Smt. Vinod Khurana & Ors vs New Delhi Muncipal Council & ...
2010 Latest Caselaw 3218 Del

             *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                               Date of decision: 12th July, 2010.

+                           W.P.(C) No.4546/2010

%

SMT. VINOD KHURANA & ORS                     ..... Petitioners
                Through: Mr. Tarun Sharma and Ms. Monica
                         Sharma, Advocates.

                                      Versus

NEW DELHI MUNCIPAL COUNCIL & ANOTHER ..... Respondents
                Through: Mr. Asutosh Lohia, Advocate for
                          NDMC.

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 nine petitioners are the owners of shops in Shankar Market,

Connaught Place, New Delhi. The work of re-laying of floor by tiling of the

verandahs in the said market is underway by the respondent no.1 NDMC.

The petitioners have filed this petition to restrain the NDMC from

interfering in the peaceful enjoyment of the petitioners of their respective

shops. The petitioners are aggrieved from the notice dated 29th September,

2009 of the NDMC directing the petitioners to remove the unauthorized

construction and encroachment in the verandah in front of their shops.

2. The counsel for the petitioners with reference to the photographs filed

with the paper book has explained that the NDMC is asking the petitioners

to recede the rolling shutters installed by each of the petitioners on the

openings of their respective shops. From the said photographs it is made out

that the petitioners, by installing the rolling shutters at a distance of about

eighteen inches from the openings of their shops, have extended the size of

their shops and included a portion of verandah in front of their shops, in their

shops. The counsel for the petitioners also does not dispute the said fact. He

however contends that at the time of execution of the Conveyance Deed of

their respective shops in favour of the petitioners, not only the shops but also

the proportionate area of the Verandah in front of the shop was sold to the

petitioners. It is thus contended that the petitioners are not only the owners

of the shop, the area whereof is described in the Conveyance Deeds in their

favour but also of the Verandah or the proportionate area in the common

verandah running in front of their shops. The petitioners thus contend that

the portion of the verandah in front of the shops which has been so enclosed

by the petitioners, is their property only and the NDMC cannot ask the

petitioners to remove the rolling shutters fromwhere the same are installed

and to recede the same or do so forcibly.

3. It is also contended that the NDMC itself, as far back as in the year

1962 had permitted the shopkeepers to put up their show cases not

exceeding 18" in length and 6" in width in the door of their shops. It is

urged that the petitioners have only included the area where they were

permitted to keep their show cases within their shops.

4. Neither of the aforesaid contentions finds favour with this court.

Merely because at the time of conveyance of the shops, the proportionate

area of the verandah was also sold / conveyed would not convert the said

verandah from being a common verandah, meant to be a passage for the

market, to a private property of the petitioners. If the said argument of the

petitioners were to be accepted then why should the right of the petitioners

to enclose the verandah be restricted only to the portion presently included

by them in their shops; then the petitioners would be entitled to include the

entire verandah in front of their shops within their shops and which will

result in the shops of the petitioners then opening on the street in front and

change the entire nature and character of the market. The conveyance deed

to which reference is made themselves make a distinction between the area

of the shop and the area of the common verandah. In fact the language of

the conveyance deed is "proportionate area of common verandah and

common space". Thus the nature of the verandah under the conveyance

deed also was as a common property and the petitioners cannot be permitted

to appropriate the same or any part of the same for their exclusive use.

5. The verandah in the market was meant for the facility of the public

visiting the market. The dimension of the verandah in front of all the shops

is more or less uniform. The individual shopkeepers cannot be permitted to

change the size of the verandah in front of their individual shop. If the same

is done, it would not only spoil the aesthetics of the market but also create

slum like conditions and cause inconvenience to the patrons visiting the

market. The petitioners for the greed of property seem to forget that if the

patrons / shoppers quit visiting the market, the bigger size of their shops will

still not bring them bigger earnings.

6. The permission granted by NDMC in the year 1962 relied upon was a

mere permission which could have been withdrawn at any time. Moreover,

the same was only to put up a show case and was not to include the portion

of the verandah in front of the shop in the shop itself.

7. There is another aspect of the matter. The work of beautification of

Connaught Place and its surrounding areas/ markets is being undertaken at a

great speed to decorate the city for the ensuing Commonwealth Games. The

work of re-laying of the floor of the verandah has also been undertaken in

the said context only. The petitioners by refusing to remove the obstruction

in the verandah are coming in the way of completion of the said works. If

the petitioners delay the removal of their shutters encroaching extending into

the verandah, the work of flooring of the verandah will be held up and be an

eyesore.

8. Similar verandahs in other markets of the city of Delhi have been the

subject matter of

i. Sh. Mohan Singh Vs. U.O.I. MANU/DE/8590/2007 (DB)

ii. Kashmiri Lal Vs NDMC MANU/DE/0976/2004 and a similar view as hereinabove was taken.

9. The petitioners have thus not made out any case for entertaining this

petition. The petition is dismissed in limine. No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) 12th July, 2010 M