Savita Pandey vs Municipal Corporation Of Delhi & ...
2010 Latest Caselaw 507 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      W.P.(C) 10961/2009           Date of decision: 29th January, 2010.

       SAVITA PANDEY                              ..... Petitioner
                              Through      Mr. A.J. Bhambhani and Ms. Nisha
                                           Bhambhani, Advocates.

                     versus

       M.C.D. & ANR.                               .... Respondent
                              Through      Ms. Suparna Srivastava, Standing
                                           Counsel, MCD.
                                           Mr. K.K. Joshi, Adv. for R-2.
       CORAM:
       HON'BLE MR. JUSTICE SANJIV KHANNA

                              ORDER

%

The petitioner Ms. Savita Pandey is owner of flat No.451, ground floor,

DDA flats, Lado Sarai, New Delhi. The respondent No.2, Ms. Prem Vohra is in

occupation of flat No. 452, DDA flats, first floor, Lado Sarai, New Delhi, which

is situated directly above the flat of the petitioner.

2. It appears that there is unauthorized construction in the flats of the

petitioner and the respondent No.2.

3. In May and June, 2006, the petitioner's husband had made a complaint

to the MCD regarding unauthorized constructions by the respondent No.2.

W.P.(C) 10961/2009 Page 1 Subsequent complaints were also made to the DDA. On 9th October, 2006, the

petitioner's husband approached the Monitoring Committee appointed by the

High Court.

4. On 1st May, 2008, MCD issued the impugned order sealing the flat of

the petitioner in view of the unauthorized construction. It is a case of the

respondent No.2 that unauthorized construction in her flat has been

demolished twice.

5. The respondent No.2 in the counter affidavit filed in this Court has

stated that the petitioner's husband is a real estate broker through whom, the

respondent No.2 had purchased the flat No.452 in 1995. It is also the

allegation of the respondent No.2 that the petitioner's father-in-law owns the

flat No.449 in which there is again unauthorized construction; in fact the

petitioner has amalgamated flat Nos. 449 and 451.

6. The prayer made in the present writ petition is that the flat No.451,

ground floor, DDA flats, Lado Sarai, New Delhi should be de-sealed and the

petitioner is ready and willing to give undertaking that once unauthorized

construction existing in flat No. 452 is demolished, the petitioner will within 7

days thereafter remove the unauthorized construction on the ground floor.

W.P.(C) 10961/2009 Page 2

7. Husband of the petitioner, it is admitted has filed a civil suit before the

Senior Civil Judge, Delhi for mandatory and permanent injunction against both

MCD and the respondent No.2. The said civil suit is based upon similar

allegations. It stated in the said civil suit that until unauthorized construction

existing on the first floor and above is demolished, unauthorized construction

on the ground floor cannot be demolished. In paragraph 10 of the said plaint,

the following averments are made:-

"10. That in view of the above said facts and circumstances, the defendant No.1 is liable to be directed to demolish and remove all illegal and unauthorized constructions raised by defendant No.1 in flat No.452, DDA Flats, Lado Sarai, New Delhi including the illegal and unauthorized constructions and extensions etc. raised by her right from ground floor up to third floor (as shown red in site plan attached) and in case if the defendant No.1 fails to do so, in that event the defendant No.2 is directed to book the said illegal and unauthorized constructions so raised by defendant no.1 from ground floor to third floor of the property in question, as per the building bye laws of the defendant No.2 and also demolish the said illegal and unauthorized constructions, without touching the property of the plaintiff in any manner whatsoever, any further a decree of permanent injunction may be passed in favour of the plaintiff and against defendant No.2 from sealing the property No.451, DDA Flats, Lado Sarai, New Delhi in any

W.P.(C) 10961/2009 Page 3 manner whatsoever, otherwise the plaintiff is bound suffer irreparable loss and injury to his person and property which cannot be compensated in terms of money."

8. Counsel for the petitioner during the course of hearing admits that an

interim application was filed by the petitioner's husband in the said civil suit

but the same has been dismissed and the petitioner's husband has not filed

any appeal or challenged the said order and the same has become final. It is

also accepted and admitted that evidence of the plaintiff (petitioner's

husband) has been recorded and evidence of the respondent No.2 including

her cross-examination is complete. Thus the civil suit is at the last stage.

9. Keeping in view the allegations and counter allegations made by the

petitioner and the respondent No.2 and also the fact that the petitioner's

husband has already filed a civil suit, it will not be appropriate to entertain

and decide this writ petition. As noticed above, the petitioner's husband had

filed an application for interim relief before the Civil Judge, which was

dismissed. The petitioner's husband is also present in Court at the time of

hearing of the present writ petition.

10. Counsel for the petitioner has submitted that the petitioner's husband

is ready and willing to withdraw the civil suit. He also submits that as the

W.P.(C) 10961/2009 Page 4 sealing was done by the Monitoring Committee appointed by the High Court,

any decision in the civil suit is meaningless and futile. Counsel has drawn my

attention to the order dated 5th June, 2008, passed by the Appellate Tribunal,

MCD. Evidence of the plaintiff (petitioner's husband) has been recorded and

evidence of the respondent No.2 has been recorded in the civil suit.

Withdrawal of civil suit under Section 23 Rule 1 read with Section 12 of the

Code of Civil Procedure, 1908 will have legal consequences, specially, when

evidence of the parties has been partly recorded. Certain rights have accrued

to the parties on the basis of evidence on record. In any case such request is

to be made before the Judge trying the civil suit.

11. The Monitoring Committee appointed by the High Court stands

disbandend pursuant to the subsequent orders of the High Court. It is pointed

out by the counsel for the respondent No.2 that vacation notice dated 11 th

April, 2008 was issued to the petitioner and thereafter the civil suit was filed.

If required and necessary the petitioner can approach this Court after the civil

suit is decided.

12. In these circumstances, I am not inclined to entertain the present writ

petition as a civil suit with the same subject matter is already being before the

W.P.(C) 10961/2009 Page 5 Civil Judge. It is clarified that this Court has not expressed any opinion on

unauthorized construction made by the respondent No.2 and it is always open

to the respondent No.1, MCD to take action against the unauthorized

construction as per law. No costs.

SANJIV KHANNA, J.

      JANUARY 29, 2010
      NA




W.P.(C) 10961/2009                                                     Page 6