Mohan Singh Market & Ors. vs Union Of India & Ors.
2015 Latest Caselaw 8612 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                   Date of decision: 19th November, 2015.

+                               W.P.(C) 4369/2013

       MOHAN SINGH MARKET & ORS.                   ..... Petitioners
                   Through: Mr. Pramod Gupta, Ms. Deepika
                            Singh and Ms. Srishti Pandey, Advs.

                                Versus

       UNION OF INDIA & ORS.                               ..... Respondents

                    Through:           Mr. Ajay Digpaul, Mr. Kunal and Mr.
                                       Vinal Gosain, Advs. for R-1&4.
                                       Mr. Dharmendra Sharma and Ms.
                                       Swati Jain, Advs. for R-3/DMRC.
                                       Mr. Digvijay Rai and Mr. Syed
                                       Hassan Bin Taher, Advs. for R-
                                       7/SDMC with Mr. S.C. Yadav, EE.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1. Neither the counsel for the petitioners nor the counsel for the

respondent No.3 Delhi Metro Rail Corporation Ltd. (DMRC) are present.

'Non-main' counsels appearing on behalf of both have no instructions or

knowledge of the facts of the case and merely seek a passover.

2. The matter is unlikely to reach if passed over. The petition being old,

cannot be adjourned. The file has been perused with the assistance of the

counsel for the respondents No.1&4 Union of India (UOI) and the counsel

for the respondent No.7 South Delhi Municipal Corporation (SDMC). None

appears for the respondents No.2,6&8 Govt. of NCT of Delhi (GNCTD),

Deputy Commissioner of Police and Central Public Works Department

(CPWD) also. The counsel for the respondent UOI states that he has no

instruction from the respondent No.8 CPWD.

3. The petitioner No.1 is claims to be an Association of 30 shopkeepers

of Mohan Singh Automobile Market, INA, New Delhi, stated to be having in

all 48 shops; the remaining shops are stated to be non-functional. The

petitioners No.2 to 5 are four of the members of petitioner No.1 Association.

4. The grievance with which the petition has been filed is that upon the

commencement of the work by respondent No.3 DMRC, the 80 feet wide

Pandit Bhagwan Sahai Vathsvithi Road providing access to the market

aforesaid has been blocked and the access to the market instead has been

provided from a 10 to 15 feet wide slip road, which is a pedestrian walk-way

and not sufficient for the shopkeepers to carry on their business. This

petition has been filed claiming the following two reliefs:

"a. Issue a writ of Mandamus or any other appropriate writ, order or direction, directing the respondent to remove the blockage on Pt. Bhagwan Sahai Vathsvithi Road and grant throughfare to Mohan Singh Automobile Market, INA, New Delhi for the easy access of shops of the Petitioners for both the customers as well as the shop keepers;

b. Issue a writ of Mandamus or any other appropriate writ, order or direction, directing the respondent to grant compensation to the shopkeepers of INA Mohan Singh Automobile Market for the severe financial loss caused to them as a result of blockage of access to their shops and to alleviate the sufferings of the Petitioners; and"

5. At this stage, the counsel for the petitioners has appeared. He states

that though certain directions were issued vide orders dated 14 th January,

2014 and 27th May, 2015 to ensure accessibility to the shops but even those

have not been complied with. On further enquiry, it is stated that the said

directions were to the respondent No.1 & 4 UOI / Land & Development

Office (L&DO) and to the respondent No.3 DMRC.

6. The counsel for the respondent No.1 UOI controverts and states that

the directions have been complied with and followed and further states that a

contempt case has also been filed by the petitioners alleging non-compliance

of the said directions and which is pending before the Roster Bench.

7. The counsel for the respondent No.3 DMRC upon receiving

telephonic instructions from Mr. Pushkar Sood, Advocate for the respondent

No.3 DMRC states that it is the stand of the respondent No.3 DMRC also

that it has complied with the directions already issued.

8. I have in the circumstances enquired from the counsel for the

petitioners, as to what other relief can be granted to the petitioners. The

Metro Rail project, which is a project of public importance, cannot be stalled

and / or altered at the behest of the petitioners. In this regard it may also be

noted that that is also not the relief claimed in the petition. The counsel for

the petitioners today also clarifies that the petitioners are not seeking the

same and are only seeking a proper access to their market. It is however

admitted that as far as Pandit Bhagwan Sahai Vathsvithi Road is concerned,

pillars for elevated corridor of Metro Rail have been constructed thereon and

the same is now not available.

9. Attention is however invited to the reply dated 19th February, 2015 of

the respondent No.3 DMRC to a query under the Right to Information Act,

2005 that till then no blueprint of traffic integration and circulation plan had

been developed by Unified Traffic & Transportation Infrastructure (Planning

& Engineering) Centre (UTTIPEC) and thus the same could not be delivered

and that the final restoration plan of the areas were also under preparation.

The counsel for the petitioners on the basis thereof has argued that such

works affecting the layout ought not to have been commenced, without

inviting public participation and consultation in implementation thereof to

ensure that the residents, including of commercial premises in the vicinity,

do not suffer any business loss.

10. Upon it being enquired whether there exists any provision in law and /

or what is the right of the petitioners to insist upon the same, the counsel

states that there is no law but the same is part of common law. I may add

that the legislature wherever has found it necessary, has provided for such

public consultation, as under the Environment Protection Laws. It is not the

case of the petitioners that the subject project is in violation of any of such

laws.

11. I am of the opinion that if such public consultations were to be

mandated for all public projects likely to affect any citizen, the finalisation

and implementation of the projects would be unduly delayed and the project

would never be able to take off. The petitioners cannot be said to be having

any right in law to at all times have access to their shops from 80 feet wide

road only. The work of the respondent No.3 DMRC, as aforesaid, is in

public interest and the mass rapid transport system developed by the

respondent No.3 DMRC has already done yeoman service to the citizenry of

Delhi and it is settled principle of law that private interest will have to yield

to larger public interest. Certain inconvenience to the residents in the

vicinity of such a mammoth project is implicit, particularly during the course

of extension thereof. However that cannot be a reason to interfere with the

project. Reference in this regard can be made to the judgments of Division

Benches of this Court in Patel Engineering Ltd. Vs. Union of India

MANU/DE/5684/2012 and Harish Chander Vs. Hindustan Petroleum

Corporation Ltd. 218 (2015) DLT 588.

12. As far as the contention of the counsel for the petitioners, of the

respondents having erred in commencing the project without even evolving a

plan till now, is concerned, experience of life has shown that such plans keep

on changing as per the exigencies from time to time and depending upon the

obstructions encountered in execution of the project and which could not

have been envisioned at the time when the project was conceived. It cannot

be said that merely because the traffic plan of the area has not been finalised

as yet, there is any error in execution of the project. It thus does not

constitute a ground of challenge. In any case no relief in such terms has

been claimed.

13. This Court has vide interim orders aforesaid already protected the

interest of the petitioners by directing (i) the wall barricading the service lane

to be broken; (ii) clearance of filth; (iii) removal of unauthorised parked

vehicles; and, (iv) removal of encroachments as depicted at page 206 of the

paper book.

14. I have enquired from the counsel for the petitioners, whether any

further direction is required to be issued to facilitate the petitioners within

reasonable limits.

15. The counsel for the petitioners instead of suggesting any other

direction which can be issued, states that even though he is not pressing for

compensation (after this Court has observed that claims for such

compensation cannot be subject matter of writ jurisdiction) but a direction

should be issued to the respondent No.3 DMRC to hold an enquiry of the

losses suffered and being suffered by the members of the petitioner No.1

Association.

16. In my opinion, no such direction also can be issued. Merely because

the Courts, in exercise of writ jurisdiction, upon finding gross injury caused

owing to State negligence or inaction requiring urgent relief have granted

compensation in writ jurisdiction, does not mean that the writ jurisdiction is

to become a substitute or to overtake the ordinary civil jurisdiction of the

Courts to entertain all claims for compensation. An erroneous impression

seems to be gaining ground that a writ remedy is the panacea for all kinds of

maladies affecting the public. In fact, all the persons on whose behest

compensation is claimed are not even before this Court. No relief of

compensation can be granted for this reason alone.

17. No other argument has been raised.

18. The petition is disposed of reiterating the directions against the

respondents UOI / L&DO and the respondent No.3 DMRC already issued

and directing them to comply therewith. The other claims in the petition are

dismissed.

No costs.

Copy of this order be given dasti under the signatures of the Court

Master.

RAJIV SAHAI ENDLAW, J.

NOVEMBER 19, 2015 bs