent No.1/MCD and the

respondent No.2, Deputy Commissioner (South), District Mehrauli,

New Delhi, to keep open the public street marked in the site plan

appended to the writ petition as Annexure-P-1, free from any

obstructions or encroachments, and further, to direct the respondents

No.1 & 2 to ensure that the same is not encroached upon or blocked in

any manner by any person, including the respondents No.3 to 5.

2. Briefly stated, the facts of the case are that the petitioner

purchased the land in Village Dera Mandi, Tehsil-Mehrauli, Delhi on

14.2.1985 by virtue of two registered sale deeds. It is stated that

earlier in the year 1996, the petitioner merged the purchased strip of

land with the existing municipal road, thus widening the road from 2.5

mtrs. to 5.2 mtrs. at her costs. It is further stated that the boundary

pillars were built and the road was laid and mettled at the site at the

petitioner's cost, to be used as a public road, with the petitioner being

the major beneficiary of the same.

3. Counsel for the petitioner draws the attention of this Court

to an undated letter (Annexure-P-4) addressed by the predecessor-in-

interest of the petitioner to the Gaon Sabha, Village Dera Mandi,

Tehsil-Mehrauli, Delhi requesting the Gaon Sabha to declare the

aforesaid road as a public road. He states that in March, 2003, the

respondent No.3 raised disputes with regard to boundaries of his own

plot of land and that of the petitioner and the respondents No.4 and 5,

and expressed his intention to get a demarcation done of his Khasras.

Though, the petitioner remained available at the site after receiving a

notice of demarcation, but the concerned officers did not present

themselves.

4. On 7.6.2003, the petitioner got some information to the

effect that demarcation had allegedly taken place at the site. The

petitioner visited the office of the respondent No.2 on several

occasions to obtain a copy of the said demarcation, but the concerned

Patwari refused to hand over a copy of the same. It is stated that in

August, 2003, the respondent No.3 demolished the western boundary

wall of his farm from the side of Khasra No.23, erecting a fresh

boundary wall into fields of the respondents No. 4 and 5, thus bringing

the aforesaid road of 5.2 mtrs. into the physical boundaries of his plot.

Aggrieved by the aforesaid action of the respondent No.3, the

petitioner has filed the present writ petition.

5. Counsel for the petitioner states that the aforesaid road is a

public road and in support of this submission, he relies on a

Notification dated 23.5.1966 issued by the MCD under Section 507 (a)

of the DMC Act declaring Mehrauli as ceasing to form part of the rural

area.

6. On the other hand, the stand of the respondent No.1/MCD

is that the land on which the alleged road/street is shown to exist by

the petitioner, was on an agricultural land and is privately owned. It is

further stated on behalf of the MCD that the said land had never been

handed over to the MCD for maintenance by any statutory authority

and as the same is neither in control of, nor under the supervision of

MCD, hence, no directions, as sought by the petitioner, can be issued

to the MCD.

7. Counsel for the respondent/MCD states that to resolve the

controversy as to whether the petitioner was a party to the previous

demarcation exercise, vide order dated 03.02.2004, the SDM

(Revenue) was directed to undertake a fresh demarcation exercise.

Thereafter, a demarcation report was filed on the record under index

dated 12.2.2004. The demarcation report of the SDM states that the

representative of the petitioner was present along with the other

parties on 5.2.2004, when the demarcation exercise was undertaken.

As per the said demarcation report placed on the record, the street in

question forms a part of the land owned by the respondent No.3.

8. Reliance on the Notification dated 23.05.1966, cannot

advance the case of the petitioner, to claim that the strip of land in

question is a public street. For a street to fall under the definition of a

"public street", it ought to vest in the civic authority. In this context,

it is relevant to refer to the definition of the term "public street" under

Section 2(44) and Chapter XV of the DMC Act, which deals with

construction, maintenance and improvement of streets. Section 2 (44)

defines the term "public street" as below:-

"public street" means any street which vests in the Corporation as a public street or the soil below the surface of which vests in the Corporation or which under the provisions of this Act becomes, or is declared to be, a public street;"

9. Section 298 of the DMC Act, which falls under Chapter XV,

stipulates as below:-

"298. Vesting of public streets in the Corporation - (1) All street within Delhi which are or at any time become public streets, and the pavements, stones and other materials thereof shall vest in the Corporation.

(2) All public streets vesting in the Corporation shall be under the control of the Commissioner and shall be maintained, controlled and regulated by him in accordance with the bye-laws made in this behalf.

(3) Notwithstanding anything contained in sub- sections (1) and (2), the Central Government may, by notification, direct that all or any of the functions of the Corporation or the Commissioner, in respect of public streets under this Act shall be preferred by such authority as may be specified therein.

10. It is not the case of the petitioner that the MCD has

declared the strip of land as a public street. As per the petitioner, her

predecessors-in-interest had requested the Gaon Sabha to declare the

road as a public road. The argument of the counsel for the petitioner

that her predecessors-in-interest had offered a part of their own land

to the Gaon Sabha for being treated as a public street and therefore,

the respondent No.1 is under an obligation to maintain it, is mis-

conceived. If this is true, then, it was for the Gaon Sabha to have

declared the same as a "public street" and later on, vest the street in

respondent No.1, for it to be continued to be treated as a "public

street", as envisaged under Section 298 of the Act. In the absence of

proof of any such vesting, the respondent/MCD is justified in claiming