P.N. Kohli vs Union Of India & Ors.
2011 Latest Caselaw 296 Del

           *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                       Date of decision: 19th January, 2011

+                                  W.P.(C) 4515/2008

P.N. KOHLI                                                       .....Petitioner
                                Through:      Mr. R.K. Saini, Advocate

                                     Versus

UNION OF INDIA & ORS.                                          ....Respondents
                    Through:                  Mr. Nawal Kishore Jha,
                                              Advocate for respondent No.2.
                                              Ms. Alka Sharma, Advocate for
                                              respondent No.3.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?                               Yes

2.       To be referred to the reporter or not?                Yes

3.       Whether the judgment should be reported               Yes
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petitioner, claiming to be the owner of Flat No.46, Vasant

Cooperative Group Housing Society, Mayur Vihar Phase-I, Delhi and

having carried out certain additions and alterations in his flat which have

been booked as unauthorized by the MCD and with respect whereto an

order of demolition has been passed, has filed this writ petition averring

that similar additions and alterations are permissible in DDA Flats and

that Government should take a decision on as to why the same are not

being permitted in Cooperative Group Housing Society (CGHS) Flats. It

is pleaded that the Government had appointed a Committee known as

Dogra Committee in this regard which has recommended extension of the

permission for additions/alterations as in DDA Flats, to CGHS Flats also

but the Government has not taken any decision in this regard. The

counsel for the petitioner confines the relief in this writ petition only to a

direction to the Government to take a decision on the said report of the

Dogra Committee.

2. On 21st October, 2010, it was enquired from the counsel for the

petitioner as to what is the right of the petitioner to claim the relief of

directing the Government to take such a decision. Attention of the

counsel was invited to the judgment of this Court qua the notification of

the Delhi Rent Act, 1995 and in which it has been held that no such

direction can be issued to the Government. The counsel for the petitioner

had then sought adjournment to address on this aspect.

3. The counsel for the petitioner has today contended that the

judgments qua the Delhi Rent Act, 1995 (of this Court titled Common

Cause Vs. Union of India AIR 2001 Delhi 93 and of the Apex Court

reported in AIR 2003 SC 4493) would have no application since what

was sought therein, was bringing into force a legislation and with respect

whereto it was held that no mandamus can be issued by the Courts. He

has contended that the petitioner herein is not seeking the relief of

directing the Government to accept the recommendation of the Dogra

Committee or a direction against the Government to allow in CGHS flats

additions, alterations as are permissible in DDA flats; that he is only

seeking a direction to the Government to take a decision.

4. It is contended that issuance of such a direction is within the

domain of the Courts. Reliance in this regard is placed on:

(i) Aeltemesh Rein, Advocate, Supreme Court of India Vs.

Union of India AIR 1988 SC 1768 where direction was

given to the Central Government to, within a reasonable

time consider the question whether Section 30 of the

Advocates Act, 1961 was to be brought into force or not.

(ii) Supreme Court Legal Aid Committee Vs. Union Of India

(1998) 5 SCC 762 where a direction was issued to the States

/ Union Territories which had till then not constituted Legal

Services Committees required to be framed under Section

29A of the Legal Services Authorities Act, 1987, to

constitute the various Committees under the Act within a

period of two months.

(iii) Order dated 21st November, 2009 of the Government of

Kerala recording that the Supreme Court had directed the

Government to take a decision on the Report of the Kerala

State Commission for Backward Classes.

(iv) Press Note reporting that the Supreme Court had directed the

Government of India to come out with a final decision on

the minority status of the Jain Community.

5. The counsel for the petitioner has contended that issuance of such a

direction is in the fitness of things inasmuch as the exercise conducted by

the Government of appointing the Dogra Committee and spending money

thereon cannot be allowed to be wasted. It is contended that more than

four years have passed since the Dogra Committee has submitted its

recommendations and the Government ought to have taken a decision and

if is not so taking the decision, the Court is entitled to direct it to so take

the decision.

6. The counsel for the respondent No.3 (being a neighbour of the

petitioner and on whose complaint action was taken against works carried

out by the petitioner) has relied on:

(i) M.C. Mehta Vs. Union of India AIR 2006 SC 1325

observing that there is no discretion in the MCD to order or

not to order demolition of unauthorized construction.

(ii) Municipal Corporation of Delhi Vs. Rishi Raj Jain AIR

2006 SC 3268 observing that the Courts although can

interpret a statute, cannot issue a guideline which would be

contrary to the provisions of the statute.

(iii) Kavita Vs. MCD 2000 III AD (Delhi) 1 reiterating that

mandamus cannot be issued against the provisions of the

statute.

(iv) Rawat Mal Jain Vs. DDA AIR 1995 Delhi 105 laying down

that the Court while exercising the discretion will not extend

a helping hand to the person invoking its equity jurisdiction

for grant of an ad-interim injunction when he approaches for

preserving what he has gained by violating the law.

(v) Priyanka Estates International Pvt. Ltd. Vs. State of Assam

AIR 2010 SC 1030 holding that illegal and unauthorized

construction beyond the sanctioned plans are required to be

dealt with by firm hand and such violations are not likely to

fall in the category of compoundable items and the

necessary consequence thereof is demolition thereof.

7. It is also contended that the petitioner has encroached upon the

land / space outside his flat also and the unauthorized construction made

by the petitioner is not permissible in DDA flats also.

8. The first question which arises for consideration is whether a

direction as sought can be given to the respondents to take a decision on

the recommendations of the Dogra Committee.

9. The judgment in Aeltemesh Rein, Advocate, Supreme Court of

India (supra) on which strong reliance is placed by the counsel for the

petitioner was considered by the Full Bench of this Court in AIR 2001

Delhi 93 (supra). It was observed that inspite of the direction, Section 30

of the Advocates Act, 1961 subject matter of that judgment was still not

brought into force. Similarly with respect to the judgment in Supreme

Court Legal Aid Committee (supra), it was said that the same has to be

read in the context of the contents of the affidavit filed in that case and

which showed the willingness of the Central Government. Else this

Court reiterated the principles in A.K. Roy Vs. Union of India AIR 1982

SC 710 that it is not for the Courts to censure the Executive nor is it for

the Courts to take over the function of the Parliament, otherwise, there

will be chaos with each organ of the State overstepping its jurisdiction

and interfering with the functions of another organ of the State.

10. I am also of the view that the directions in Aeltemesh Rein and in

Supreme Court Legal Aid Committee were in Public Interest Litigations.

The present is not a petition of such a nature. The petitioner is not

serving any public interest. The petition has been filed in his personal

private interest to perpetuate the admitted unauthorized construction

carried out by him. The powers and jurisdiction of this Court in a Public

Interest Litigation are vastly different and the same powers cannot be

exercised in a private lis.

11. If the contention of the petitioner were to be accepted, then it

would open doors for the Courts to issue directions to the Legislature and

the Executive to take decisions on all walks of life and qua claims of

citizens not presently recognized by any statute / law; it would open the

doors to the litigants to then contend that the legislature should be

directed to take a decision whether to make a particular law or not which

would benefit the said litigant.

12. In this regard, I may also note that taking a decision in such matter

would require a complete decision on the framing of law and would result

in chaos and would be in the teeth of the judgment of the Constitution

Bench in A.K. Roy (supra).

13. I find that a Division Bench of the High Court of Himachal

Pradesh had directed the Chief Secretary to the Government of Himachal

Pradesh to file an affidavit setting out what action had been taken by the

State Government towards implementation of the recommendations

contained in the Report of the Anti-Ragging Committee. In appeal

preferred by the State, the Supreme Court in the judgment reported in

State of Himachal Pradesh Vs. A Parent of a Student of Medical

College, Simla (1985) 3 SCC 169 held that the order of the High Court so

directing was wholly unsustainable, even though made in a Public

Interest Litigation. It was held that the direction of the High Court

ostensibly did no more than call upon the Chief Secretary to inform the

Court as to what action the State Government proposed to take on the

recommendations, in fact and substance, intended to require the State

Government to initiate legislation on the subject. It was held that the

direction was nothing short of an indirect attempt to compel the

Government to initiate legislation and which the Court was not entitled to

do. It was further held that it is entirely a matter for the executive branch

of the Government to decide whether or not to introduce a particular

legislation and is not a matter which is within the sphere of the functions

and duties allocated to the judiciary under the Constitution. The Supreme

Court held that the Court cannot group the function assigned to the

Executive and the Legislature under the Constitution and it cannot even

indirectly require the Executive to introduce a particular legislation or the

Legislature to pass it or assume to itself a supervisory role over the law

making activities of the Executive and the Legislature.

14. In State of Himachal Pradesh Vs. Umed Ram Sharma (1986) 2

SCC 68, the High Court had directed the State Government to allot a

particular sum for expenditure on account of particular project. The

Supreme Court posed the questions, how far the Court could give

directions which are administrative in nature and whether any direction

could be given to build roads where there are no roads and whether the

Court could direct that the administration should report from time to time

so that action taken can be supervised by the Court. The Supreme Court

found that the Executive was not oblivious of its obligation though in its

sense of priority there may have been certain lethargy and inaction. It

was observed that there had been at the highest a slow application of

energy in the action by the Executive. In these circumstances, it was held

that by the process of judicial review, if the High Court activates or

energizes executive action, it should do so cautiously. I find that in the

present case also, it cannot be said that the respondents are not conscious

of the question whether the same Rules as applicable to DDA flats should

apply to CGHS flats also; a Committee was constituted for the said

purpose. Maybe, there has been some lethargy in taking a decision on the

report of the Dogra Committee, however, the same is not such to invite

interference by this Court. It was held that the Court must know its

limitations in these fields; the Court should remember that the Judge is

not to innovate at pleasure and is to exercise discretion informed by

tradition.

15. A seven-Judge Bench of the Supreme Court in P. Ramachandra

Rao Vs. State of Karnataka (2002) 4 SCC 578 held that instances of

judicial excessivism that fly in the face of the doctrine of separation of

powers which envisages that the legislature should make law, the

Executive should execute it and the judiciary should settle disputes in

accordance with the existing law; the Court went to the extent of holding

various dictas of two- Judge and three-Judge Benches of the Supreme

Court in Public Interest Litigations to be not legitimate exercise of

judicial power. It was observed that giving directions of a legislative

nature is not a legitimate judicial function.

16. Reference may also be made to Common Cause (A Regd. Society)

v. Union of India (2008) 5 SCC 511 holding that Courts cannot create

rights where none exist nor they can go on making orders which are

incapable of enforcement or direct legislation or proclaim that they are

playing the role of a law maker merely for an exhibition of judicial

valour.

17. There is another aspect of the matter. The necessary corollary of

holding that such a direction can be given to the Legislature / Executive

would be to, till then, protect the petitioner. It would result in

perpetuating and continuing an action which under the law as existing

today is admittedly illegal. This also brings to the fore the essential

distinction between a Public Interest Litigation and a private lis. In a

Public Interest Litigation while giving such a direction no illegality is

being perpetuated but in a private lis it would be so. I may notice that it

is the contention of the respondent No.3 that owing to pendency of the

present petition, the demolition order against unauthorized works carried

out by the petitioner is not being enforced. Public Interest Litigations are

by and large meant for enforcement of Fundamental Rights. On the

contrary, the petitioner here cannot be said to be having a Fundamental

Right for regularization of the unauthorized constructions carried out by

him. The Supreme Court in Sheela Barse Vs. Union of India (1988) 4

SCC 226 held that in a Public Interest Litigation unlike traditional dispute

resolution mechanism, there is no determination or adjudication of

individual rights; the proceedings cut across and transcend the traditional

forms and inhibitions; relief to be granted looks to the future and is

generally corrective as against determination of legal consequences of

past events. Division Benches of this Court in Bhagwat Dayal Sharma

Vs. UOI ILR (1974) 1 Del 847 and Peoples Union for Democratic

Rights Vs. Ministry of Home Affairs ILR (1987) 2 Del 235 have held

that where the power to do or not to do a thing is optional and

discretionary and there is no statutory obligation, direction to the

Executive to do a particular thing cannot be given even where matter is of

public importance. In the present case also no obligation on the part of

the respondents to take a decision on the Dogra Committee is shown. It

is purely a policy matter. The Supreme Court in Kanhaiya Lal Sethia

Vs. UOI (1997) 6 SCC 573 held that it is not open to a petitioner to seek

a direction to the Union of India to introduce an official Bill in the

Parliament or to sponsor a Private Member's Bill to be introduced on the

subject. If the argument of the counsel for the petitioner in the present

case were to be accepted it could have been argued there also that merely

by introduction of a Bill, its enactment was not being sought. It was held

that Courts do not interfere in policy matters of the State unless the policy

violates the mandate of the Constitution or any statutory provision or is

otherwise actuated by mala fides.

18. I am therefore of the opinion that the petitioner is not entitled to the

relief claimed of directing the respondents to take a decision on the Dogra

Committee report.

19. The counsel for the petitioner has then invited attention to the

prayer clause also claiming the relief of directing the MCD to consider

the application of the petitioner for regularization. In view of the admitted

position that the principles and rules on the basis whereof regularization

is claimed are not applicable to CGHS flats, no purpose would be served

therefrom. Even otherwise, I am of the opinion that the claims, if any, for

regularization ought to have been made by the petitioner in the

proceedings in which the order of demolition was made. The said order

has now attained finality. The petitioner cannot now have a second

round. If such practice were to be permitted, no order of unauthorized

construction would ever be implemented.

The petition is therefore dismissed. I refrain from imposing any

costs.

RAJIV SAHAI ENDLAW (JUDGE)

JANUARY 19, 2011 (corrected and released on 3rd February, 2011) 'gsr'