Sh. Manoj Kumar Sharma vs Mcd
2011 Latest Caselaw 913 Del

             *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                        Date of decision: 15th February, 2011

+                            W.P.(C) 964/2011

         SH. MANOJ KUMAR SHARMA                  ..... Petitioner
                     Through: Mr. K.S. Singh & Ms. Madhu
                              Sharma, Advocates.

                                      versus
         MCD                                               ..... Respondent
                             Through:     Ms. Mini Pushkarna, Advocate for
                                          MCD.
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 claiming to be owner of part of the property

No.178/7,8, Street No.2, Padam Nagar, Kishan Ganj, Delhi had applied to

the respondent MCD for permission to raise construction on his part of the

property. The said application was rejected. Aggrieved therefrom the

petitioner earlier filed W.P.(C) No.13842/2009 in this Court. It was the

stand of the counsel for the respondent MCD then that the remedy of the

petitioner was under Section 347 B of the Delhi Municipal Corporation

Act, 1957 by appealing against the order of rejection and not by way of

writ petition. In view of the said submission of the counsel for the

respondent MCD, the counsel for the petitioner had then withdrawn

W.P.(C) No.13842/2009 with liberty to challenge the order of rejection

before the Appellate Tribunal, MCD.

2. The petitioner however after withdrawing the earlier writ petition,

instead of approaching the Appellate Tribunal MCD, approached the

Public Grievances Commission which vide order dated 7th July, 2010

directed the petitioner to meet the officials of the respondent MCD and

directed the respondent MCD to grant opportunity to the petitioner to

complete the deficiencies in his application.

3. The petitioner contends that though he has made up the deficiencies

but no fresh order has been made on his application for sanction for

construction. This writ petition has been filed seeking mandamus to the

respondent MCD to grant sanction.

4. The counsel for the respondent MCD appearing on advance notice

states that the application of the petitioner has again been rejected vide

order dated 11th February, 2011, copy whereof is handed over in the Court.

The counsel for the petitioner denies that the said order has been served on

the petitioner. Be that as it may, a copy thereof has been handed over to the

counsel for the petitioner.

5. The counsel for the respondent MCD further contends that the

remedy of the petitioner against the order dated 11th February, 2011 also, is

before the Appellate Tribunal, MCD and not by way of this writ petition,

especially when the petitioner had earlier withdrawn the writ petition to

approach the Appellate Tribunal, MCD.

6. The counsel for the petitioner however contends that his application

has been rejected for the reason of the permission being not possible in a

sub-divided property/plot. He refers to the news report of 10 th August,

2010 of the Delhi Cabinet having recommended sub-division of plots. He

states that owing thereto he is entitled to the sanction.

7. Though the petitioner has not chosen to produce before this Court

any document showing change if any made in pursuance to the

recommendations of the Delhi Cabinet, but the counsel for the respondent

MCD has handed over in the Court the Notification dated 17 th January,

2011 of the DDA qua "The Building Regulations for Special Area,

Unauthorized Regularized Colonies and Village Abadis, 2010", issued in

pursuance to the recommendations aforesaid. She has drawn attention to

Regulation 3(iii) which has permitted consideration of building plans in

Village Abadis, Special Areas and Unauthorized Regularized Colonies,

sub-division wherein had taken place up to 8 th February, 2007. She further

states that Kishan Ganj where the subject property is situated is an

unauthorized regularized colony and would thus be covered by the said

Notification. It is contended that as per the said Notification also, the sub-

division which had taken place up to 8 th February, 2007 only is to be

recognized and not thereafter; the sale deed in favour of the petitioner is of

15th January, 2009. It is further contended that even if it is the case of the

petitioner that he is entitled to the benefit of the said Notification, again the

remedy is by way of appeal and not by way of this writ petition.

8. The petitioner having earlier filed a petition on the same/similar

cause of action and having withdrawn the same on the same defence, is not

found entitled to a second round of litigation. The remedy if any of the

petitioner is by way of appeal against the order dated 11 th February, 2011

and not by way of this petition. It has consistently been the law that the

Court would not exercise the power under Article 226 of the Constitution

where alternative efficacious remedy is available.

9. The petition is therefore dismissed as not maintainable with liberty

to the petitioner to avail the remedy of appeal. No order as to costs.

CM No.2028/2011 (for exemption).

Allowed, subject to just exceptions.

RAJIV SAHAI ENDLAW (JUDGE) FEBRUARY 15, 2011 pp..