Delhi High Court
Kamal Kapoor vs The State & Ors. on 23 May, 2022
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 7140/2022 and CM APPL. 21896/2022
Date of Decision 23/05/2022
IN THE MATTER OF:
KAMAL KAPOOR ..... Petitioner
Through: Ms. Priya Khurana, Advocate.
Versus
THE STATE & ORS. ..... Respondents
Through: Mr. Shashi Pratap Singh and Ms.
Abhilasha, Advocates for
respondent No.1/SHO Kirti Nagar.
Mr. Anand Prakash, Standing
Counsel for Nr.D.M.C. alongwith
Ms. Varsha Arya and Mr. Akhil
Raj, Advocate.
Mr. Ajjay Arora and Mr. Kapil
Dutta, Advocates for MCD.
CORAM:
HON'BLE MR. JUSTICE MANOJ KUMAR OHRI
JUDGMENT
MANOJ KUMAR OHRI, J. (ORAL)
1. By way of present petition filed under Article 226 of the
Constitution of India, the petitioner, who claims to be a social activist
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Signing Date:26.05.2022
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residing at House No. 6/4 First Floor, Ramesh Nagar, H.O., West Delhi-
110015, seeks the following reliefs:-
"a) Direct the respondent No.1 to 6 to demolish/clear the
entire 3rd Floor and excess area in the shape of chhajas
and full coverage of illegal and unauthorised construction
raised on the Property Bearing No. 61/1, 2 & 3rd Floor,
WHS, Furniture Block, Kirti Nagar, New Delhi - 110015 as
the said illegal construction is directly effecting the ingress
and egress of the petitioner and the public to secure the
ends of justice;
b) Direct the respondent No.1 to 6 to file the status report
after removal of encroachment on public street and public
land and 3rd floor of illegal and unauthorised construction
and extended chajjas raised on the Property Bearing No.
61/1, 2 & 3rd Floor, WHS, Furniture Block, Kirti Nagar,
New Delhi - 110015.
c) Direction may kindly be passed to the Respondent No.1
to 6 to take action against the concern officials of the
respondent who are directly allowing the respondent no. 7
and 8 to raise the extended area in shape of chajja and
illegal and unauthorised construction raised on the
Property Bearing No. 61/1, 2 & 3rd Floor, WHS, Furniture
Block, Kirti Nagar, New Delhi - 110015."
2. In the petition, it has been averred that the petitioner is in the
business of property dealing and real estate and came to know that
respondent No.7/Anand Padia and respondent No.8/Avdesh Mishra, who
are owners and builder of the subject property respectively, have carried
out unauthorised construction at the same. It is further averred that
respondent No. 8 being a builder has raised unauthorised construction at
other places as well.
3. Considering the vague averments made in the petition, the
petitioner was directed on earlier occasion to clarify as to how many such
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petitions have been filed by him. In response to the same, an affidavit has
been placed on record by the learned counsel for the petitioner giving the
following details :-
Sl. No. Case No. Title Status
1. W.P.(C) Kamal Kapoor Dismissed as
11850/2021 v. The State of withdrawn vide
NCT of Delhi & order dated
Ors. 25.10.2021
2. W.P. (C) Kamal Kapoor Dismissed as
14457/2021 v. The State withdrawn vide
(NCT of Delhi) order dated
& Ors. 16.12.2021
4. Mr. Ajjay Arora, learned counsel for the respondent/Corporation,
has taken a preliminary objection to the maintainability of the petition,
alleging that the petitioner has been selectively picking properties to file
petitions such as the present one without being connected to the subject
properties in any manner and the same casts a doubt on his intentions. He
further submits that besides the petitions mentioned in the above chart,
the petitioner has also filed W.P.(C) 11782/2021, which is listed today
before this Court. It is informed that the petitioner's father/Satish Kumar
had also filed a similar petition bearing W.P.(C) 14793/2021, which has
been disposed of with a cost of Rs.10,000/-.
5. In addition and without prejudice to the foregoing, Mr. Anand
Prakash, learned Standing Counsel for North DMC, assures that
necessary action would be taken in case any unauthorised construction
takes place, or has taken place, at the subject property, contrary to
sanctioned building plan/bye-laws.
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By:SANGEETA ANAND
Signing Date:26.05.2022
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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
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 has raised grievance regarding
unauthorised construction stated to be going on at the subject property. It
is the admitted case of the petitioner that he neither has any connection
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with the subject property nor is an immediate neighbor of resident
thereof.
11. Further, it is not the case of the petitioner that his easement rights
or ingress/egress are being affected/obstructed by the alleged
construction activity. From a perusal of the petition, it is apparent that
only vague and general averments have been made by the petitioner.
12. A perusal of the above chart placed on record would further show
that the petitions mentioned therein came to be dismissed as withdrawn.
In this backdrop, it appears that the present petition has been filed not to
secure any fundamental/legal right, but for some motivated reasons.
13. Accordingly, the present petition is dismissed with a cost of
Rs.2,000/- to be deposited by the petitioner with the Delhi State Legal
Services Authority within a period of one week from today.
Miscellaneous application is disposed of as infructuous.
14. 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.
15. A copy of this order be communicated electronically to Member
Secretary, Delhi State Legal Services Authority, Patiala House Courts,
New Delhi for information.
16. Needless to state, the respondent/Corporation shall take necessary
action in case unauthorized construction activity takes place, or has taken
place, in the subject property, contrary to sanctioned building plan/bye-
laws. In the event of any grievance arising hereafter, the petitioner shall
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be at liberty to file an appropriate petition and/or to approach the Special
Task Force constituted by DDA pursuant to directions of the Supreme
Court.
(MANOJ KUMAR OHRI)
JUDGE
MAY 23, 2022
ga
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Signing Date:26.05.2022
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