JUDGMENT
A.K. Sikri, J.
1. One Mr. Kailash Gahlot, a resident of Vasant
Kunj filed Petition under Article 226 of the
Constitution of India in this Court being CWP No. 3100
of 2001 which was treated as Public Interest
litigation. In this Petition Mr. Gahlot
stated that in Vasant Kunj a commercial complex which
was situated adjacent to the residential block being
Pocket C-6 and C-7 was under construction. The complex
and the residential block shared a common boundary wall
as per the sanctioned lay out/development Plan
prepared/passed by the Delhi Development Authority
(hereinafter referred to as DDA, for short). But
contrary to the Development Plan the main boundary wall
supporting the residential block and commercial complex
i.e. the local shopping centre, had been illegally
demolished/broken by the builder/promoter of the
commercial complex. As a result of this, it was
further alleged, that it had created a security risk to
the residents of the residential colony. After issuing
notice to Municipal Corporation of Delhi (hereinafter
referred to as MCD, for short) and Delhi Development
Authority (hereinafter referred to as DDA, for short)
who were arrayed as respondents and after hearing the
parties this Writ Petitions was disposed of by Order
dated 10th July, 2001 by a Division Bench of this court
directing as under:-
“Counsel for respondent No. 1 submits that
according to her instructions, the
boundary wall in question has already
been repaired. This assertion is,
however, denied by the petitioner.
According to the petitioner, the boundary
wall has not been repaired.
We direct that the boundary wall in
question be repaired properly, if not
already repaired, within two weeks.
This petition is disposed of with these
observations.
A copy of this Order be given dusty to
counsel for respondent No. 1 to ensure
compliance.”
2. However, the matter has not rested here. This
Order itself has given rise to further litigation which
is prompted by Super Restaurant Pvt. Ltd. (petitioner
in CWP No. 6425/2001) who had purchased a plot in
auction at local shopping centre. The Super Restaurant
has filed on CM. 11004/2001 in CWP No. 3100/2001 seeking
recalling of afore-mentioned Order dated 10th July,
201 under Order 1 Rule 10 of the Code of Civil
Procedure for impleadment, if necessary, as a party to
the Writ Petition.
3. M/s. Super Restaurant has also filed a
substantive Writ Petition being 6425 of 2001.
4. Factual background narrated by M/s. Super
Restaurant in the Writ Petition runs thus: It had
purchased in auction a plot at the local shopping
centre, Section C-6 and 7, Vasant Kunj in December 1996
at a cost of RS. 3,85,50,000/-. The purpose was to
construct a Guest House, for which the DDA has
specifically auctioned the plot in question. The
possession of this plot was handed over to M/s. Super
Restaurant by the DDA on September 1, 2000 and on
September 4, 2000 a purported Lease Deed was also
executed in its favor by the DDA.
5. In February 2001 M/s. Super Restaurant
noticed that the Residents Welfare Association
(hereinafter referred to as RWA, for short) started
constructing illegal structure on the western side of
the local shopping centre purported to be a Guard Room
in contravention of the sanctioned lay out Plan of the
local shopping centre. When various representations
made by M/s. Super Restaurant did not yield any
result, it filed a Suit for permanent and mandatory
injunction in the Court of Civil Judge on 4th April,
2001. In fact two days before i.e. on 2nd April, 2001
the RWA had converted the said Guard room into a
temple. On 9th April, 2001 Ms. Madhu Jain, Civil Judge
passed an injunction Order restraining RWA from raising
any further illegal construction. At this juncture
when the said Suit was pending, Mr. Kailash Gahlot filed
CWP No. 3100 of 2001, the purpose of which was to
scuttle the proceedings before the Civil Judge in the
case pending between M/s. Super Restaurant and RWA. In
view of the order dated 10th July, 2001 passed in CWP
No. 3100 of 2001 since the Suit of M/s. Super Restaurant
was rendered infructuous it withdrew the Suit on 28th
September, 2001 with liberty to file such appropriate
proceedings as necessary and in these circumstances
M/s. Super Restaurant filed Review Application being
CM.11004/2001 in CWP No. 3100 of 2001 as well as CWP
No. 6425 of 2001.
6. Stated in brief the case of M/s. Super
Restaurant is that as per the lay out Plan of the local
shopping centre as well as residential complex there is
no wall which has been constructed. According to it,
the DDA had represented that the said boundary wall
towards the eastern side of the local shopping centre
was a temporary structure which was constructed at the
time when the flats of the residential complex were
under construction and assured M/s. Super Restaurant, at
the time of auction, that the said boundary wall would
be removed. It is on this representation of the DDA
that M/s. Super Restaurant participated in auction and
bid for the plot in question at a hefty price. In
these circumstances, the prayer made in the Writ
Petition reads as follows:-
1. The order dated 10.7.2001 be recalled and
be set aside and respondents be directed
to restore the status quo ante as
existing before passing of the order
dt. 10.7.2001 passed by this Hon’ble
Court.
2. The order dated 10.7.2001 in the
alternative be held not binding on the
applicant nor the respondent No. 1 for
implementing by the respondent 1 and/or
2 of the lay out plan of the Local
Shopping Centre of Pocket 6 & 7,
Sector-C, Vasant Kunj, New Delhi.
3. The applicant be made a party to the
present writ petition for the purposes of
the reliefs claimed in the present
application and also for prayer of the
applicant for dismissal of the writ
petition.
4. The present writ be dismissed with heavy
costs being a gross abuse of the process
of the court.
5. Ex-parte and pendente lite orders in
terms of prayers 1 and 2 be also granted.
7. At the time of arguments, Mr. Valmiki Mehta,
learned senior counsel appearing for M/s. Super
Restaurant submitted that Order dated 10th July, 2001
passed in CWP No. 3100 of 2001 needed to be recalled as
it was obtained without impleading M/s. Super Restaurant
as a party and by suppressing the material facts.
Thus, according to the learned counsel, it clearly
tantamounted to obtaining the Order by fraud and
therefore was to be treated as nullity. In support of
this submission, the learned counsel pressed into
service the judgment of the Supreme Court in the case
of S.P. Chengalvaraya Naidu (dead) by Lrs. v.
Jagannath (Dead) by Lrs. and Ors. reported in (1994)
1 SCC 1 submitting that it was categorically held
therein:-
“Fraud avoid all judicial acts,
ecclesiastical or temporal” observed
Chief Justice Edward Coke of England
about three centuries ago. It is the
settled proposition of law that a
judgment or decree obtaining by playing
fraud on the court is a nullity and non
est in the eyes of law. Such a
judgment/decree – by the first court or
by the highest court – has to be treated
as a nullity by every court, whether
superior or inferior. It can be
challenged in any court even in
collateral proceedings.”
8. Learned counsel also referred to another
judgment of the Supreme court in the case of Budhia
Swain and Ors. v. Gopinath Deb and Ors.
reported in (1994) 4 SCC 396 in support of his
submission that a Court had the power to recall an
Order earlier made by it if:-
(i) The proceedings culminating in the order
suffer from inherent lack of jurisdiction
which is patent.
(ii) Fraud or collusion have been used to obtain
the judgment;
(iii) There has been a mistake by the court
prejudicing a party; or
(iv) a judgment has been rendered in ignorance of
the fact that a necessary party had not been
served at all or had died and the estate was
not represented.
9. His submissions was that since fraud or
collusion had been practiced to obtain the Order dated
10th July, 2001 in the instant case inasmuch as even
DDA did not come forward with correct factual position,
the Order warranted to be recalled.
10. On Merits, submission of Mr. Valmiki Mehta, was
that since there was no such wall shown in the lay out
on Zonal Plan the prayer made by Mr. Kailash Gahlot in
CWP No. 3100 of 2001 for restoration of the said wall
which was a temporary structure and was rightly removed
by the DDA, was totally misconceived. His submission
was that the entire purpose for which M/.s Super
Restaurant had purchased the plot i.e. for Guest House
would be defeated as the space left between the said
wall and the structure of the M/s. Super Restaurant
was not sufficient for cars to come in the Guest House
of M/s. Super Restaurant as there was no scope for
manoeuvrability of the vehicles coming into the Guest
House. His submission was that even if for ensuring
safety of the residents of the residential block the
existence of boundary wall was necessary, it could be
shifted by a few yards which would serve the interest
of both, namely, shopping complex as well as
residential blocks. For this purpose he referred to
the judgment of this Court in the case of Vasant Kunj
Residents Welfare Association and Anr. v. The
Lt. Governor of Delhi and Ors. where the solution to the problem was found
by the Court in the following manner:-
“Pleading have been completed. Learned
counsel for the respondent/DDA relying on
the additional affidavit submitted that
the opening that had been left are
strictly in accordance with the lay out
plan of Vasant Kunj and as per the
requirement of the master plan. it is
further submitted that at the time of
allotment of various shops the existence
of these approaches to the shopping
complex was made known to the licensees
and the allottees. Therefore, if any
attempt was now made to close or shut
down the openings, it would adversely
affect the interest of the allottees and
licensees having shops and establishments
in the shopping complex. It would also
be a breach of the understanding and
conditions given to the allottees at the
time of auction of the shopping complex.
I have perused the lay out plan, as
filed. The openings are shown there.
Hence there is considerable merit in the
submission of the respondent/DDA, as
noted above. The petitioner,
accordingly, would not be entitled to a
mandamus requiring the respondent/DDA to
construct a boundary wall and close the
openings. However, one of the possible
solutions which commends to the Court
feasibility of which may be considered
and examined is the installation of gates
in some of the main openings.
Petitioner, if so advised, may approach
the authorities with the proposal of
installation of gates, provided the same
are property manned, round the clock, and
do not block ingress and egress through
the said gates. This would, of course,
entail expenses being met by residents
and agreement/understanding being reached
on this account between the petitioners,
residents, shopkeepers/allottees and the
concerned authorities.
11. The contention of Mr. Kailash Gahlot and RWA on
the other hand, was that existence of boundary wall was
necessary to ensure the security of the residents of
Section C-6 and C-7, Vasant Kunj, New Delhi. The
submission was that boundary wall was in existence for
long, which was constructed by DDA itself and there was
no reason to remove the same. Such boundary wall were
in existence in every such locality throughout Delhi
and it was not peculiar to this residential colony. In
support of this submission Mr. Gahlot placed reliance
upon the case .
12. Further submission was that even in the case
of Vasant Kunj Residential Welfare Association (supra)
necessity for existence of such a boundary wall was
recognised. They highlighted the problem of law and
order in Delhi and submitted that security risks like
robbery, burglary, kidnapping, extortion, etc. being
rampant, it was in public interest that boundary wall
in question remained. The learned counsel also
referred to the site plan and the lay out plan of the
area and submitted that the boundary wall was shown
therein. It was also submitted that M/s. Super
Restaurant had legal right to have the boundary wall
shifted. Thus, according to Mr. Gahlot, three was no
need to recall order dated 10th July, 2001 passed in
CWP No. 3100 of 2001 and rather the Writ Petition field
by M/s. Super Restaurant warranted dismissal.
13. In order to determine the respective rights of
these two parties and appreciate the controversy it
would be appropriate to know the stand of the DDA.
For, it has brought to fore the factual and legal
nuances of the case and cleared the gloss created by
both the private parties aiming the advance their own
personal interests Mr. Ajay Verma and Ms. Gita Mittal
appeared on behalf of the DDA and clarified, with
reference to the lay out plan of the area, that there
was no provision for boundary wall in question as
regards the Local Shopping Centre as well as housing
Sector C-6 and C-7, Vasant Kunj, New Delhi. However, it
was emphasised that before taking up the construction
of the Local Shopping Centre in Sector C-6 and 7, a
stone masonry wall had been constructed in order to
protect the area from encroachment. After the
construction of Local Shopping Centre, the matter was
reconsidered and it was felt necessary to have the
boundary wall segregating the Local Shopping Centre
from the residential complex for security of both and
particularly residents of the residential complex. It
was further submitted that in so far as M/s. Super
Restaurant is concerned, no such assurance was given
for removal of this boundary wall. It was also
clarified that as per the lay out plan in the Local
Shopping Centre, a particular area was specifically
earmarked for parking. This was the practice in all
such Local Shopping Centres and visitors to the Local
Shopping centre were expected to park their vehicles in
the said parking area. M/s. Super Restaurant had no
right to claim more parking area and particularly when
one side of its structure faces residential complex.
14. On the other hand, it was contended that even
the RWA had no legal right to claim the existence of a
wall at a particular place inasmuch as there was no
such boundary wall shown in the lay out plan of the
residential complex and in any case the area in
question where the boundary wall at present exists did
not form part of the residential complex and it was DDA
land of course, because of the security, it was
decided by the DDA to retain the boundary wall but it
was the prerogative of DDA to consider whether this
wall should exist. It was also submitted that in so
far as the so called ‘guard room’ converted into a
temple as constructed by RWA is concerned the same was
illegal.
15. Position as explained by the DDA clarifies
the ground realities sufficiently, rounds off the edges
and provides the solution which balances the competing
interest of the parties. It is clear that in so far
as M/s. Super Restaurant is concerned it has no such
right to claim that the boundary wall be removed or
shifted from the place where it exists at present. In
fact necessity of having such a wall for security
reasons was not seriously disputed before us. The
prayers 1 and 2 made by it in CWP No. 6425 of 2001 are
therefore not maintainable when there is no such
provisions in the lay out plan as claimed by it.
16. On the other hand, even the RWA or Mr. Kailash
Gahlot have no right to claim the retention of the wall
at a particular place. The area in question does not
belong to the RWA. CWP No. 3100 of 2001 was filed by
Mr. Kailash Gahlot on the premise that the boundary wall
was being demolished illegally which was necessary for
the security of the residents. Since it was a Public
Interest Litigation and since the boundary wall for
security was required, the Court passed an Order dated
10th July, 2001. However, at that time the question of
retention of the boundary wall at the existing place
alone was not gone into at all. Order sheet in CWP
No. 3100 of 2001 reveals that when the notice was issued
and the learned counsel for DDA appeared she informed
the Court that the matter was under consideration and a
decision was likely to be taken soon for retaining the
boundary wall. In these circumstances the Order dated
10th July, 2001 was passed for repairing the boundary
wall. The likely dispute between the Local Shopping
Centre an the RWA did not crop up or was visualised.
The matter was also not considered with reference to
lay out plans and the right of the RWA to have the
boundary wall at a particular place. Therefore, we are
of the opinion that Order dated 10th July, 2001 which
was passed in the aforesaid circumstances needs to be
recalled. We Order accordingly. CM.110004 stands
disposed of.
17. While doing so we put the matter back to DDA
for appropriate decision. We may notice that during
the pendency of these cases attempt was made to resolve
the dispute amicably and parties were directed to
consider this aspect. For this purpose it was directed
that Vice Chairman, DDA should hold a meeting with the
parties. However, we were told that since RWA was not
willing for shifting of the boundary wall, the matter
could not be amicably resolved.
18. In these circumstances, the two Writ Petitions
are disposed of with the following directions to the
DDA:-
1. To consider the matter afresh and take a
decision as to whether boundary wall is to be retained
at the existing place or there is a need to shift the
same to other place.
2. Till the time such a decision is taken the
boundary wall shall be maintained as it is. However,
in case the decision is taken to shift the boundary
wall, the present boundary wall shall be demolished
only after the construction of the new boundary wall.
3. The Vice Chairman, DDA shall also take
appropriate decision about the retention/removal of the
guard room/temple and if it is found to be illegal, it
would be permissible for the DDA to remove the same.
19. The Vice-Chairman, DDA would take a decision
of the aforesaid aspects within two months from the
date of receipt of copy of the Order. Before taking a
decision, the Vice Chairman, DDA shall give due regard
to the respective stands of both the parties in these
two Writ Petitions.