Krishan Lal vs Dda
2011 Latest Caselaw 4359 Del

$~8.
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+        W.P.(C) 4230/2006, CM No.20005/2010 (of the petitioner to place on
         record additional fact) & CM No.449/2011 (for impleadment).
         KRISHAN LAL                                   ..... Petitioner
                           Through: Mr. Aseem Mehrotra, Adv.
                                   versus
         DDA                                              .... Respondent
                           Through:    Ms. Sangeeta Chandra, Adv.
         CORAM:
         HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
                                 ORDER

% 06.09.2011

1. The petition impugns the order dated 3 rd February, 2006 of the

respondent DDA cancelling the lease of the land underneath shop no.124,

Mall Road, Kingsway Camp, Delhi - 110 009 on the ground of unauthorized

construction having been raised on the said plot of land.

2. The counsels inform that several other petitions with respect to

cancellation of leases of other shop plots in Kingsway Camp have also been

preferred and are listed next before this Court on 16 th September, 2011. It is

further informed that though this petition was earlier being taken up along

with the other petitions but was segregated therefrom for the reason of the

challenge to the cancellation in the present petition being on different

grounds.

3. The counsel for the petitioner has contended that though the notice to

show cause prior to cancellation and the order of cancellation state that the

cancellation is on account of the petitioner having illegally constructed an

additional floor over the plot but the counter affidavit of the respondent

DDA and the replies received now by the petitioner to the RTI queries show

that the survey of the respondent DDA had also not found the construction

of an additional floor on the land. It is thus contended that the order of

cancellation is liable to be set aside on this ground alone. It is further stated

that the stand of the respondent DDA now in the counter affidavit as well as

in the survey was of the petitioner having made excessive coverage on each

of the permitted floors i.e. of having made construction in excess of the

FAR. The counsel for the petitioner states that if at all the respondent DDA

intends to take action against the petitioner on the said grounds, the resonant

DDA ought to issue notice to show cause to the petitioner specifying the

said ground and give opportunity to the petitioner to reply thereto.

4. On enquiry, it is informed that the other petitions are cases of

construction of additional floors. It is further informed that it is the case of

the petitioners in other cases that under the MPD-2021 additional FAR is

permissible and the other petitions are pending for consideration inter alia

on the said aspect as to whether additional FAR is available and can the

cancellation be revoked if the existing construction is within the now

permissible FAR.

5. It has been enquired from the counsel for the petitioner whether the

coverage on each of the permitted floors is indeed in excess of the then

permissible limit. The counsel for the petitioner has fairly stated that the

coverage is in excess of the FAR of 180 earlier available.

6. In that view of the matter, I am not agreeable to set aside the order of

cancellation of lease impugned in this petition on the aforesaid technicalities

when admittedly the ground of unauthorized construction for effecting

cancellation existed. The petitioner has approached this Court in equity

jurisdiction and to be entitled to equity must behave equitably.

7. Though the petition is being pursued as against the order of

cancellation of lease but in the garb of interim order obtained herein, the

demolition of the admitted excess coverage has also been stayed. It has been

put to the counsel for the petitioner that even if the writ petition is to be

allowed on the technicalities aforesaid, the respondent DDA would still be

entitled to implement the demolition order. It has further been put to the

counsel for the petitioner that the present petition against the demolition

order would also not be maintainable, the alternative remedy of appeal

before the Appellate Tribunal being available.

8. The counsel for the petitioner at this stage after obtaining instructions

states that he does not press the ground for which the present petition was

segregated from the other petitions and requests that this petition be also

taken up along with the other petitions listed on 16th September, 2011.

9. Allowed.

10. The challenge to the cancellation order on the ground aforesaid is

dismissed.

11. List on 16th September, 2011 along with other petitions.

Interim order to continue.

RAJIV SAHAI ENDLAW, J SEPTEMBER 6, 2011 pp..