Dr. Gurpreet Singh vs New Delhi Municipal Council & Ors
2010 Latest Caselaw 4020 Del

              *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                           Date of decision: 31st August, 2010.

+        W.P.(C) 12170/2009 & CM No.12379/2009 (of the petitioner for
         interim relief) & CM No.14039/2009 (of the respondent NDMC u/O

39 Rule 4 CPC)

DR. GURPREET SINGH ..... Petitioner Through: Mr. Rajshekhar Rao, Advocate

Versus

NEW DELHI MUNICIPAL COUNCIL & ORS ..... Respondents Through: Mr. Pinaki Mishra, Sr. Advocate with Ms. Madhu Tewatia, Mr. Ashutosh Lohia, Ms. Sidhi Arora & Mr. Nikhil Bahri, Advocates for R-1.

Mr. R.G. Srivastava, Advocate for R-

Ms. Priyanka Kathuria, Advocate for Ms. Sangeeta Chandra, Advocate for R-3.

CORAM :-

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
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             No
         in the Digest?

RAJIV SAHAI ENDLAW J.

1.       The writ petition was filed in public interest.     However, the PIL

Bench found the grievance raised in the petition to be more or less of a

personal character and ordered the petition to be tried not as a PIL.

2. The petitioner is a resident of 18-A, Aurangzeb Road, New Delhi-110

011. He is aggrieved from the works commenced by the respondent no.1

NDMC in Tees January Lane, in which the rear end of the property of the

petitioner opens. He contends that the respondent no.1 NDMC has

commenced the said works in violation of the Master Plan for Delhi-2021 &

guidelines with respect to the Lutyens Bungalow Zone of Delhi in which the

aforesaid property is situated and without any sanction and without the

approval of the respondent Delhi Urban Arts Commission (DUAC)

impleaded as respondent no.2 in this petition. The petitioner thus seeks the

relief of restraining the respondent no.1 NDMC from proceeding with the

said works and of directing demolition of the works already carried out.

3. The petitioner, in the petition has also pleaded that through the

medium of Right to Information Act, he has been informed that the works

aforesaid were part of a project of streetscaping and which was proposed to

house Car Parking, Bus Parking and Outdoor Plaza, Memorial Plaza in the

said lane; it was also informed that kiosks and vendors in front of Gandhi

Smriti on Tees January Marg (as distinct from Tees January Lane) are

proposed to be shifted to the roundabout at the end of Tees January Lane.

The petitioner also contends that the proposal of the NDMC of converting

the round about at the end of Tees January Lane into a market and to convert

the Lane into a parking area for cars and buses of visitors to Gandhi Smiriti,

will render the Lane unusable for residents of houses opening in the said

Lane, including the petitioner. It is perhaps on account of said plea that the

petition was considered as venting private grievance. The petitioner along

with the writ petition filed an application for interim relief for restraining the

said works.

4. The writ petition and the application for interim relief came up before

the Court on 13th October, 2009 when while issuing notice of the writ

petition, the respondents were directed to maintain status quo with regard to

creation of third party rights, title and interest and possession of the kiosks /

shops construction/being constructed in the Tees January Lane. The said

order continues to be in force.

5. The respondent no.1 NDMC has applied for vacation thereof. It is

inter alia the case of the respondent no.1 NDMC that the visitors to Gandhi

Smriti, a monument of international repute, on Tees January Marg, park

their vehicles in front of the Smriti and which comes in the way and thus

blemishes the beauty of the Smriti, that to cater to the said visitors, few

kiosks were also set up to serve food items in front of the Smriti and which

also leads to accumulation of waste at the road and nearby places and also

diminishes the sanctity of the monument; that the respondent no.1 NDMC

thus decided to shift the parking lot and the kiosks aforesaid to the back side

of the Smriti i.e. on Tees January Lane and the works aforesaid were

commenced in this context.

6. The respondent no.1 NDMC has also filed a counter affidavit to the

writ petition. The respondent no.2 DUAC has also filed a counter affidavit

pleading inter alia that its approval is required for the works as of the nature

commenced by the respondent no.1 NDMC and that the respondent no.1

NDMC has not applied for such approval.

7. The matter came up before the Court last on 18 th August, 2010. The

senior counsel for the respondent no.1 NDMC expressed urgency. It was

contended that the vendors in front of Gandhi Smriti on Tees January Marg

were required to be rehabilitated at the new site in Tees January Lane, the

work of construction whereon has already completed and the said shifting is

held up owing to the interim order aforesaid in this petition. It was

contended that the kiosks in front of the Gandhi Smriti were required to be

removed immediately in view of the ensuing Commonwealth Games when

participants in the Games and the tourists are expected to visit the Smriti.

8. Since the occupants of the kiosks on Tees January Marg who are

sought to be rehabilitated at the new site in Tees January Lane are tehbazari

holders, it was enquired from the senior counsel for the respondent no.1

NDMC whether the new site in Tees January Lane had been approved as a

vending site by the Zonal Vending Committee constituted under the

National Policy on Urban Street Vendors, 2009. The respondent no.1

NDMC was also directed to produce the layout plan of the area before this

Court.

9. The respondent no.1 NDMC in pursuance to the order aforesaid has

filed an additional affidavit stating inter alia that the existing kiosks in front

of Gandhi Smriti had been allotted long back; that they were required to be

removed therefrom for reasons aforesaid; however, the respondent no.1

NDMC before removing the said kiosks was required to rehabilitate the

occupants thereof in terms of Clause 4.2 of the Scheme for Urban Street

Vendors for NDMC; that under the National Policy on Urban Street

Vendors, 2004, the areas covered by the Lutyens Bungalow Zone (LBZ)

have been declared as non vending areas; however, wherever kiosks / stalls

had been constructed by the respondent no.1 NDMC including in the LBZ

area; the same were allowed to continue. It is thus pleaded that the Vending

Committee has no jurisdiction over the said area but respondent no.1 NDMC

was obliged to rehabilitate the kiosk owners and has decided to rehabilitate

them behind the Smriti in Tees January Lane.

10. The counsel for the respondent no.2 DUAC on 18th August, 2010 as

well as today, reiterates that the works carried out by the respondent no.1

NDMC in Tees January Lane without the permission of respondent no.2

DUAC is illegal.

11. The senior counsel for the respondent no.1 NDMC has today fairly

stated that the question whether the respondent no.1 NDMC was required to

obtain permission of respondent no.2 DUAC or not requires consideration.

He has suggested that the matter can be referred to the Lieutenant Governor

for consideration of all aspects or may be decided by this Court after hearing

the parties further. He has however contended that owing to the interim

order in this petition, the kiosks in front of Gandhi Smriti on Tees January

Marg are not being removed and owing whereto the entire work of

beautification of the Smriti is held up. It is urged that in the ensuing

Commonwealth Games not only the participants in the Games but also

other visitors / tourists are likely to visit Gandhi Smriti, as normally all

visitors to the city do and the country will cut a sorry figure if the

beautification drive proposed is not implemented. The senior counsel has

fairly offered that if the newly constructed kiosks / plaza in the Tees January

Lane are permitted to be occupied, the same shall be subject to further

orders in this petition and the respondent no.1 NDMC, in the event of it

being held in the writ petition that the respondent no.1 NDMC was not

entitled to construct the said kiosks, would remove all persons so allowed to

occupy the kiosks / shops.

12. The counsel for the petitioner has controverted the aforesaid

contention of the respondent no.1 NDMC. He contends that no commercial

activity can be permitted in the Lane or in the plaza constructed on the

roundabout towards the end of the Lane. He further contends that once it is

the stand of the respondent no.2 DUAC also before this Court that its

approval is required, the works in the Lane though completed are illegal and

should not be permitted to be occupied. It is also the case of the petitioners

that the works already carried out if permitted to be made functional would

destroy the serenity of the lane in which the rear end of the property of the

petitioner opens and would be a continuous source of nuisance. He further

points out from the National Policy on Urban Street Vendors, that the

respondent no.1 NDMC is required to rehabilitate the existing tehbazari

holders in its jurisdiction, only in consultation with the Residents Welfare

Association and which has not been done. The counsel for the petitioner

also draws attention to the judgments of this Court in Harsh Gupta Vs.

NDMC MANU/DE/ 0801/1995 and in Central Service Station Vs. NDMC

MANU/DE/8601/2007 to contend that the respondent no.1 NDMC could not

have so made the constructions aforesaid in the Tees January Lane.

13. The writ petition would require consideration.

14. As far as the interim relief is concerned, I am of the view that the

private rights of the petitioner must give way to the public interest. The

Supreme Court in The Supreme Court in Ramniklal N. Bhutta Vs. State of

Maharashtra AIR 1997 SC 1236 held that a time has come where the

Courts should keep the larger public interest in mind while exercising their

power of granting stay/injunction. The power under Article 226 is

discretionary. It will be exercised only in furtherance of interests of justice

and not merely on the making out of a legal point. The Courts have to weigh

the public interest vis-a-vis the private interest while exercising the power

under Article 226. It is ultimately a matter of balancing the competing

interest. In Modern Law Review, Vol. 44, 1981 Edition at Page 214, R.A.

Buckley stated that "A plaintiff may still be deprived of an injunction in

such a case on general equitable principles under which factors such as the

public interest may, in an appropriate case, be relevant". The Supreme

Court in Mahadeo Savlaram Shelkae v. Pune Municipal Corporation

(1995) 3 SCC 33 held that it is common experience that injunction normally

is asked for and granted to prevent the public authorities from proceeding

with execution of or implementing scheme of public utility; public interest is

therefore one of the material relevant considerations in either in exercising

or refusing to grant ad-interim injunction. In that case, public purpose of

removing traffic congestion was sought to be served by widening the road

and which purpose was held up owing to stays granted by the Courts. The

Supreme Court held that the Courts should necessarily consider the effect on

public purpose and should suitably mould the relief. The Supreme Court in

ONGC Ltd. Vs. Saw Pipes Ltd. AIR 2003 SC 2629 also held that where loss

is caused to the public, there is no measure for determining the loss.

15. Reference may also be made to Baitarani Gramiya Bank v. Pallab

Kumar (2004) 9 SCC 100 reiterating that when public interest competes

with private interest, the private interest will have to give way to public

interest. The Supreme Court in Mardia Chemicals Ltd. v. UOI AIR 2004

SC 2371 again held that wherever public interest to such a large extent is

involved and it may become necessary to achieve an object which serves the

public purpose, individual rights may have to give way. Public interest has

always been considered to be above private interest. Interest of an individual

may to some extent be affected but it cannot have the potential of taking

over the public interest having an impact on the socio-economic drive of the

country (see Panchkuian Road Refugee Vyapar Sangh Vs. DMRC

MANU/DE/2353/2006). The Supreme Court in Sooraram Pratap Reddy Vs.

District Collector, Ranga Reddy District (2008) 9 SCC 552 also held that

the writ court exercising powers under Article 226 cannot substitute its own

judgment for the judgment of the Government as to what constitutes public

purpose. It was held that whatever furthers the general interest of the

community as opposed to a particular interest of the individual must be

regarded as a public purpose and the emphasis is unmistakably shifting from

the individual to the community.

16. The removal of the kiosks in front of Gandhi Smriti on Tees January

Marg and shifting of the parking therefrom and beautification of the project

is deemed to be in public good. It can reasonably be accepted that during

the international event being hosted in the country, the Gandhi Smriti would

be a big draw. The image of the country would certainly be sullied if the

visitors to Gandhi Smriti go back with a poor image of maintenance thereof.

I have also perused the layout plan produced by the respondent no.1 NDMC

of the area. The changes proposed are certainly for the betterment and

beautification of the area even if they be ultimately held to be contrary to

law. The works proposed and now carried out are in consonance with the

international designs around prominent monuments, as Gandhi Smriti is.

At all such sites' main approach is always kept clean and unlittered and all

public amenities, facilities are found at a separate end. The same is

proposed to be done by the respondent no.1 NDMC.

17. Thus, as a temporary measure and subject to final orders in this

petition, it is directed:

(i) The respondent no.1 NDMC is permitted to occupy

kiosks/shops constructed in Tees January Lane. However, such

occupation is subject to the undertaking of the respondent no.1

NDMC to have the same vacated in the event of the works

being found illegal and being ordered to be demolished. The

respondent no.1 NDMC is given liberty to, if deems appropriate

take affidavits / undertakings from persons allowed to occupy

the said kiosks / shops.

(ii) In the event of the works aforesaid being found to be illegal, no

special equity will flow in favour of the respondent no.1

NDMC or the persons allowed to occupy the said kiosks /

shops.

(iv) The respondent no.1 NDMC shall not allow any other hawkers/

squatters than the number of shops / kiosks to squat/hawk in the

area.

(v) The respondent no.1 NDMC shall not enhance the number of

shops / kiosks and shall not construct any further kiosks / shops

in the area.

(vi) The respondent no.1 NDMC shall not grant licence or enter into

agreement with any of the persons in the aforesaid area for a

period of more than one year.

18. With the aforesaid directions CM No.12379/2009 & CM

No.14039/2009 are disposed of.

W.P.(C) 12170/2009

List for consideration on 8th December, 2010.

Copy of this order be given Dasti under the signature of the Court Master.

RAJIV SAHAI ENDLAW (JUDGE) 31st August, 2010 gsr