*IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 20 th July, 2010. + W.P.(C) 3694/2010 & CM No.7394/2010 (for interim relief) % ISHWAR DEVI & ANR. Through:... Petitioners Mr. K.S. Bhati, Advocate with Mr. Badal Jaswal & Ms. Meenakshi Mohan, Advocates Versus UNION OF INDIA & ORS.... Respondents Through: Mr. Neeraj Chaudhari & Mr. Mohit Auluck, Advocates for R-1. Mr. Shyel Trehan & Ms. Diya Kapur, Advocates for R-2. Ms. Rashi Bansal, Advocate for R-4. Mr. Shankar Dass, respondent no.5 in person. CORAM :- HON BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. Whether reporters of Local papers may be allowed to see the judgment? No 2. To be referred to the reporter or not? No 3. Whether the judgment should be reported No in the Digest? RAJIV SAHAI ENDLAW, J. 1. The two petitioners have filed this petition stating that the petitioner no.1 is the owner of Front Side, measuring 40 square yards of property No.25/2, Ashok Nagar, New Delhi-110 018 admeasuring total 100 square yards; that some of the documents of the said portion are in the name of the petitioner no.2 and claiming the following reliefs: W.P.(C)3694/2010 Page 1 of 5
(a) Issue an appropriate, writ or direction thereby restraining the respondent not to carry out any further demolition over property in question. (b) Issue appropriate writ(s) / order(s) or direction(s) in the nature of mandamus thereby directing the respondents to correct the record pertaining to the property of the petitioner no.1; and direct the respondents to pay compensation to the petitioner for the illegal demolition of her house by the respondents; to immediately restore the sewerage line in the house of the petitioner. (c) Issue order to conduct the enquiry through the C.B.I. against the respondents since the elements of the matter involve both civil and criminal nature. (d) Direct respondents no.4 to take action stringent measures to prevent unabated atrocities being meted out to the poor, ailing and aged womenfolk thereby causing mental agony and humiliation in nexus with the various government functionaries by the respondents especially the respondent no.5. (e) Pass a direction to conduct an enquiry and take necessary action against corrupt officials of respondent no.2, i.e. M.C.D., who visited and illegally carried out demolitions of the petition no.1 s house and because of whom the petitioners were pressurized to live on road in inhuman situations. (f) Direct the respondents to pay cost of litigation to the petitioners. W.P.(C)3694/2010 Page 2 of 5
(g) Pass such other order / orders which this Hon ble Court may deem fit and proper in the facts and circumstances of the case in the interest of justice. 2. Notice of the petition was issued on 26 th May, 2010 and the MCD directed to file the status report. As per the report filed by the MCD the property is situated in a rehabilitation colony and has 100% coverage from the ground to the second floor and approximately 40% coverage on the third floor; that there are projections on municipal land on both sides. That the property was booked as far back as in 2003 for unauthorized construction of ground floor, first floor, second floor and part of third floor and demolition action was taken in 2007-08. It is further stated that one Devpal (who, the petitioner no.2 present in person in Court states, was the original owner of the property) had got the property regularized on 19 th March, 2008 for ground floor, first floor and part of the second floor. It is further stated that there is thus unauthorized construction on part of the second floor and third floor and with respect whereto action was to be taken. The counsel for the respondent MCD also states that the demolition action of the year 2008 was taken with respect to the property as per orders in WP(C) No.6847/2007 titled Shanker Dass Falwaria Vs. MCD. The said Shanker Dass Falwaria has been impleaded as the respondent no.5 in the present petition. 3. The remedy if any of the petitioners, in so far as of the threat if any of the respondent MCD to demolish the unauthorized construction, if any, in the property, is by preferring an appeal to the Appellate Tribunal. The counsel for the petitioners states that further regularization of the unauthorized portion is also permissible. It will be open to the petitioners to seek the said regularization also if entitled to. However, the petitioner cannot invoke the writ remedy for the reason of the availability of W.P.(C)3694/2010 Page 3 of 5
alternative remedy of appeal. 4. In so far as the relief claimed of correcting the record pertaining to the property is concerned, the counsel for the petitioners has not been able to show any application made by the petitioners for mutation of the property in their own name. The petitioners cannot straightaway approach this Court in this regard. It will be open to the petitioners to approach the MCD for mutation in their name and if remain aggrieved against the order, if any, of the MCD shall have their remedies in law. 5. The claim of the petitioners for alleged illegal demolition carried out in 2008 cannot also be entertained in this writ petition particularly when the petitioners have been unable to show that the construction was authorized at the time of demolition. As aforesaid, according to the MCD, the entire construction was illegal at the time of demolition action in 2008 and only thereafter some portions have been regularized. If the petitioners contend otherwise, the same will again entail disputed questions of fact which cannot be adjudicated in the writ Court and the remedy of the petitioners is elsewhere. 6. There is no basis whatsoever for claiming the relief of enquiry by C.B.I. and against the officials of the MCD. The petition in so far as the said reliefs are concerned is dismissed. However, I refrain from awarding any costs against the petitioners. The counsel for the petitioners at this stage states that the sewer line of the property is blocked and should be directed to be made functional. The counsel is unable to show any demand in this regard. The petitioners without approaching the authorities cannot straightaway seek mandamus. It goes without saying that upon the petitioners approaching the MCD and other authorities for their grievances, the said grievances shall be looked into by the authorities concerned in W.P.(C)3694/2010 Page 4 of 5
accordance with law. 7. No steps were taken by the petitioners for service of notice on the respondent no.5. The respondent no.5 however appears in person. 8. The petition is disposed of. No order as to costs. 20 TH JULY, 2010 gsr RAJIV SAHAI ENDLAW (JUDGE) W.P.(C)3694/2010 Page 5 of 5