Delhi High Court
Ashutosh Diwedi vs South Delhi Municipal ... on 11 April, 2022
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 5821/2022, CM APPL. 17480/2022, CM APPL. 17481/2022
Date of Decision 11/04/2022
IN THE MATTER OF:
ASHUTOSH DIWEDI ..... Petitioner
Through: Mr. Dushyant Yadav and Mr. Jayant
Sharma, Advocates.
versus
SOUTH DELHI MUNICIPAL CORPORATION & OR .... Respondents
Through: Mr. Umesh K. Burnwal, ASC for
respondent No.1.
Mr. Divyam Nandrajog, Panel
Counsel for respondent No.2.
CORAM:
HON'BLE MR. JUSTICE MANOJ KUMAR OHRI
JUDGMENT
Manoj Kumar Ohri, J. (ORAL)
1. The present petition has been filed under Article 226 of the
Constitution of India on behalf of the petitioner seeking the following
prayers:-
"a. Issue a Writ of Mandamus or a writ of any other nature or
direction in like nature the Respondent No. 1 forthwith
remove/demolish the unauthorized construction at property No.
R-180, Vani Vihar, Uttam Nagar, New Delhi- 110059.
b. Issue a writ of mandamus or a writ of any other nature or any
other direction/order directing the Respondent No. 2 to provide
the police force for removal of unauthorized construction at
property no. R-180, Vani Vihar, Uttam Nagar, New Delhi-
110059.
c. Pass any of the order which this Hon'ble Court may deem fit
and proper in the facts and circumstances of the present case."
2. The petitioner has claimed himself to be a resident of House No. Q-
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174, Q-Block, Vikas Nagar, Uttam Nagar, New Delhi - 110059. It is
admitted by the learned counsel for the petitioner that neither the petitioner's
easement rights nor ingress/egress are affected by any alleged construction
activity carried out by respondent No. 3 in the subject property.
3. Learned counsels appearing for respondent Nos. 1 and 2 have taken a
preliminary objection to the maintainability of the writ petition, alleging that
the same is a motivated one.
4. Learned ASC for respondent No.1, on advance instructions, submits
that the petitioner is a habitual complainant, inasmuch as, six to seven
complaints have been filed by him with respect to other properties. He, on
instructions, further submits that the petitioner is in no way affected by the
alleged unauthorized construction.
5. On a specific query, learned counsel for the petitioner concedes that
the petitioner has filed other writ petitions however, he is unable to give
details of the same.
6. I have heard learned counsels for the parties as well as perused the
material placed on record.
7. There is no gainsaying that a petition under Article 226 of the
Constitution of India lies only for enforcement of a fundamental or legal
right.
8. Notably, a Co-ordinate Bench of this Court in Rajendra Motwani &
Anr. v. MCD & Ors. reported as 2017 SCC OnLine Del 11050 has held as
follows:-
"10. ...that an illegal construction in itself does not give any
legal right to a neighbor. An illegal construction always no
doubt gives locus standi to the local municipal authorities to
seek removal of the illegal construction, but, a right of a
neighbor only arises if the legal rights of light and air or any
other legal right is affected by virtue of the illegal construction
of the neighbour..."
9. Recently, in Pawan Kumar Saraswat v. North Delhi Municipal
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Corporation and Others reported as 2021 SCC OnLine Del 4530, another
Co-ordinate Bench of this Court took note of a petition filed under Article
226 of the Constitution of India, invoking extraordinary jurisdiction of this
Court for relief such as the one sought in the present petition. The learned
Judge observed as follows:-
"15. Though unauthorized illegal construction, which is
becoming rampant, cannot be countenanced however, I am of
the view that a party that does not approach the Court with
clean hands and files a petition with ulterior motives should not
be permitted to invoke the extra ordinary Writ jurisdiction of this
court. I am of the view that the petition deserves to be
dismissed."
10. In the present case, the petitioner admittedly does not have any
connection with the property in question. He has further failed to show as to
which fundamental or legal right of his is being affected by any alleged
construction activity carried out in the subject property. It is quite apparent
that the present petition has not been filed for enforcement of any
fundamental or legal right, but rather for some motivated reasons.
11. In this backdrop, this Court is not inclined to exercise its power under
Article 226 of the Constitution of India to grant the relief sought by the
petitioner.
12. Accordingly, the present petition is dismissed, with a cost of
Rs.5,000/- to be deposited by the petitioner with the Delhi State Legal
Services Authority within a period of four weeks from today.
13. Proof evidencing receipt of deposit shall be filed with the Registry of
this Court, failing which the Registry shall list the matter before this Court.
14. A copy of this order be communicated electronically to Member
Secretary, Delhi State Legal Services Authority, Patiala House Courts, New
Delhi for information.
15. Be that as it may, respondent No.1 shall take necessary action in case
any unauthorized construction activity takes place, or has taken place, in the
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subject property, except in accordance with a sanctioned building plan, if
any. In the event of any grievance arising hereafter, the petitioner shall be at
liberty to approach the Special Task Force constituted by DDA pursuant to
directions of the Supreme Court.
16. With the above directions, the petition is disposed of. Miscellaneous
applications are disposed of as infructuous.
(MANOJ KUMAR OHRI)
JUDGE
APRIL 11, 2022
ga
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