Taj Mohd vs Mcd And Ors
2011 Latest Caselaw 5283 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                   W.P.(C) 1165/2010

                                           Decided on : 01.11.2011

IN THE MATTER OF :

        TAJ MOHD                   ..... Petitioner
                         Through : Mr. Vineet Dhanda, Adv.

                   versus

        MCD AND ORS                    ..... Respondents
                         Through :Ms.Saroj Bidawat, Adv.for R-1/MCD
                         Mohd. Noorullah, proxy counsel for
                         Mr. Anjum Javed, Adv. for R-2 & 3.
                         Mr. Rajesh Pathale, proxy counsel for
                         Mr. M.K. Singh, Adv. for R-4.
CORAM

* HON'BLE MS.JUSTICE HIMA KOHLI

     1. Whether Reporters of Local papers may          No
        be allowed to see the Judgment?

     2. To be referred to the Reporter or not?         No

     3. Whether the judgment should be                 No
        reported in the Digest?


HIMA KOHLI, J. (Oral)

1. Counter affidavit has not been filed by respondent No.4/DDA

despite repeated adjournments granted for the said purpose. In these

circumstances, the right to file counter affidavit stands closed.

2. Rejoinder to the counter affidavit filed by respondent No.1/MCD is

awaited. Counsel for the petitioner states that he does not wish to file

any rejoinder thereto.

3. The present petition is filed by the petitioner praying inter alia for

directions to respondent No.1/MCD to re-construct the shop occupied by

the petitioner as a tenant under the Delhi Wakf Board, which, as per the

petitioner, was illegally demolished on 16.1.2010. The petitioner has

also sought directions to respondents No.2 & 3/Police not to harass him.

Lastly, compensation of Rs.10.00 lacs has been demanded by the

petitioner from respondent No.1/MCD, for the alleged illegal demolition.

4. The stand of respondent No.1/MCD is that the shop in question,

situated at Savitri Nagar near Kali Masjid, New Delhi, was demolished

during an encroachment removal drive, as it was found to have been

constructed on public land. Counsel for respondent No.1/MCD states that

there were a total of four shops in the said area which were found

encroaching on public land, out of which one was occupied by the

petitioner. Out of the remaining three shops, another shop had been

demolished, whose owner has not approached this court in a writ petition.

As far as the third shop was concerned, the owner of the same had

removed the encroachment on his own. In respect of the fourth shop, it is

contended that the owner of the same approached this court, soon after

the aforesaid two shops were demolished, by filing

WP(C)No.1153/2010 entitled 'Rashida Bano vs. MCD'. Vide order dated

6.7.2010 passed in WP(C)No.1153/2010 (Annexure R-1 enclosed with the

affidavit filed by respondent No.1/MCD on 1.4.2011), both MCD and DDA

were directed to give seven days notice to the petitioner therein, in case

either agency was contemplating any action against the said shop. It is

further stated that no action has yet been taken against the said shop and

it is still in existence, even though the shop is admittedly an

encroachment on public land.

5. A perusal of the ordersheet in the present petition shows that this

case was listed on the same date as the aforesaid writ petition and it has

been recorded in the said order dated 6.7.2010 that it is the stand of DDA

in WP(C)No.1153/2010 that the land on which that shop was constructed,

belongs to respondent no.4/DDA and that the petitioner therein was an

encroacher. In light of the same, DDA was directed to be impleaded.

Counsel for respondent No.4/DDA reiterates that DDA is the owner of the

land on which the subject shop is constructed, which fact is also

confirmed by counsel for respondent No.1/MCD.

6. Counsel for the petitioner argues that respondent No.1/MCD has

been acting in a discriminatory manner inasmuch as even though the

petitioner is a similarly placed person as the petitioner in W.P.(C)

No.1153/2010, yet the same relief of seven days notice before

encroachment removal action has not been granted to him. It is further

stated that the MCD has adopted a pick and choose policy and has acted

arbitrarily in not taking any action against the adjoining shop of Rashida

Bano, petitioner in WP(C)No.1153/2010, even though it is admittedly an

encroachment on public land.

7. This Court has heard the counsels for the parties and perused the

affidavit filed by respondent No.1/MCD. The petitioner has failed to place

on record any document of title in respect of the land on which the

subject shop was constructed. Instead, counsel for the petitioner

concedes that the petitioner is not the owner of the subject shop, but

rather a tenant under the Delhi Wakf Board and the latter has not been

impleaded in the present proceedings. The question as to whether the

land underneath the shop which has since been demolished is

government land or not and whether there was an encroachment existing

on it, is a dispute between the landlord/Delhi Wakf Board and the

respondent/DDA, which claims to be the owner of the land. In case any

relief is sought against respondent No.1/MCD for reconstruction of the

shop occupied by the petitioner, the same can only be sought in a

proceeding filed by the landlord/Delhi Wakf Board, and not by the

petitioner/tenant in the present proceedings. Similarly, the claim for

compensation for demolition of the shop, if payable, would be available to

the owner of the shop in question, and a claim for compensation/damages

against the landlord, if available to the petitioner, would lie before another

forum.

8. In the light of the aforesaid observations, the relief sought in the

present petition against respondent No.1/MCD cannot be granted.

However, if the petitioner has any grievance against the landlord/Delhi

Wakf Board, he shall be entitled to seek his remedies as may be

available to him in law.

9. As regards the grievance of the petitioner that respondent

No.1/MCD has discriminated against him, by demolishing his shop while

not taking any such action against the adjoining shop, which is occupied

by Rashida Bano, petitioner in WP(C) No.1153/2010, the said contention

has weight. The shop of the petitioner in W.P.(C.) No.1153/2010 is

admittedly an encroachment on public land as observed in the order

dated 06.07.2010. Therefore, respondent/MCD is directed to take

necessary steps for removal of the said encroachment after issuing a

notice to the said party, in terms of its statement as recorded in the order

dated 6.7.2010 passed in WP(C)No.1153/2010.

The petition is disposed of, while leaving the parties to bear their

own costs.

HIMA KOHLI,J NOVEMBER 01, 2011 sk