Delhi High Court

B.B.Oberai vs State (Nct Of Delhi) & Ors. on 19 November, 2019

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                      Order reserved on: 02.09.2019
                                       Order decided on: 19.11.2019
        W.P.(CRL) 1322/2019

        B.B. OBERAI                                 ..... Petitioner

                           Through     Mr. Arvind Singh and Mr. Vipin
                                       Singh Raghav, Advocates

                           versus

        STATE (NCT OF DELHI) & ORS                  ..... Respondents

                           Through     Mr.    Sanjay    Lao,    ASC
                                       (Criminal) with SI Abhishek
                                       Kumar, P.S.: Amar Colony

                                       Ms. Aakanksha Kaul, ASC with
                                       Mr. Manek Singh, Advocate for
                                       Respondent Nos. 2 to 5

        CORAM:
        HON'BLE MR. JUSTICE BRIJESH SETHI
                      JUDGMENT

BRIJESH SETHI, J.

1. Vide the instant writ petition filed under Article 226 of the

Constitution of India r/w. Section 482 Cr.P.C, petitioner has prayed

for issuance of a writ of mandamus or any other writ, order or

directions in the nature of mandamus directing the respondent no.1

& 2 to initiate appropriate department action against the respondent

3 to 5 for illegal demolition of part of property bearing no. B-66,

Amar Colony, Lajpat Nagar, New Delhi i.e. house of the petitioner;

directing the respondent no. 2 to lodge appropriate criminal

complaint against the respondent no.3 to 5 and also to direct the

respondent no. 1 to provide police protection to the petitioner and

his family members.

2. It is submitted by Ld. Counsel for the petitioner that

petitioner had constructed his house bearing no. B-66, Amar

Colony, Lajpat Nagar, New Delhi as per the MCD Rules &

Regulations in year 1959 and is residing there along with his wife

Smt. Kailash Oberai. Respondent nos. 6, 7 & 8 are the residents in

the same neighbourhood and respondent no. 6 and 7 are owner of

the property bearing no. B-63 & B-64, Amar Colony, Lajpat Nagar,

Delhi whereas the respondent no. 8 is the President of the Resident

Welfare Association.

3. It is alleged that in the year 2012, the respondent no. 6 & 7

had extended their house from the back and front side by

encroaching upon government land which blocked the back lane of

the property bearing nos. B-63 & B-64, Amar Colony, Lajpat

Nagar, New Delhi. Due to this encroachment, the lane has been

narrowed down to a great extent creating a bottleneck. The

respondent nos. 6, 7 & 8 have over constructed the area by

occupying 110 square yards and have gone beyond their plot of 100

sq. and encroached upon the road and built four floors.

4. It is further submitted that petitioner made a complaint to the

respondent no.2, but no action was taken against the illegal

encroachment by the respondent no. 6 & 7. Being aggrieved and

disappointed by non-action of the respondent no.2, petitioner filed

applications/complaints to the Lt. Governor of Delhi dt. 06.07.2013

and 07.08.2014 for taking appropriate legal action against the

illegal encroachment upon the government land but no

communication was received there from.

5. On 16.10.2015, the petitioner received a reply from the

respondent no. 2 Maintenance division, in which it was stated that

the encroachment has been removed but the encroachment stood as

it is except for removal of steel gates. On inquiry, it came to the

knowledge of the petitioner that petitioner nos 2 to 5 are hand in

glove with respondent no. 6, 7 and 8 and respondent no. 3, 4 and 5

have submitted false report in their department regarding removal

of encroachment.

6. It is further submitted that several RTI applications and

complaints were made by the petitioner against the said

encroachment and against respondent nos. 2 to 7 on which they got

annoyed and made plan to demolish the house of the petitioner

illegally for taking vengeance and also threatened the petitioner that

they will teach him a lesson if he will not stop filing RTI

applications.

7. It is submitted by Ld. Counsel that on 04.05.2016 in the

morning at about 10-11 a.m., the respondent nos. 2 to 8 came at the

residence of the petitioner with appropriate police protection and

SDMC labor and machinery and without any notice and without

giving any time to the petitioner to even transfer and remove his

personal things from his house illegally demolished part of the

property of the petitioner. When petitioner tried to know the

matter, Respondent no. 5 Mr. Bhopinder Kumar, JE replied that

they warned him and directed him to stop filing the RTI

applications and complaints but he did not understand the same. It

was further stated that the petitioner should give in writing that he

would not file any RTI and would withdraw all the complaints.

Thereafter, despite showing sanctioned plan issued by the MCD,

respondent no. 5 gave direction to the labourers to demolish the

property of petitioner quickly and they demolished the part of the

house of the petitioner.

8. It is further alleged that officials of Respondent no. 2 did not

follow the law prescribed in Delhi Municipal Corporation Act, and

they have not given previous notice prior to demolition which is

necessary as per Section 345A of Delhi Municipal Corporation Act.

9. It is further submitted that on the same day in the evening,

the respondent no. 4 came to the spot and inspected the entire

situation. Thereafter, he met and discussed with respondent no. 6, 7

and 8 and came to the house of the petitioner and spoke loudly

"Kam thoda hai, isko aur todo, maine to location pahle se fixed kari

thi kitna todna hai aur kis makan ko todna hai" and he marked the

wall of property to increase the area to be demolished and ordered

his labourers to again demolish the house of the petitioner up to the

marked portion mark and the same was demolished again.

10. It is further submitted that on 05.05.2016, the respondent no.

8 came to the house of the petitioner and mocked the situation

saying that "jo kuch bhi SDMC walo ne kiya hai bilkul thik kiya,

per unhe notice to dena chahiye tha aap ko atleast or vaise apko ab

akal aa gayi hogi faltu me panga lene ka matlab" and again

threatened the petitioner that entire house of the petitioner will be

demolished and petitioner his family will be thrown out on the road

with the connivance of respondent no.2 to 5, if the petitioner would

not stop filing complaints against them. In the evening again the

Respondent no. 4 and 5 came at the property of the petitioner and

with the connivance of respondent no. 6 to 8 deliberately again

demolished the house of the petitioner from back side in such a

manner that it could not be repaired in a day or two.

11. On 23.05.2016, petitioner filed an RTI to Police

Commissioner of Delhi and sought police protection from

respondent no. 2. On 04.09.2018, the Building Department of

Respondent no. 2 replied and attached a letter dated 26.04.2016 in

which the Assistant Engineer N.S.Meena i.e. Respondent no. 4 was

requested to provide adequate police along with lady police.

12. On 06.10.2018, the petitioner again filed a detailed RTI

application addressed to Mr. Deepak Kumar Khosla,

Ex.Engineer(M)-I PIO of respondent no. 2 and sought information

of illegal demolition of property no. B-66, Amar Colony, Lajpat

Nagar-IV, New Delhi and asked why illegal encroachment of

property bearing no. B-63 and B-64, Amar Colony, Lajpat Nagar,

New Delhi was not removed. On 23.10.2018, the respondent sent

reply to the petitioner in which they accepted that the encroachment

removal was being carried out by the Maintenance Department in

respect of encroachment on public streets/lanes.

13. It is further submitted that the petitioner has filed a written

complaints dated 08.03.2019 to Commissioner of South Delhi

Municipal Corporation against the respondent no.3, 4 & 5 for illegal

demolition of his property and complaint dated 18.03.2019 to the

Deputy commissioner of Police South East Delhi against

respondent nos. 3, 4, 5 and 6 but no action has been taken till date.

14. It is lastly submitted that petitioner had approached many

authorities and filed many RTI applications and complaints before

respondent no.2 and other authorities regarding encroachment on

government land by respondent no. 6 and 7 but no appropriate

action has been taken till date against them.

15. In reply to the above petition, respondent no.2, SDMC

through Sh. Deepak Kumar Khosla, Ex. Engineer (M)-I, Central

Zone, SDMC filed status report submitting therein that as per

available records and information gathered from the field staff

(particularly Sh. Bhupinder Kumar, JE/ respondent no.5), Sh. M. K.

Munjal, R/o B-64, Amar Colony, Lajpat Nagar, New Delhi has

filed a complaint in the Maintenance Division of the SDMC (vide

diary no. 11252 dated 03.03.2016) regarding "encroachment &

Possession over Government land property bearing No. B-66, Amar

Colony, Lajpat Nagar-IV, New Delhi owned by petitioner Sh. B.B.

Oberoi". With the said complaint Sh. M.K. Munjal had also

enclosed the earlier letters dated 12.10.2015 and 11.02.2016

alleging that the owner of property No. B-66, Amar Colony has

encroached the Govt. land and constructed rooms etc. on

encroached area about 6 feet x 15 feet and requested that action

may be taken at an early date.

16. It is further submitted in the status report that pursuant to the

aforesaid complaint, the Maintenance Department of SDMC carried

out the site inspection of the back lane from House Nos. B-57, to B-

68, Amar Colony, Lajpat Nagar. The property no.l B-66, amar

Colony pertaining to Sh. B.B.Oberio also falls in the same back

lane. During the inspection, the said field staff found that structures

were temporary in nature (i.e. in the shape of iron grills and iron

gates, steps etc.) and were encroaching the area of street/lane

beneath the projected portions of balconies which belonged to the

government. Thus, the officiating staff of Maintenance Division-I,

Central Zone scheduled necessary programme for removal of

encroachment from B-Block, Amar Colony for 04.05.2016.

Accordingly, a request letter was written to Deputy commissioner

of Police(South-East District), New Delhi for providing the police

force vide letter no. D/EE (M)-I/CNZ/2016-17/276 dated

26.04.2016. In addition to above, the said field staff also noticed

certain encroachments which were pucca in nature i.e. load bearing

brick walls etc.(Monolithic with the structure of the main building)

on street/lane forming part of government land. However, removal

of such pucca structures falls within the domain of Building

Department, Central Zone. Thus, the action against such pucca

encroachments was to be initiated by the office of Executive

Engineer (Building)-I, Central Zone under the provisions of DMC

Act-1957.

17. It is further submitted that on 04.05.2016, the said field staff

removed temporary structures that were encroaching upon

Government land, including the encroachments by property No.B-

66, Amar Colony, owned by the petitioner, property no. B-64,

Amar Colony owned by Sh. M K Munjal, respondent no.7 and

property no.B-63, Amar Colony owned by Sh. B.S.Ahuja,

respondent no.6.

18. It is further submitted the aforesaid action to remove

encroachments was carried out by the said field staff in the

appropriate legal manner and procedure. The instant petition has

been filed by the petitioner merely to harass SDMC and its officials.

19. As per record, subsequent to the encroachment removal

action conducted on 04.05.2016, the petitioner field various

applications under RTI Act, 2005 seeking the information regarding

the encroachment removal action taken on 04.05.2016 viz ID No.

75/AC/RTI/CNZ/2019 date 09.04.2019, 34848/AC/RTI/CNZ/2018

dated 19.12.2018, 34419/AC/RTI/CNZ/2018 dated 15.10.2018,

154/Dy. A&C/R.K.Puram, New Delhi dated 28.08.2018.

20. In response, the Maintenance Division of SDMC provided

the requisite information under RTI Act-2005 in ID No.

34419/AC/RTIO/CNZ/2018 dated 15.10.2018 and inter alia stated

as under:-

"Point no. A:- the encroachment removal action is being carried out by the Maintenance Division in respect of encroachments on public streets/lanes, as and when noticed. Further, the alleged illegal construction/encroachment on public streets/lanes which forms the part of main building structures and monolithic in nature, the action is being initiated by the Building Department. As such, the RTI application is being transferred to the PIO/EE(Building)-I, Central Zone".

21. It is further submitted in the status report that subsequent to

the aforesaid encroachment removal action, the owner/ occupier of

the property bearing no. B-66, Amar Colony reconstructed a new

building after demolishing the old structure which was subjected to

inspection and removal action. Upon noticing deviation/excess

coverage against Sanction Building Plan No. 12/Saral/CNZ/16

dated 28.09.2016 and construction of room at stilt and parking in

the said new construction, the building-I Department of Central

Zone, South DMC has initiated the proceedings under Sections 343,

344 of the DMC Act- 1957 against the owner/occuire of property

no. B-66, Amar Colony, Lajpat Nagar-IV, New Delhi i.e. the

petitioner vide file No. 247/B/UC/EE(b)-I/CNZ/2019 dated

13.05.2019. It is, therefore, prayed that petition filed by the

petitioner is without any substance and it should be dismissed in the

interest of justice.

22. I have heard the rival submissions and gone through the

entire material placed on record.

23. It is mainly contended by learned counsel for the petitioner

that property of the petitioner bearing no. B-66, Amar Colony,

Lajpat Nagar, New Delhi was illegally demolished by the

respondent no. 2 at the instance of respondents nos. 3 to 5 in

collusion with respondent no. 6 to 8 as he has made complaint

against unauthorized constructions raised by respondent no. 6 and 7

with the respondent no. 2 i.e. South Delhi Municipal Corporation.

It is further contended that house of the petitioner was demolished

on 04.05.2006 without giving any notice under Section 343 of

DMA Act, 1959 and thereby Respondent no. 2 violated the law

prescribed under the Act.

24. Having perused the entire material placed on record,

particularly the status report filed by the respondent no. 2, I am not

in agreement with the contention of learned counsel for the

petitioner that he is being harassed and his property was demolished

just to take vengeance from the petitioner by respondent nos. 2 to 8

because petitioner took a stand against the illegal encroachment

carried out by the respondent nos. 6, 7 and 8. Perusal of status

report, filed by the respondent no.2, reveals that Respondent no. 7

made a compliant in the Maintenance Division of the SDMC vide

diary no. 11252 dated 03.03.2016 regarding encroachment and

possession over the Government land by Mr. B.B.Oberai, owner of

property bearing no. B-66, Amar Colony, Lajpat Nagar, New Delhi.

On the basis of said compliant, an inspection was carried out at the

back lane of house nos. B-57 to N-68, Amar Colony, Lajpat Nagar-

IV. Perusal of status report further reveals that demolition process

of illegal construction was carried out not only at B-66, Amar

Colony, owned by petitioner but at property no. B-63 and B-64,

Amar Colony owned by respondent no. 6 and 7 respectively. So in

view of status report, it cannot be said that only the house of

petitioner was targeted for the purpose of demolition of illegal

construction. It has also come on record that petitioner no.1 who is

the owner/ occupier of the property bearing no. B-66, Amar Colony

has reconstructed a new building after demolishing the old structure

and, therefore, proceedings under Section 343 & 344 of DMC Act

1957 have been initiated against him. From the entire facts on

record, it transpires that petitioner has not come in court with clean

hands. He has suppressed material facts of illegal construction

raised by him over his property i.e. B-66, Amar Colony, Lajpat

Nagar, and New Delhi and is, therefore, not entitled for any

equitable relief. Reliance in this regard is placed upon in

"Poonamchand & Ors. vs. State of M.P. & Ors., W.P.

139/2017", wherein Hon'ble Supreme Court has held as under:-

7. In Prestige Lights Ltd. v. SBI (2007)8 SCC 449 , it was held that in exercising power under Article 226 of the Constitution of India the High Court is not just a court of law, but is also a court of equity and a person who invokes the High Court's jurisdiction under Article 226 of the Constitution is duty-bound to place all the facts before the Court without any reservation. If there is suppression of material facts or twisted facts have been placed before the High Court

then it will be fully justified in refusing to entertain a petition filed under Article 226 of the Constitution. This Court referred to the judgment of Scrutton, L.J. in R.V. Kensington Income Tax Commissioners (1917)1 KB 486 (CA) and observed: (Prestige Lights Ltd. Case (2007)8 SCC 449 , SCC p. 462, para 35) In exercising jurisdiction under Article 226 of the Constitution, the High Court will always keep in mind the conduct of the party who is invoking such jurisdiction. If the applicant does not disclose full facts or suppresses relevant materials or is otherwise guilty of misleading the court, then the Court may dismiss the action without adjudicating the matter on merits. The rule has been evolved in larger public interest to deter unscrupulous litigants from abusing the process of court by deceiving it. The very basis of the writ jurisdiction rests in disclosure of true, complete and correct facts. If the material facts are not candidly stated or are suppressed or are distorted, the very functioning of the writ courts would become impossible. (Emphasis supplied)

25. In view of the above law laid down by Hon'ble Supreme

Court, the petitioner who has not come to the court with clean

hands and has suppressed material facts from this court is not

entitled to the relief claimed by him. It is also a settled law that

when an equal efficacious remedy is available, a writ petition

should not be entertained by the court. In the present case, the

petitioner has got an equal efficacious remedy by filling civil suit

for damages for alleged wrongful demolition, if any, of some

portion of his house. He can also file a criminal complaint against

the officials of the respondents for wrongful or illegal acts

committed by them which were beyond the scope of their duty. In

view of the fact that petitioner has concealed the material facts from