* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 9th September, 2011.
+ W.P.(C) 2875/2003
% PREM KUMAR & ORS. ..... Petitioners
Through: Ms. Nandni Sahni, Adv.
Versus
LT. GOVERNOR, NCT OF DELHI & ORS .... Respondents
Through: Mr. Sanjay Kumar Pathak, Adv. for
R-1 & 6 GNCTD.
Ms. Shobhana Takiar, Advocate for
R-2 & 3.
Mr. Ravinder Agarwal, Adv. for R-5.
Mr. Pankaj Batra, Adv.
AND
+ W.P.(C) 24759-65/2005
% SMT. KRISHNA BHALLA & ORS. ..... Petitioners
Through: Ms. Nandni Sahni, Adv.
Versus
DDA & ANR ..... Respondents
Through: Mr. Rajiv Bansal, Adv. for DDA.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may Not necessary
be allowed to see the judgment?
W.P.(C) No.2875/2003 & W.P.(C) No.24759-65/2005 Page 1 of 9
2. To be referred to the reporter or not? Not necessary
3. Whether the judgment should be reported Not necessary
in the Digest?
RAJIV SAHAI ENDLAW, J.
1. W.P.(C) No.2875/2003 was filed impugning the order dated 7 th April,
2003 of the respondent DDA of demolition and sealing of the properties of
the 12 petitioners in Village-Mahipalpur, Delhi. The respondent DDA had
exercised such jurisdiction under Section 30(1) and Section 31A of the Delhi
Development Act, 1957 claiming the properties of the petitioners to be
falling in Development Area 176 of DDA. It was however the claim of the
petitioners that their properties fall on Khasra Nos.723/2, 733/2 and 734/2 in
Village-Mahipalpur and Village-Mahipalpur does not fall in Development
Area 176 and thus respondent DDA had no jurisdiction to issue such orders.
2. The Commissioner (Land Management), DDA has in the impugned
order held that Development Area has no relation with the revenue estate
and since the properties of the petitioners fell in Development Area 176,
DDA was empowered to exercise powers with respect thereto. It was further
held that a part of Village-Mahipalpur fell in the said Development Area and
W.P.(C) No.2875/2003 & W.P.(C) No.24759-65/2005 Page 2 of 9
the properties of the petitioners fell in the said part and hence DDA was/is
entitled to exercise powers with respect thereto.
3. It is not in dispute that so far as the order of sealing of the properties is
concerned, the Supreme Court in M.C. Mehta Vs. Union of India AIR 2006
SC 1325, reaffirming the Full Bench of this Court in Bajaj Departmental
Store Vs. MCD AIR 2002 Del. 520 held that DDA does not have the power
of sealing on account of misuser. Thus the challenge is concerned with
order of demolition only and to the order of sealing only if on account of
unauthorized construction or unauthorized development. In fact the
impugned order dated 7th April, 2003 came to be made in pursuance to the
order dated 23rd September, 2002 in Civil Writ Petition No.6041/2002
earlier preferred by the petitioners, remanding the matter to the DDA for
disposal after hearing the petitioners.
4. It is not in dispute that the order of the DDA impugned in this petition
is appealable before the Appellate Tribunal. The said fact was within the
knowledge of the petitioners also, as appears from the very first order dated
30th April, 2003 in W.P.(C) No.2875/2003. It was however the contention of
W.P.(C) No.2875/2003 & W.P.(C) No.24759-65/2005 Page 3 of 9
the petitioners on that date that their challenge to the order dated 7 th April,
2003 was confined only to the plea that their properties were not situated in
Development Area 176 and they were not pressing any other ground against
the order dated 7th April, 2003. Notice to show cause was issued limited to
the aforesaid argument.
5. Pleadings have been completed. The counsel for the respondent DDA
has at the outset invited attention to the order dated 14 th January, 2011 when
the counsel for the petitioners has taken time to take instructions whether the
petitioners are willing to avail of the remedy of appeal.
6. The counsel for the petitioners today, on the basis of various
documents on record has argued that the respondent DDA has failed to
satisfy this Court that the properties of the petitioners are situated in
Development Area 176. It is contended that certain other persons with
respect to whose properties, also purportedly in the aforesaid area, similar
order was made, had approached the Appellate Tribunal and which appeals
were also allowed holding that there is nothing to show that the area was a
Development Area.
W.P.(C) No.2875/2003 & W.P.(C) No.24759-65/2005 Page 4 of 9
7. Per contra, the counsels for the respondent DDA have contended that
it was only after hearing on 14th January, 2011 that the petitioners had
sought time to decide whether to prefer an appeal and now on change of
roster the matter is being re-argued. They have also controverted that the
petitioners are similarly placed as the persons whose appeals were allowed
by the Tribunal. The counsels for the respondent DDA refer to various
documents to show that the properties of the petitioners are in fact a part of
Development Area.
8. Mr. Ajay Verma, Adv. also a Standing Counsel for DDA and who
happens to be present in court also informs that there are several other
litigations of village-Mahipalpur and orders with respect to several
properties in the said area have also been passed by the Monitoring
Committee appointed by the Supreme Court and by the Division Bench of
this Court, also proceeding on the premise that the said area is a
Development Area of the DDA.
9. After considering the rival contentions, I am of the opinion that it
cannot be said that there is any unambiguous material before this Court on
W.P.(C) No.2875/2003 & W.P.(C) No.24759-65/2005 Page 5 of 9
the basis whereof it can be said whether the properties of the petitioners are
in a Development Area or not. The matter requires detailed investigation
and in the face of alternative remedy where the said exercise can be
undertaken being available, need is not felt to entertain the petition.
10. The counsel for the petitioners has contended that since the petitions
have remained pending for the last 8 years, this Court may adjudicate the
controversy.
11. It is apparent from the order dated 30th April, 2003 that the petitioners
took a calculated risk. Merely because a notice to show cause was issued,
does not compel this Court to entertain the petition. In the light of what has
transpired above, no case for bypassing the alternative remedy provided is
made out. If the petitioners, on the date of filing of petitions were not
entitled to maintain the petition for the reason of availability of alternative
remedy, merely because they have been successful and in keeping the same
pending in this Court for 8 years would not vest any right in the petitioners
to have the petition entertained by this Court.
W.P.(C) No.2875/2003 & W.P.(C) No.24759-65/2005 Page 6 of 9
12. The counsel for the petitioners seeks extension of interim protection
which the petitioners have enjoyed till now, to enable the petitioners to avail
of the alternative remedy. It is further stated that the petitioners be also
relieved of their statement supra of not pressing any other challenge to the
order dated 7th April, 2003.
13. The counsels for the respondent DDA oppose the aforesaid request.
14. In my view the petitioners having given up the other challenge if any
to the order dated 7th April, 2003 and having confined the challenge to the
order only on the aspect of the properties being not falling in Development
Area cannot now be permitted to revive the other grounds of challenge if
any. As aforesaid, the objection as to the maintainability of the petitions was
considered on the very threshold and the petitioners cannot be permitted to
approbate and reprobate. However since nevertheless the petitions remained
pending in this Court, it is deemed appropriate to extend the protection
enjoyed by the petitioners till now, to enable the petitioners to avail the
alternative remedy.
W.P.(C) No.2875/2003 & W.P.(C) No.24759-65/2005 Page 7 of 9
15. The counsels state that the position in W.P.(C) No.24759-65/2005 is
the same.
16. The counsel for the petitioners at this stage states that applications for
substitution of legal heirs are pending in W.P.(C) No.2875/2003.
17. The counsels for the respondents have been heard on the said
applications. The delay in filing the applications for substitution is
condoned and the substitution is permitted.
18. In view of the aforesaid, the petitions are dismissed as not
maintainable for the reason of the alternative remedy of appeal to the
Tribunal being available to the petitioners and with liberty to avail the
alternative remedy. Since notice to show cause was issued and the petitions
have remained pending in this Court, it is further directed that subject to the
appeal being preferred within four weeks of today, the same shall be
entertained without objection on the plea of limitation. It is further directed
that till the disposal of the applications for interim relief and/or of the
appeal, the interim protection which the petitioners have enjoyed in this
W.P.(C) No.2875/2003 & W.P.(C) No.24759-65/2005 Page 8 of 9
petition shall continue, subject to the petitioners not making any changes
whatsoever in the properties and not transferring, encumbering or parting
with possession thereof. It is clarified that any observation made herein
would not prejudice the case of any of the parties before the Appellate
Tribunal. The matter having already remained pending for long, the
Appellate Tribunal is requested to dispose of the same expeditiously.
Copy of this order be given Dasti.
RAJIV SAHAI ENDLAW
(JUDGE)
SEPTEMBER 09, 2011
bs
W.P.(C) No.2875/2003 & W.P.(C) No.24759-65/2005 Page 9 of 9