Nusrat Parveen @ Parveen Khan vs Municipal Corporation Of Delhi & ...
2010 Latest Caselaw 3258 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                              Date of decision: 14th July, 2010.

+                          W.P.(C) No.4582/2010

%

NUSRAT PARVEEN @ PARVEEN KHAN                                     ..... Petitioner
                Through: Mr. Satya Pal, Advocate

                                     Versus

MUNICIPAL CORPORATION OF DELHI & ORS                           ..... Respondents
                Through:

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 petitioner has instituted this petition seeking directions to the

respondent no.1 MCD to take action for stoppage and removal of

unauthorized construction stated to have been carried out by the respondents

no. 2 to 4 in their property. The petition itself states that with respect to the

said unauthorized construction earlier also WP(C)1840/2006 was filed and

in which certain orders were made.

2. In view of the said statement in the writ petition, it has been inquired

from the counsel for the petitioner as to how the second writ for the same

relief lies. The counsel for the petitioner states that the earlier writ petition

was filed by someone else and not by the petitioner; that the orders made in

the earlier writ petition are not being complied with and the petitioner being

not a party to the same is unable to enforce the same and hence has filed this

writ petition.

3. The matter was passed over and the file of WP(C)1840/2006 has been

called for. The said writ petition was filed by the Mohalla Sudhar Samiti.

Vide order dated 8th February, 2006 in the said writ petition the MCD, DDA

and the Commissioner of Police were directed to ensure that no unauthorized

construction was carried out in the property. On 21st July, 2006 it was again

ordered that if MCD finds any unauthorized construction in the property it

should proceed thereagainst in accordance with law. The earlier writ

petition was disposed of on 7th November, 2007 recording that the

unauthorized portion complained of on the first floor of the property had

been demolished and the owners (who are respondents no. 2 to 4 herein) had

given undertaking that they shall not violate any provision of law or sanction

to raise building granted to them by the MCD. This Court accepted the

undertaking given by the owners and bound them with the same. It was also

observed that the MCD shall be bound by the statutory duty to ensure that no

unauthorized construction is raised in the property.

4. The counsel for the petitioner contends that though the respondents

no. 2 to 4 herein have acted in breach of their undertaking to this court in the

earlier writ petition and are thus liable to be proceeded against for the same

but the petitioner being not a party to the earlier writ petition, is not in a

position to initiate any action for breach of the undertaking and hence this

petition. The said contention of the counsel for the petitioner in my opinion

is not valid. The petition such as the earlier one and this one for direction to

the MCD to perform its duties and remove the unauthorized construction

complained of are not for the personal benefit of the petitioner approaching

the court alone but for the observance of the Building Bye Laws and which

observance is in the general interest of the society. Even if the petitioner

who had filed the earlier petition has lost interest, it remains open to any

other person to enforce the undertaking; the enforcement of the

order/undertaking is not vested exclusively in the petitioner in that petition

only. Even otherwise, this would be a better course to adopt rather than

multiply the petitions with respect to same unauthorized construction.

5. The counsel for the petitioner next contends that the petitioner in the

present petition is also seeking action against the officials of MCD within

whose jurisdiction the unauthorized construction has taken place. The order

in the earlier writ petition also directed that the MCD shall be bound by its

statutory duty to ensure that no unauthorized construction is raised in the

property. It is open to the petitioner to seek the said direction in the

enforcement of the orders of the earlier writ petition.

6. This writ petition is thus not found maintainable owing to the earlier

WP(C) 1840/2006 and is dismissed. It shall however be open to the

petitioner to enforce the orders and undertaking given in the earlier writ

petition.

No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) 14th July, 2010 M..