*IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 14th July, 2011
+ W.P.(C) No.6831/2010
% MR. SATTAR ALI & ORS. ..... Petitioners
Through: Mr. Raman Duggal, Adv.
Versus
MUNICIPAL CORPORATION OF
DELHI & ORS. ..... Respondents
Through: Mr. Ajay Arora with Mr. Kapil Dutta
& Mr. Sarfraz Ahmed, Advs. for
MCD.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may No
be allowed to see the judgment?
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 five petitioners are aggrieved from the action of the respondent
MCD of demolishing their properties without notice. It is further their plea
that the houses of the five petitioners only were targeted and no action has
been taken with respect to about 100 other houses on the same road.
W.P.(C) No.6831/2010 Page 1 of 24
2. Notice of the petition was issued on 6th October, 2010. The counsel
for the petitioners on that date informed that though the houses of other
petitioners have been fully demolished, the house of one of the petitioners
was only partly demolished. This Court vide order of the said date directed
maintenance of status quo i.e. neither the respondent MCD was to take any
further action with respect to the properties nor the petitioners were to alter
the status thereof. Pleadings have since been completed and the counsels for
the parties have been heard.
3. The five petitioners claim to be owners of properties Nos.1, T-1/439,
434 and 147 (one part of which is stated to be belonging to the petitioner
No.4 and the other part to the petitioner No.5) respectively on Railway Road,
Shadi Nagar, Azadpur, Delhi. The said properties are stated to be comprising
of ground and upper floors. It is the case of the petitioners that they have
been in possession of the said properties ever since purchase thereof between
the years 1989 to July, 2010. It is further the case of the petitioners that
behind their said properties, M2K Victoria Garden Housing Complex is
being developed; that the properties of the petitioners save of the petitioner
W.P.(C) No.6831/2010 Page 2 of 24
No.1 were demolished suddenly on 27th September, 2010 at 10:15 a.m. in the
morning without any notice and at the behest of the developers of M2K
Victoria Garden Housing Complex since the properties of the petitioners
were an eyesore to the prospective occupants of the said Housing Complex.
It is contended that the demolition of pucca structure, some of them
comprising of as many as four floors, without any notice whatsoever is
illegal and in violation of the provisions of NCT of Delhi Laws (Special
Provisions) Second Act, 2009. Reliance in the petition itself is placed on
Neelima Misra Vs. Harinder Kaur Paintal (1990) 2 SCC 746, Union of
India Vs. Tulsiram Patel (1985) 3 SCC 398, Swadeshi Cotton Mills Vs.
Union of India (1981) 1 SCC 664, Olga Tellis Vs. Bombay Municipal
Corporation (1985) 3 SCC 545, Shantistar Builders Vs. Narayan Khimalal
Totame (1990) 1 SCC 520, P.G. Gupta Vs. State of Gujarat 1995 Supp. (2)
SCC 182, Chameli Singh Vs. State of U.P. (1996) 2 SCC 549, Ahmedabad
Municipal Corporation Vs. Nawab Khan Gulab Khan (1997) 11 SCC 121
& Shiv Sagar Tiwari Vs. Union of India (1997) 1 SCC 444.
W.P.(C) No.6831/2010 Page 3 of 24
4. The respondent MCD in its counter affidavit has stated that none of
the pleadings or documents of the petitioners show any title in the petitioners
to the properties and / or to the land underneath the same; that the documents
filed by the petitioners at best indicate possession of the petitioners of some
part of the locality of Azadpur; that the dimensions of the structures
contained in the said documents do not match with the structures which the
petitioners claim to be in their possession. It is further stated that the land
under occupation of the petitioners is government land earmarked as “park”
in the approved layout plan of the colony and with a Milk Booth in a corner;
that owing to the occupation of the petitioners, the development of the park
and construction of the Milk Booth has been held up; that the petitioners had
also encroached upon the already existing road, project for widening
whereof is underway; that action aforesaid was taken to retrieve the land
from the possession of the petitioners and while possession of the land, by
demolishing the properties of the petitioners No.2 to 5 had already been
taken, the action against the property of the petitioner No.1 has been held up
owing to the interim order in the present writ petition. It is further pleaded
W.P.(C) No.6831/2010 Page 4 of 24
that even though encroachers are not entitled to any notice but a notice was
duly served on the petitioners and the petitioners had in response thereto
undertaken to remove themselves and it is only upon their failure to abide by
their undertaking that the action of demolition was taken. It is also denied
that the action was taken at the behest of any person(s). With the assistance
of the documents, it is pleaded that the tender for road widening project had
already been floated. It is argued that the said work is held up owing to the
interim order in the present writ petition.
5. The petitioners in their rejoinder have pleaded that most of the roads
in the Azadpur have been declared mixed land use streets; that the
respondent MCD has not prepared any re-development scheme for the
Azadpur urban village as contemplated under the Zonal Development Plan
of Civil Lines; that the development plan of Azadpur village filed by the
respondent MCD along with their counter affidavit is not authentic; that once
the settled possession since the year 1989 or so of the petitioners is not
disputed, the respondent MCD could not have forcibly demolished the
properties. The petitioners have also controverted that their properties were
W.P.(C) No.6831/2010 Page 5 of 24
located over the land earmarked for park and / or for a Milk Booth and / or
land underneath is required for road widening. It is contended that the
properties of the petitioners were constructed over road diagonally opposite
DJB Pump House across the road; that the respondent MCD also in the
notice claimed to have been issued had described the properties of the
petitioners as in front of DJB Pump House; that the tender stated to have
been floated by the respondent MCD were for road improvement and
development of existing roads and not for widening of the roads; directions
are sought for investigation into the illegal demolition of the properties of
the respondents No.2 to 5.
6. The respondent MCD along with its counter affidavit had filed copies
of the notice dated 6th May, 2010 issued to the petitioners informing the
petitioners that they had encroached on government land earmarked for Milk
Booth as per DDA plan and had failed to remove the said encroachment and
directing the petitioners to remove the encroachment. The counsel for the
MCD during the course of hearing on 14th December, 2010 handed over
documents purporting to be letters of the petitioners received in the office of
W.P.(C) No.6831/2010 Page 6 of 24
the respondent MCD in May, 2010 wherein the petitioners had agreed to
remove themselves from the site. The counsel for the petitioners was on that
dated directed to show the said letters to the petitioners; the petitioner No.1
has admitted his signature thereon but the petitioner No.2 had denied his
signatures. Similarly, the petitioner No.5 had also admitted the signatures of
his father on the said documents. However, the petitioner No.5 failed to
comment whether the signature on the said documents were of his father or
not.
7. Though the arguments spanning over several days were heard and
plethora of judgments cited by the counsels for the petitioners but the crux of
the matter is that there is a dispute as to the identity of the land as well as to
the rights if any of the petitioners thereto. While the respondent MCD
contends that the land / property to which the documents filed by the
petitioners pertain is different from the land where the demolition action has
been taken and the land where demolition action has been taken is meant for
park and Milk Booth, the counsel for the petitioners contends that the
documents produced pertain to the same land and the said land is not the
W.P.(C) No.6831/2010 Page 7 of 24
land meant for park and Milk Booth. It may also be mentioned that the
documents purportedly of title to the property relied upon by the petitioners
are not registered documents and as rightly contended by the counsel for the
respondent MCD, at best disclose the possession of the petitioners of the
property to which they pertain.
8. The counsel for the petitioners has contended that once the persons are
in settled possession and are claiming title to the property, the respondent
MCD even if disputes the said title and / or claims title in itself or in the
government, cannot take action for demolition and forcible dispossession
since it is not competent to decide title to the property.
9. The counsel for the petitioners has during the hearing referred to the
following judgments:
(i) Rajeev Malhotra Vs. Union of India 93 (2001) DLT 532 (DB)
paras 15 and 20 on filing of false affidavit and taking liberties
with truth.
W.P.(C) No.6831/2010 Page 8 of 24
(ii) Murray & Co. Vs. Ashok Kumar Newatia (2000) 2 SCC 367 to
contend that filing of false affidavit amounts to criminal
contempt.
(iii) Court on its Own Motion Vs. Kuldeep Kapoor 136 (2007) DLT
28 (DB) where a Division Bench of this Court again held that
tampering of documents amounts to criminal contempt.
(iv) Harijan Kalyan Samiti Regd. Vs. Govt. of NCT of Delhi 167
(2010) DLT 368 on the impact of Delhi Laws (Special
Provisions) Act, 2010.
(v) Village Pul Pehladpur Residents Welfare Association Vs.
Union of India 127 (2006) DLT 313 where in respect of action
against unauthorized colonies, it was held that the government
could not indulge in the practice of pick and choose.
(vi) Sahara India (Firm), Lucknow Vs. Commissioner of Income
Tax, Central-I (2008) 14 SCC 151 on the aspect of natural
justice.
(vii) Zenit Metaplast Pvt. Ltd. Vs. State of Maharashtra (2009) 10
SCC 388 on the proposition that every action of the State
should not only be fair, legitimate and above board but should
be without any affection or aversion.
(viii) DDA Vs. Nehru Place Hotels 1983 RLR 662 to contend that
lay out plans have no statutory force.
W.P.(C) No.6831/2010 Page 9 of 24
(ix) Rame Gowda Vs. M. Varadappa Naidu AIR 2004 SC 4609 to
contend that even a trespasser in settled possession is entitled to
protect his possession.
(x) Municipal Corporation, Ludhiana Vs. Inderjit Singh (2008)
13 SCC 506 to contend that action of demolition without notice
is illegal.
(xi) Municipal Corporation Vs. Bhagwan Dass 1974 RLR 588 to
contend that when MCD alleges encroachment on the road, the
burden is on the MCD to prove the same.
10. The counsel for the respondent MCD has contended that the
petitioners are not poor persons and the properties were not being used for
residential purposes but for commercial purposes. He has relied on:
(i) Rajinder Kakkar Vs. Delhi Development Authority 54 (1994)
DLT 484 to contend that encroacher is not entitled to any
protection.
(ii) Sewa Hotel and Resorts Vs. DDA 124 (2005) DLT 421 to
contend that only those who have a right in law are entitled to
notice.
(iii) B.R. Anand Vs. DDA 125 (2005) DLT 116 to contend that
encroachers are not entitled to any notice.
W.P.(C) No.6831/2010 Page 10 of 24
(iv) Mandal Revenue Officer Vs. Goundla Venkaiah I (2010) SLT
533 to contend that even if ration card etc. are acquired at the
address, the same is of no consequence.
11. The counsel for the petitioners in rejoinder has contended that the
basis of the present petition is the NCT of Delhi Laws (Special Provisions)
Second Act, 2009. It is contended that the same is a beneficial legislation
and ought to be widely interpreted. It is further contended that no aks shijra
has been filed by the respondent MCD. It is contended that road widening
for which demolition has been carried out is a Scheme of the MLA and not a
Central Government Scheme. With reference to revenue records, it is
contended that the same also show the land to be built up. Reliance is placed
on:
(i) Regal Traders Pvt. Ltd. Vs. Lt. Governor of Delhi AIR 1990 Delhi
282 on para 19 to contend that onus is on respondent MCD to show
the encroachment.
(ii) Municipal Corporation Vs. Bhagwan Dass (supra) on as to what is to
be considered public street.
(iii) Chairman, Indore Vikas Pradhikaran Vs. Pure Industrial Coke &
Chemicals Ltd. 2007 8 SCC 705 (para 20).
W.P.(C) No.6831/2010 Page 11 of 24
12. To say the least, the above would demonstrates that the petitioners,
whether to prolong the hearing or for some other / purpose have bombarded
this Court with judgments, a large number of which are not found to be of
any relevance to the matter in controversy. As aforesaid, the properties of the
petitioners No.2 to 5 already stand demolished. However, the property of
petitioner No.1 has only been partly demolished. The petitioners have in the
writ petition sought a declaration of the action of the respondent MCD of
demolition on 27th September, 2010 to be illegal and arbitrary and to restrain
the respondents from taking further demolition action and have further
sought a direction against the respondent MCD to restore the properties to
the original position/condition.
13. The petitioners in the present case have not placed any registered
document of title of the properties with sufficient identification of the
location to which they pertain, for this Court to on the basis thereof reach a
conclusion that the properties which have been demolished vested in the
petitioners. It is only on reaching such a conclusion that this Court can grant
the relief of declaration and may be of restoration of status quo ante and / or
W.P.(C) No.6831/2010 Page 12 of 24
of compensation as claimed. As aforesaid, there is serious dispute between
the parties as to the location; without examination and cross examination of
witnesses and further investigation, it cannot be said whether the documents
annexed by the petitioners to this petition relate to the location where
demolition action has been taken. I entertain serious doubts as to the
entitlement of the petitioners to a declaration and / or to the relief of status
quo ante and / or of compensation, if found to be encroachers of public land.
14. The Supreme Court in the celebrated case of S.P. Chengalvaraya
Naidu Vs. Jagannath AIR 1994 SC 853 has noted that the process of the
Court is being abused and property grabbers and other unscrupulous persons
from all walks of life find the Court process a convenient lever to retain the
illegal gains indefinitely.
15. I am unable to hold that the petitioners are entitled to the benefit of the
Delhi Laws (Special Provisions) Second Act, 2009. The same protected
only unauthorized colonies, regularization whereof was under consideration
W.P.(C) No.6831/2010 Page 13 of 24
of the Government of India and would not apply to encroachments as alleged
in the present case.
16. Thus the question of granting the relief of declaration or status quo
ante or compensation without being able to return any finding as to the title
of the petitioners does not arise. The recourse to writ remedy for such
declaration is not appropriate. The appropriate fora for the said purpose is a
Civil Court.
17. I have considered whether the property of the petitioner No.1 which
remains to be demolished should be protected for the reason of the same
having existed for long. As aforesaid, the question as to whether the
petitioner No.1 has any right to the land underneath the same as claimed by
him and / or is an encroacher as claimed by the respondent MCD is yet to be
determined. Thus, relief qua this property sought in this writ petition
without adjudication of title and right claimed being possible in these
proceedings, is in the nature of an interim relief. The grant of interim relief
W.P.(C) No.6831/2010 Page 14 of 24
is dependent upon the test of prima facie case, irreparable injury and balance
of convenience.
18. However, of late the courts have added yet another test. The Supreme
Court in Ramniklal N. Bhutta Vs. State of Maharashtra AIR 1997 SC 1236
held as under:
“10. Before parting with this case, we think it necessary to make a few
observations relevant to land acquisition proceedings. Our
country is now launched upon an ambitious programme of all-
round economic advancement to make our economy competitive
in the world market. We are anxious to attract foreign direct
investment to the maximum extent. We propose to compete with
China economically. We wish to attain the pace of progress
achieved by some of the Asian countries, referred to as “Asian
tigers”, e.g., South Korea, Taiwan and Singapore. It is, however,
recognised on all hands that the infrastructure necessary for
sustaining such a pace of progress is woefully lacking in our
country. The means of transportation, power and
communications are in dire need of substantial improvement,
expansion and modernisation. These things very often call for
acquisition of land and that too without any delay. It is, however,
natural that in most of these cases, the persons affected challenge
the acquisition proceedings in courts. These challenges are
generally in the shape of writ petitions filed in High Courts.
Invariably, stay of acquisition is asked for and in some cases,
orders by way of stay or injunction are also made. Whatever may
have been the practices in the past, a time has come where theW.P.(C) No.6831/2010 Page 15 of 24
courts should keep the larger public interest in mind while
exercising their power of granting stay/injunction. The power
under Article 226 is discretionary. It will be exercised only in
furtherance of interests of justice and not merely on the making
out of a legal point. And in the matter of land acquisition for
public purposes, the interests of justice and the public interest
coalesce. They are very often one and the same. Even in a civil
suit, granting of injunction or other similar orders, more
particularly of an interlocutory nature, is equally
discretionary. The courts have to weigh the public interest
vis-à-vis the private interest while exercising the power under
Article 226 indeed any of their discretionary powers. It may
even be open to the High Court to direct, in case it finds
finally that the acquisition was vitiated on account of non-
compliance with some legal requirement that the persons
interested shall also be entitled to a particular amount of damages
to be awarded as a lumpsum or calculated at a certain percentage
of compensation payable. There are many ways of affording
appropriate relief and redressing a wrong; quashing the
acquisition proceedings is not the only mode of redress. To wit, it
is ultimately a matter of balancing the competing interest.
Beyond this, it is neither possible nor advisable to say. We hope
and trust that these considerations will be duly borne in mind
by the courts while dealing with challenges to acquisition
proceedings.”
19. Prior thereto in Shiv Kumar Chadha Vs. Municipal Corporation of
Delhi (1993) 3 SCC 161 also the Supreme Court observed:
“30. It need not be said that primary object of filing a suit
challenging the validity of the order of demolition is to restrainW.P.(C) No.6831/2010 Page 16 of 24
such demolition with the intervention of the Court. In such a suit
the plaintiff is more interested in getting an order of interim
injunction. It has been pointed out repeatedly that a party is
not entitled to an order of injunction as a matter of right or
course. Grant of injunction is within the discretion of the
Court and such discretion is to be exercised in favour of the
plaintiff only if it is proved to the satisfaction of the Court
that unless the defendant is restrained by an order of
injunction, an irreparable loss or damage will be caused to
the plaintiff during the pendency of the suit. The purpose of
temporary injunction is, thus, to maintain the status quo. The
Court grants such relief according to the legal principles – ex
debited justitiae,. Before any such order is passed the Court must
be satisfied that a strong prima facie case has been made out by
the plaintiff including on the question of maintainability of the
suit and the balance of convenience is in his favour and refusal of
injunction would cause irreparable injury to him.
31. Under the changed circumstance with so many cases pending
in Courts, once an interim order of injunction is passed, in
many cases, such interim orders continue for months; if not
for years. At final hearing while vacating such interim orders
of injunction in many cases, it has been discovered that while
protecting the plaintiffs from suffering the alleged injury,
more serious injury has been caused to the defendants due to
continuance of interim orders of injuction without final
hearing. It is a matter of common knowledge that on many
occasions even public interest also suffers in view of such
interim orders of injunction, because persons in whose favour
such orders are passed are interested in perpetuating the
contraventions made by them by delaying the final disposal of
such applications. The Court should be always willing to extend
its hand to protect a citizen who is being wronged or is being
deprived of a property without any authority in law or without
following the procedure which are fundamental and vital in
W.P.(C) No.6831/2010 Page 17 of 24
nature. But at the same time the judicial proceedings cannot be
used to protect or to perpetuate a wrong committed by a person
who approaches the Court.”
20. In between in Mahadeo Savlaram Shelke Vs. Pune Municipal
Corporation (1995) 3 SCC 33 also the Supreme Court observed:
“12. In “Modern Law Review”, Vol 44, 1981 Edition, at page 214,
R.A. Buckley stated that “a plaintiff may still be deprived of
an injunction in such a case on general equitable principles
under which factors such as the public interest may, in an
appropriate case, be relevant. It is of interest to note, in this
connection, that it has not always been regarded as altogether
beyond doubt whether a plaintiff who does thus fail to
substantiate a claim for equitable relief could be awarded
damages”. In “The Law Quarterly Review” Vol 109, at page 432
(at p. 446), A.A.S. Zuckerman under Title “Mareva Injunctions
and Security for Judgment in a Framework of Interlocutory
Remedies” stated that “if the plaintiff is likely to suffer
irreparable or uncompensable damage, no interlocutory
injunction will be granted, then, provided that the plaintiff would
be able to compensate the defendant for any unwarranted restraint
on the defendant’s right pending trial, the balance would tilt in
favour of restraining the defendant pending trial. Where both
sides are exposed to irreparable injury pending trial, the courts
have to strike a just balance”. At page 447, it is stated that “the
court considering an application for an interlocutory
injunction has four factors to consider: first, whether the
plaintiff would suffer irreparable harm if the injunction is denied;
secondly, whether this harm outweighs any irreparable harm that
the defendant would suffer from an injunction; thirdly, theW.P.(C) No.6831/2010 Page 18 of 24
parties’ relative prospects of success on the merits; fourthly, any
public interest involved in the decision. The central objective of
interlocutory injunctions should therefore be seen as reducing the
risk that rights will be irreparably harmed during the inevitable
delay of litigation”.
13. In “Injunctions” by David Bean, 1st Edn, at page 22, it is stated
that “if the plaintiff obtains an interlocutory injunction, but
subsequently the case goes to trial and he fails to obtain a
perpetual order, the defendant will meanwhile have been
restrained unjustly and will be entitled to damages for any loss he
has sustained. The practice has therefore grown up, in almost
every case where interlocutory injunction is to be granted, of
requiring the plaintiff to undertake to pay any damages
subsequently found due to the defendant as compensation if the
injunction cannot be justified at trial. The undertaking may be
required of the plaintiff in appropriate cases in that behalf. In
“Joyce on Injunctions” Vol. 1 in paragraph 177 at page 293, it is
stated “Upon a final judgment dissolving an injunction, a right of
action upon the injunction bond immediately follows, unless the
judgment is superseded. A right to damages on dissolution of the
injunction would arise at the determination of the suit at law”.
14. It would thus be clear that in a suit for perpetual injunction, the
court should enquire on affidavit evidence and other material
placed before the court to find strong prima facie case and
balance of convenience in favour of granting injunction otherwise
irreparable damage or damage would ensue to the plaintiff. The
court should also find whether the plaintiff would adequately be
compensated by damages if injunction is not granted. It is
common experience that injunction normally is asked for and
granted to prevent the public authorities or the respondents to
proceed with execution of or implementing scheme of public
utility or granted contracts for execution thereof. Public interest
is, therefore, one of the material and relevant considerations in
W.P.(C) No.6831/2010 Page 19 of 24
either exercising or refusing to grant ad interim injunction. While
exercising the discretionary power, the court should also adopt
the procedure of calling upon the plaintiff to file a bond to the
satisfaction of the court that in the event of his failing in the suit
to obtain the relief asked for in the plaint, he would adequately
compensate the defendant for the loss ensued due to the order of
injunction granted in favour of the plaintiff. Even otherwise the
court while exercising its equity jurisdiction in granting
injunction has also jurisdiction and power to grant adequate
compensation to mitigate the damages caused to the defendant by
grant of injunction restraining the defendant to proceed with the
execution of the work etc., which is retrained by an order of
injunction made by the court. The pecuniary award of damages is
consequential to the adjudication of the dispute and the result
therein is incidental to the determination of the case by the court.
The pecuniary jurisdiction of the court of first instance should not
impede nor be a bar to award damages beyond it pecuniary
jurisdiction. In this behalf, the grant or refusal of damages is not
founded upon the original cause of action but the /consequences
of the adjudication by the conduct of the parties, the court gets
inherent jurisdiction in doing ex debito justitiae mitigating the
damage suffered by the defendant by the act of the court in
granting injunction restraining the defendant from proceeding
with the action complained of in the suit It is common knowledge
that injunction is invariably sought for in laying the suit in a court
of lowest pecuniary jurisdiction even when the claims are much
larger than the pecuniary jurisdiction of the court of first instance,
may be, for diverse reasons. Therefore, the pecuniary jurisdiction
is not and should not stand an impediment for the court of first
instance in determining damages as the part of the adjudication
and pass a decree in that behalf without relegating the parties to a
further suit for damages. This procedure would act as a check on
abuse of the process of the court and adequately compensate theW.P.(C) No.6831/2010 Page 20 of 24
damages or injury suffered by the defendant by act of court at the
behest of the plaintiff.
15. Public purpose of removing traffic congestion was sought to be
served by acquiring the building for widening the road. By orders
of injunction, for 24 years the public purpose, was delayed. As a
consequence execution of the project has been delayed and the
costs now stand mounted. The courts in the cases where
injunction are to be granted should necessarily consider the effect
on public purpose thereof and also suitably mould the relief. In
the event of the plaintiffs losing the suit ultimately, they should
necessarily bear the consequences, namely, escalation of the cost
or the damages the Corporation suffered on account of injunction
issued by the courts. Appellate court had not adverted to any of
the material aspects of the matter. Therefore, the High Court has
rightly, though for different reasons, dissolved the order of ad
interim injunction. Under these circumstances, in the event of the
suit to be dismissed while disposing of the suit the trial court is
directed to assess the damages and pass a decree for recovering
the same at pro rata against the appellants.”
21. This court also in matters relating even to copyright and patents has
been giving due regards to the element of public interest while dealing with
injunction applications. Reference in this regard may be made to i) The
Chancellor Masters and Scholars of The University of Oxford Vs
Narendera Publishing House 2008 (38) PTC 385 wherein this court
declined the relief of injunction with respect to guide books; ii) judgment of
the Single Judge [148 (2008) DLT 598] and the Division Bench
W.P.(C) No.6831/2010 Page 21 of 24
(MANU/DE/0381/2009) of this Court in F. Hoffmann-La Roche Ltd. and
Anr. Vs. Cipla Ltd. where one of the considerations for declining the
injunction was the high costs of the drugs of the plaintiff and the
comparative low costs of the drugs being marketed in India.
22. The Supreme Court in ONGC Ltd Vs. Saw Pipes Ltd AIR 2003 SC
2629 also held that where loss is caused to the public, there is no measure of
determining the loss. Instances in that case were given of delays in
construction of a bridge or a road which harms the public in general and no
individual municipality or government in particular. The Supreme Court in
such cases thus held insistence on proof of loss to be not proper.
23. Since public project is held up owing to the said property of the
petitioner No.1 and not finding prima facie case in favour of the petitioner
No.1, no relief as sought qua the property of the petitioner No.1 can be
granted.
W.P.(C) No.6831/2010 Page 22 of 24
24. The counsel for the petitioners has been unable to establish that the
petitioners have in any manner been discriminated qua any other person(s)
similarly situated as the petitioners. The photographs produced do not show
that there are 100 other houses in the same line as claimed or that the same
have been allowed to remain.
25. The claims made of right to shelter have to be under the policies
framed in this regard. As aforesaid, the properties were not residential. No
policy for rehabilitation qua non-residential properties has been brought to
my notice.
26. The claims of action having been taken suddenly and without notice
have also been falsified from admission as aforesaid of some of the
petitioners of receipt of notices several months prior to demolition action. I
am satisfied that all the petitioners were aware. Rather the petitioners had
undertaken to remove themselves. The petitioners concealed all these facts
from this Court. The petitioners are not entitled to any relief on this ground
alone.
W.P.(C) No.6831/2010 Page 23 of 24
27. The writ petition is therefore dismissed with liberty however to the
petitioners to approach the Civil Court for declaration of their right(s) if any
to the land.
No order as to costs.
RAJIV SAHAI ENDLAW
(JUDGE)
JULY 14, 2011
„gsr‟
W.P.(C) No.6831/2010 Page 24 of 24