Jagan Nath Sharma vs Mcd & Ors.
2012 Latest Caselaw 2276 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        W.P.(C) 2543/2011

                                                   Decided on: 10.04.2012

IN THE MATTER OF
JAGAN NATH SHARMA                                    ..... Petitioner
                         Through: Mr. Rajat Aneja and Ms.Shweta Singh
                         Advocates


                    Versus


MCD & ORS.                                              .... Respondents
                         Through:Ms.Manpreet Kaur, Advocate
                         for Respondent No.1
                         Mr.N.Prabhakar, Advocate for Respondents
                         No.3,6,10,11,13,15,16,19, 24 & 25
                         Mr.R.K.Sharma, Advocate for Respondents
                         No.4,5,7,8,9,12,14,21 & 22
                         Mr.Surjeet Singh, Advocate for Respondent No.17
                         Mr.Manjit Kapil, Advocate for Respondents No.18
                         & 23
                         Mr.L.K.Garg, Advocate for respondent No.26.


CORAM
HON'BLE MS.JUSTICE HIMA KOHLI


HIMA KOHLI, J. (ORAL)

1. This petition is filed by one Sh.Jagan Nath Sharma, son of Sh.

Jai Narain Sharma, a resident of House No.9, Village Basant Nagar, New

Delhi praying inter alia for issuance of a writ of mandamus to the

respondents No.1 & 2 to take appropriate action in respect of the

unauthorized construction and encroachment made in their respective

properties by respondents No. 3 to 25, all residents of village Basant.

2. On 21.4.2011, when the matter came up for admission, in

view of the submission made by the counsel for the petitioner that he did

not wish to press reliefs (b) & (c) made in the prayer clause and instead

sought to confine the relief in the present petition to prayer (a) alone,

notice was issued in the present petition limited to prayer (a) and

respondent No.1/MCD was directed to file a counter affidavit setting out

the action taken by the Department, in respect of the unauthorized

construction, if any, existing in the premises in question occupied by

respondents No.3 to 25.

3. On 15.11.2011, learned counsel for respondent No.1/MCD had

submitted that the present petition was not maintainable for the reason

that the issue raised by the petitioner herein had been agitated by his

brother, Sh.Shyam Sunder Sharma in an earlier writ petition filed by him,

registered as WP(C) No.5632/2010, entitled "Shyam Sunder Sharma Vs.

MCD & Ors." which was disposed of vide order dated 24.11.2010.

However, some time was sought by the learned counsel for respondent

No.1/MCD to file a counter affidavit along with a copy of the order passed

in the aforesaid writ petition.

4. As per the order dated 24.11.2010 passed in the aforesaid

writ petition that had been filed by Sh.Shyam Sunder Sharma, brother of

the petitioner, properties of 12 other persons in the colony besides the

property of the petitioner therein, were sealed and the remaining

properties had been surveyed along with the Delhi Police on 16th

November, 2010 and no ongoing construction was found in the remaining

properties. It was clarified that there was ongoing construction in the

property of the petitioner therein as well as in the 12 other properties that

had been sealed. It was further stated that the action for unauthorized

construction, if any in other properties, could not be taken at that time in

view of the promulgation of the National Capital Territory of Delhi

Laws(Special Provisions) Second Act, 2009 and that action would be taken

in accordance with law immediately after the said protection is removed.

A copy of the aforesaid order is handed over by learned counsel for

respondent No.1/MCD and taken on record.

5. A perusal of the aforesaid order reveals that counsel for the

petitioner in the aforesaid writ petition is the same as in the present case.

It is not denied by the learned counsel for the petitioner that the

petitioner in WP(C) No.5632/2010 happens to be the brother of the

petitioner herein and he is residing in the same locality. It is also not

denied that the petitioner is well aware of the order dated 24.11.2010

passed in WP(C) No.5632/2010, but the said fact has not been stated

anywhere in the present writ petition or for that matter, brought to the

notice of this Court even thereafter.

6. In its counter affidavit, respondent No.1/MCD has stated that

in terms of the order dated 24.11.2010 passed in the aforesaid writ

petition, a survey of Basant Village was carried out and wherever it was

found necessary, action against illegal constructions was taken from time

to time. Enclosed with the affidavit is a tabulated statement in respect of

21 properties situated in village Basant indicating therein the status of the

properties and the action, if any, taken in respect thereof. The last

column of remarks shows that in most of the cases, there is a note that

the constructions in the properties are protected under the Delhi Laws

(Special Provision) Act, according to which, there is a moratorium granted

upto 31.12.2011, in respect of properties situated in villages. Learned

counsel for respondent No.1/MCD states that the date mentioned in the

aforesaid remarks column is erroneous inasmuch as the moratorium has

been extended upto 31.12.2013. As regards the property of the

petitioner herein, it is stated that he has himself undertaken unauthorized

construction in his property right from the ground floor to the third floor

and orders of demolition have been passed by the MCD. Aggrieved by

the said orders of demolition, the petitioner had filed an appeal before the

Appellate Tribunal, MCD which is stated to be pending disposal and

wherein, the impugned demolition order has been stayed. It is thus

stated by learned counsel for the respondent No.1/MCD that the present

petition is a gross abuse of the process of the court inasmuch as the

petitioner has deliberately withheld from the Court, information as

regards the earlier round of litigation initiated by his brother against the

same respondents in the earlier writ petition that was disposed of vide

order dated 24.11.2010.

7. It is submitted by learned counsel appearing for respondents

No.3,6,10,11,13,15,16,19, 24 & 25 that the petitioner is deliberately

targetting the aforementioned respondents with an intention to harass

them knowing very well that the moratorium extended under the Special

Provision Act is operative till December 2013. He states that the

petitioner has deliberately selected the respondents herein alone whereas,

in fact and even as per the petitioner, the entire construction carried out

in village Basant by the owners/occupiers is unauthorized. He further

states that the petitioner has intentionally suppressed the fact that

aggrieved by the non-compliance of the order dated 24.11.2010,

Sh.Shyam Sunder Sharma, petitioner in WP(C) No.5632/2010 had also

filed a contempt petition against the respondents, registered as

Cont.Cas(C) No.411/2011, in which notice was issued and the same is

pending consideration before another Bench.

8. In view of the aforesaid background and having regard to the

fact that the petitioner has not approached this Court with clean hands

and has concealed relevant information, including the litigation that had

been initiated by his own brother against the respondents herein in the

year 2010 and further, having regard to the fact that the counsel for the

petitioner herein is the same counsel who had conducted the earlier case

and was therefore aware of the orders passed in WP(C) No. 5632/2010,

this Court is of the opinion that the present case is liable to be dismissed

as it amounts to a gross abuse of the process of the Court. The petitioner

has deliberately suppressed material facts from the Court and has sought

to re-agitate the very same issue that had already been considered and

dealt with in the earlier proceedings initiated by his brother. The Court

also expresses its displeasure at the manner in which the present petition

has been drafted and filed by withholding material information and it

takes exception to the fact that although the counsel in both the petitions

is the same, even he has not made any effort to bring the factum of the

earlier writ petition and the orders passed therein to the notice of this

Court. Furthermore, when the petitioner has undertaken unauthorized

construction in his premises, it does not lie in his mouth to level

allegations against the respondents No.3 to 25.

9. In view of the aforesaid facts and circumstances, this Court

declines to exercise the extraordinary powers vested in it under Article

226 of the Constitution of India in favour of the petitioner. The writ

petition is therefore dismissed with costs of `30,000/- imposed on the

petitioner. The costs shall be deposited with the Delhi High Court

Advocate's Library Fund within four weeks, with proof of deposit placed on

record, failing which, the registry shall place the matter before the Court

for appropriate orders.

                                                       (HIMA KOHLI)
APRIL   10, 2012                                          JUDGE
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