Smt. Shashi Kanta Sharma & Ors. vs Mcd & Anr.
2010 Latest Caselaw 3431 Del

             *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                 Date of decision: 22nd July, 2010.

+                  W.P.(C) No.9657/2009 & CM No.9503/2010 (u/O1 R-10)

%

SMT. SHASHI KANTA SHARMA & ORS.                ..... Petitioners
                 Through: Mr. Pardeep Gupta, Mr. Suresh Bharti
                          & Ms. Laxmibai Leitanthem,
                          Advocates.

                                        Versus

MCD & ANR.                                                    ..... Respondents
                             Through:     Ms. Saroj Bidawat, Advocate.
                                          Mr.     M.N.   Dudeja       for   the
                                          intervenor/Ram     Nagar      Welfare
                                          Association.
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 petitioners, being the residents of properties abutting the main

road of Ram Nagar instituted this petition restraining respondent MCD from

constructing a urinal in front of their houses. This Court vide order dated

19th June, 2009 while issuing notice of the petition restrained the respondent

MCD from sanctioning or constructing the urinal in front of properties

No.134-137, Ram Nagar, Delhi. The said order has continued in force till

now. Vide further order dated 20th October, 2009, the respondent MCD was

directed to place the decision taken to reconstruct the urinal before this

Court and to also ensure that unless the urinal is completed it is not used.

2. CM No.9503/2010 has been made by the Ram Nagar Welfare

Association for impleadment as a party to the writ petition. It is contended in

the said application that the urinal in front of properties aforesaid has been in

existence for the last over 40 years; that finding the said urinal to have been

demolished, a complaint was filed in June, 2009 with the MCD for

reconstruction thereof in as much as the residents and shopkeepers were

facing a lot of inconvenience. Though no formal order has been made till

now on the said application for impleadment, the counsel for the petitioner,

the respondent MCD as well as the applicant have been finally heard on the

writ petition.

3. The MCD in its counter affidavit, though has stated that the urinal is

more than 40 years old and it had merely reconstructed the same and that the

urinal has already been completed prior to the filing of the present petition

but the photographs filed along with the said counter affidavit as well as

handed over during the course of hearing and which are not in dispute show

that in the name of the urinal only two un-plastered brick walls of not more

than average human height exist; no sanitary or flushing equipment is seen

installed therein. The photographs though show the said spot being used as a

urinal but do not depict that the construction of the urinal has been

completed.

4. The facts otherwise are not in dispute. The street in question is about

25 ft. wide. While the counsel for the petitioners contends that the street has

residences on one side and the residences-cum-shops on the other sides, the

counsel for the applicant contends that there are residences-cum-shops on

both side of the street. The semi finished urinal aforesaid is touching the

front boundary wall of property of one of the petitoiners with the two un-

plastered brick walls supra having been erected perpendicular thereto. The

said enclosure falls between the entry gates of two of the houses. The

photographs also depict that while one of the houses is under construction

the other appears to be semi-built.

5. The counsel for the petitioners has contended that the attempt to

construct the urinal touching the front wall of the properties of the

petitioners is violative of the Fundamental Right of decent living of the

petitioners. Reliance is placed on Dr. B.L. Wadehra

Vs. Union of India and others (1996) 2 SCC 594. It is further contended

that inspite of express directions by this Court to the MCD to place before

this Court the decision for having the urinal at the said spot, the same has not

been placed till now. It is contended that the properties on both sides have

amenities of sanitation and there is no need for a urinal in the locality. It is

contended that even MCD cannot raise construction of a urinal without

sanction of plans and no sanctioned plans have been shown.

6. Per contra, the counsel for the MCD has stated that for construction of

such urinals, no plans are required to be sanctioned. On enquiry whether the

MCD is in possession of any records to show that urinal on the said spot has

been in existence, if not for 40 years as alleged, at least since prior to the

filing of the petition, the counsel for the respondent MCD has fairly stated

that no such records are available with the MCD.

7. The counsel for the applicant has contended that the road in question

falls in mixed land use area; that there are tehbazari sites also on the said

road; that there are other similar urinals also on the same road and that the

petitioners have straightaway approached this Court without making any

representation whatsoever to the respondent MCD and for which reason

alone the petition is not maintainable. He has also handed over a list of

November, 2007 of Toilet Complexes, Dhalaos and Urinal Blocks in

Shahdara South Zone and in which at Serial No.147 in the Ward of

Jagatpuri, a urinal is stated to be existing at the location of Ram Nagar, L.N.

Mandir.

8. Section 359 of the DMC Act, 1957 deals with public latrines, urinals

etc. and empowers the Commissioner to provide and maintain in "proper and

convenient places" a sufficient number of public latrines and urinals. Sub-

section (2) further provides that such public latrines and urinals shall be so

constructed so as not to be a public nuisance and are to be provided with all

necessary conservancy establishments and are to be regularly cleansed and

kept in proper order.

9. There can be no manner of doubt whatsoever that the construction of

urinal at the entry point of a property is certainly detrimental and a source of

nuisance and prejudicial not only to the property (bringing down the value of

the property) but also to the occupants of the property. Having gauged the

situation of the urinal from the photographs handed over and the experience

of maintenance of such urinals/toilets by the Municipality, there is no

manner of doubt whatsoever that the foul smell emanating therefrom will

make it impossible for the occupants of the property to keep their doors and

windows open. The question which arises for consideration is as to how the

said private interest of the said property owners is to be balanced with the

public interest. The contention of the counsel for the petitioners of all the

properties having sanitation amenities and thus no urinal being required

loses sight of the requirement of the visitors to the shops in the said

properties. None has suggested that properties have provided for urinal/toilet

amenities for the public also.

10. This Court in Muni Lal Vs. MCD AIR 1998 Delhi 79 & Nizamuddin

East Colony Association (Regd.) Vs. UOI MANU/DE/0629/2000 has held

that the courts should not interfere in the decision of the MCD qua the

placement of such urinals/toilets. I have also recently in W.P.(C)

No.4562/2010 titled Manish Gupta Vs. MCD decided on 13th July, 2010

followed the same view. However notwithstanding the said legal position,

the facts of the present case stand out. The urinal is just outside and touching

the front boundary wall of properties which even if used partly for

commercial purposes, are definitely residential. The respondent MCD

inspite of directions of this Court has failed to produce any decision of the

Commissioner or delegatee of the Commissioner of the said place being

proper and convenient for a urinal. The only inference is that there is none.

The MCD appears to have been swayed by certain elements in filing the

counter affidavit before this Court. As aforesaid a definite stand has been

taken in the counter affidavit that the urinal has been in existences for more

than 40 years. On enquiry as to on what basis it has been so stated, the

counsel could only explain that it was on the basis of a complaint received in

the year 2009 from some of the residents. The said complaint is of none

other but of the Applicant Association aforesaid. Ordinarily the petitioners

should also have been the members of the Association and the issue should

have been internally resolved. However the same has not happened. It

appears that some of the residents/occupants of properties on the road are in

favour of the urinal and others opposed thereto.

11. This Court would still refrain from adjudicating whether the urinal

should be there at the said spot or not. However from the failure of MCD to

place the decision if any of the Commissioner inspite of directions, it is clear

that the decision as to whether the said place is proper and convenient or not

and whether it will be a nuisance or not and whether the necessary

conservancy and cleaning establishments can be provided therein or not as

required to be taken under Section 359 (2) of the DMC Act has not be taken.

It is sad that in the name of urinal the semi constructed enclosure aforesaid

without even any provision for flushing has existed at least for the last over

one year since when the writ petition has been pending. I entertain no

manner of doubt whatsoever that the very continuance of the same is an

eyesore and a sanitation and hygiene issue.

12. The writ petition is thus disposed of with the following directions:-

(i). The respondent MCD to within two weeks hereof remove the

semi constructed walls jutting out from the front boundary wall

of the property and enclosure stated to be serving as a urinal.

(ii). The Commissioner, MCD to, after inviting representations from

and hearing all the concerned parties i.e. the residents and

occupants of the surrounding properties and after assessing the

requirement if any for a urinal on the said spot and also as to

whether the urinal if required, can be at any other suitable and

proper place, take a decision as required under Section 359 of

the DMC Act within six months herefrom. The Commissioner,

MCD to record reasons for opting for a particular location. It is

however clarified that it will be open to the Commissioner to,

after the said procedure, choose the same spot subject matter of

this writ petition. However the parties shall have their remedies

if any against the said decision of the Commissioner, MCD.

The petition is disposed of. The parties to bear their own costs.

RAJIV SAHAI ENDLAW (JUDGE) 22nd July, 2010 pp