{"id":215645,"date":"2002-08-05T00:00:00","date_gmt":"2002-08-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/super-restaurant-p-ltd-and-shri-vs-delhi-development-authority-on-5-august-2002"},"modified":"2018-05-23T07:10:27","modified_gmt":"2018-05-23T01:40:27","slug":"super-restaurant-p-ltd-and-shri-vs-delhi-development-authority-on-5-august-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/super-restaurant-p-ltd-and-shri-vs-delhi-development-authority-on-5-august-2002","title":{"rendered":"Super Restaurant P. Ltd. And Shri … vs Delhi Development Authority on 5 August, 2002"},"content":{"rendered":"
Delhi High Court<\/div>\n
Super Restaurant P. Ltd. And Shri … vs Delhi Development Authority on 5 August, 2002<\/div>\n
Author: A Sikri<\/div>\n
Bench: S Sinha, A Sikri<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
 A.K. Sikri, J. <\/p>\n
 1. One Mr. Kailash Gahlot, a resident of Vasant
\nKunj filed Petition under Article 226 of the
\nConstitution of India in this Court being CWP No. 3100
\nof 2001 which was treated as Public Interest
\nlitigation. In this Petition Mr. Gahlot
\nstated that in Vasant Kunj a commercial complex which
\nwas situated adjacent to the residential block being
\nPocket C-6 and C-7 was under construction. The complex
\nand the residential block shared a common boundary wall
\nas per the sanctioned lay out\/development Plan
\nprepared\/passed by the Delhi Development Authority
\n(hereinafter referred to as DDA, for short). But
\ncontrary to the Development Plan the main boundary wall
\nsupporting the residential block and commercial complex
\ni.e. the local shopping centre, had been illegally
\ndemolished\/broken by the builder\/promoter of the
\ncommercial complex. As a result of this, it was
\nfurther alleged, that it had created a security risk to
\nthe residents of the residential colony. After issuing
\nnotice to Municipal Corporation of Delhi (hereinafter
\nreferred to as MCD, for short) and Delhi Development
\nAuthority (hereinafter referred to as DDA, for short)
\nwho were arrayed as respondents and after hearing the
\nparties this Writ Petitions was disposed of by Order
\ndated 10th July, 2001 by a Division Bench of this court
\ndirecting as under:-\n<\/p>\n
  “Counsel for respondent No. 1 submits that
\naccording to her instructions, the
\nboundary wall in question has already
\nbeen repaired. This assertion is,
\nhowever, denied by the petitioner.\n<\/p>\n
According to the petitioner, the boundary
\nwall has not been repaired.\n<\/p>\n
 We direct that the boundary wall in
\nquestion be repaired properly, if not
\nalready repaired, within two weeks.\n<\/p>\n
 This petition is disposed of with these
\nobservations.\n<\/p>\n
 A copy of this Order be given dusty to
\ncounsel for respondent No. 1 to ensure
\ncompliance.”\n<\/p>\n
 2. However, the matter has not rested here. This
\nOrder itself has given rise to further litigation which
\nis prompted by Super Restaurant Pvt. Ltd. (petitioner
\nin CWP No. 6425\/2001) who had purchased a plot in
\nauction at local shopping centre. The Super Restaurant
\nhas filed on CM. 11004\/2001 in CWP No. 3100\/2001 seeking
\nrecalling of afore-mentioned Order dated 10th July,
\n201 under Order 1 Rule 10 of the Code of Civil
\nProcedure for impleadment, if necessary, as a party to
\nthe Writ Petition.\n<\/p>\n
 3. M\/s. Super Restaurant has also filed a
\nsubstantive Writ Petition being 6425 of 2001.\n<\/p>\n
 4. Factual background narrated by M\/s. Super
\nRestaurant in the Writ Petition runs thus: It had
\npurchased in auction a plot at the local shopping
\ncentre, Section C-6 and 7, Vasant Kunj in December 1996
\nat a cost of RS. 3,85,50,000\/-. The purpose was to
\nconstruct a Guest House, for which the DDA has
\nspecifically auctioned the plot in question. The
\npossession of this plot was handed over to M\/s. Super
\nRestaurant by the DDA on September 1, 2000 and on
\nSeptember 4, 2000 a purported Lease Deed was also
\nexecuted in its favor by the DDA.\n<\/p>\n
 5. In February 2001 M\/s. Super Restaurant
\nnoticed that the Residents Welfare Association
\n(hereinafter referred to as RWA, for short) started
\nconstructing illegal structure on the western side of
\nthe local shopping centre purported to be a Guard Room
\nin contravention of the sanctioned lay out Plan of the
\nlocal shopping centre. When various representations
\nmade by M\/s. Super Restaurant did not yield any
\nresult, it filed a Suit for permanent and mandatory
\ninjunction in the Court of Civil Judge on 4th April,
\n2001. In fact two days before i.e. on 2nd April, 2001
\nthe RWA had converted the said Guard room into a
\ntemple. On 9th April, 2001 Ms. Madhu Jain, Civil Judge
\npassed an injunction Order restraining RWA from raising
\nany further illegal construction. At this juncture
\nwhen the said Suit was pending, Mr. Kailash Gahlot filed
\nCWP No. 3100 of 2001, the purpose of which was to
\nscuttle the proceedings before the Civil Judge in the
\ncase pending between M\/s. Super Restaurant and RWA. In
\nview of the order dated 10th July, 2001 passed in CWP
\nNo. 3100 of 2001 since the Suit of M\/s. Super Restaurant
\nwas rendered infructuous it withdrew the Suit on 28th
\nSeptember, 2001 with liberty to file such appropriate
\nproceedings as necessary and in these circumstances
\nM\/s. Super Restaurant filed Review Application being
\nCM.11004\/2001 in CWP No. 3100 of 2001 as well as CWP
\nNo. 6425 of 2001.\n<\/p>\n
 6. Stated in brief the case of M\/s. Super
\nRestaurant is that as per the lay out Plan of the local
\nshopping centre as well as residential complex there is
\nno wall which has been constructed. According to it,
\nthe DDA had represented that the said boundary wall
\ntowards the eastern side of the local shopping centre
\nwas a temporary structure which was constructed at the
\ntime when the flats of the residential complex were
\nunder construction and assured M\/s. Super Restaurant, at
\nthe time of auction, that the said boundary wall would
\nbe removed. It is on this representation of the DDA
\nthat M\/s. Super Restaurant participated in auction and
\nbid for the plot in question at a hefty price. In
\nthese circumstances, the prayer made in the Writ
\nPetition reads as follows:-\n<\/p>\n
 1. The order dated 10.7.2001 be recalled and
\nbe set aside and respondents be directed
\nto restore the status quo ante as
\nexisting before passing of the order
\ndt. 10.7.2001 passed by this Hon’ble
\nCourt.\n<\/p>\n
 2. The order dated 10.7.2001 in the
\nalternative be held not binding on the
\napplicant nor the respondent No. 1 for
\nimplementing by the respondent 1 and\/or
\n2 of the lay out plan of the Local
\nShopping Centre of Pocket 6 & 7,
\nSector-C, Vasant Kunj, New Delhi.\n<\/p>\n
 3. The applicant be made a party to the
\npresent writ petition for the purposes of
\nthe reliefs claimed in the present
\napplication and also for prayer of the
\napplicant for dismissal of the writ
\npetition.\n<\/p>\n
 4. The present writ be dismissed with heavy
\ncosts being a gross abuse of the process
\nof the court.\n<\/p>\n
 5. Ex-parte and pendente lite orders in
\nterms of prayers 1 and 2 be also granted.\n<\/p>\n
 7. At the time of arguments, Mr. Valmiki Mehta,
\nlearned senior counsel appearing for M\/s. Super
\nRestaurant submitted that Order dated 10th July, 2001
\npassed in CWP No. 3100 of 2001 needed to be recalled as
\nit was obtained without impleading M\/s. Super Restaurant
\nas a party and by suppressing the material facts.
\nThus, according to the learned counsel, it clearly
\ntantamounted to obtaining the Order by fraud and
\ntherefore was to be treated as nullity. In support of
\nthis submission, the learned counsel pressed into
\nservice the judgment of the Supreme Court in the case
\nof S.P. Chengalvaraya Naidu (dead) by Lrs. v.
\nJagannath (Dead) by Lrs. and Ors. reported in (1994)
\n1 SCC 1 submitting that it was categorically held
\ntherein:-\n<\/p>\n
  “Fraud avoid all judicial acts,
\necclesiastical or temporal” observed
\nChief Justice Edward Coke of England
\nabout three centuries ago. It is the
\nsettled proposition of law that a
\njudgment or decree obtaining by playing
\nfraud on the court is a nullity and non
\nest in the eyes of law. Such a
\njudgment\/decree – by the first court or
\nby the highest court – has to be treated
\nas a nullity by every court, whether
\nsuperior or inferior. It can be
\nchallenged in any court even in
\ncollateral proceedings.”\n<\/p>\n
 8. Learned counsel also referred to another
\njudgment of the Supreme court in the case of Budhia
\nSwain and Ors. v. Gopinath Deb and Ors.<\/a>
\nreported in (1994) 4 SCC 396 in support of his
\nsubmission that a Court had the power to recall an
\nOrder earlier made by it if:-\n<\/p>\n
 (i) The proceedings culminating in the order
\nsuffer from inherent lack of jurisdiction
\nwhich is patent.\n<\/p>\n
 (ii) Fraud or collusion have been used to obtain
\nthe judgment;\n<\/p>\n
 (iii) There has been a mistake by the court
\nprejudicing a party; or   <\/p>\n
 (iv) a judgment has been rendered in ignorance of
\nthe fact that a necessary party had not been
\nserved at all or had died and the estate was
\nnot represented.\n<\/p>\n
 9. His submissions was that since fraud or
\ncollusion had been practiced to obtain the Order dated
\n10th July, 2001 in the instant case inasmuch as even
\nDDA did not come forward with correct factual position,
\nthe Order warranted to be recalled.\n<\/p>\n
 10. On Merits, submission of Mr. Valmiki Mehta, was
\nthat since there was no such wall shown in the lay out
\non Zonal Plan the prayer made by Mr. Kailash Gahlot in
\nCWP No. 3100 of 2001 for restoration of the said wall
\nwhich was a temporary structure and was rightly removed
\nby the DDA, was totally misconceived. His submission
\nwas that the entire purpose for which M\/.s Super
\nRestaurant had purchased the plot i.e. for Guest House
\nwould be defeated as the space left between the said
\nwall and the structure of the M\/s. Super Restaurant
\nwas not sufficient for cars to come in the Guest House
\nof M\/s. Super Restaurant as there was no scope for
\nmanoeuvrability of the vehicles coming into the Guest
\nHouse. His submission was that even if for ensuring
\nsafety of the residents of the residential block the
\nexistence of boundary wall was necessary, it could be
\nshifted by a few yards which would serve the interest
\nof both, namely, shopping complex as well as
\nresidential blocks. For this purpose he referred to
\nthe judgment of this Court in the case of Vasant Kunj
\nResidents Welfare Association and Anr. v. The
\nLt. Governor of Delhi and Ors.    where the solution to the problem was found
\nby the Court in the following manner:-\n<\/p>\n
 “Pleading have been completed. Learned
\ncounsel for the respondent\/DDA relying on
\nthe additional affidavit submitted that
\nthe opening that had been left are
\nstrictly in accordance with the lay out
\nplan of Vasant Kunj and as per the
\nrequirement of the master plan. it is
\nfurther submitted that at the time of
\nallotment of various shops the existence
\nof these approaches to the shopping
\ncomplex was made known to the licensees
\nand the allottees. Therefore, if any
\nattempt was now made to close or shut
\ndown the openings, it would adversely
\naffect the interest of the allottees and
\nlicensees having shops and establishments
\nin the shopping complex. It would also
\nbe a breach of the understanding and
\nconditions given to the allottees at the
\ntime of auction of the shopping complex.\n<\/p>\n
 I have perused the lay out plan, as
\nfiled. The openings are shown there.
\nHence there is considerable merit in the
\nsubmission of the respondent\/DDA, as
\nnoted above. The petitioner,
\naccordingly, would not be entitled to a
\nmandamus requiring the respondent\/DDA to
\nconstruct a boundary wall and close the
\nopenings. However, one of the possible
\nsolutions which commends to the Court
\nfeasibility of which may be considered
\nand examined is the installation of gates
\nin some of the main openings.\n<\/p>\n
Petitioner, if so advised, may approach
\nthe authorities with the proposal of
\ninstallation of gates, provided the same
\nare property manned, round the clock, and
\ndo not block ingress and egress through
\nthe said gates. This would, of course,
\nentail expenses being met by residents
\nand agreement\/understanding being reached
\non this account between the petitioners,
\nresidents, shopkeepers\/allottees and the
\nconcerned authorities.\n<\/p>\n
 11. The contention of Mr. Kailash Gahlot and RWA on
\nthe other hand, was that existence of boundary wall was
\nnecessary to ensure the security of the residents of
\nSection C-6 and C-7, Vasant Kunj, New Delhi. The
\nsubmission was that boundary wall was in existence for
\nlong, which was constructed by DDA itself and there was
\nno reason to remove the same. Such boundary wall were
\nin existence in every such locality throughout Delhi
\nand it was not peculiar to this residential colony. In
\nsupport of this submission Mr. Gahlot placed reliance
\nupon the case .\n<\/p>\n
 12. Further submission was that even in the case
\nof Vasant Kunj Residential Welfare Association (supra)
\nnecessity for existence of such a boundary wall was
\nrecognised. They highlighted the problem of law and
\norder in Delhi and submitted that security risks like
\nrobbery, burglary, kidnapping, extortion, etc. being
\nrampant, it was in public interest that boundary wall
\nin question remained. The learned counsel also
\nreferred to the site plan and the lay out plan of the
\narea and submitted that the boundary wall was shown
\ntherein. It was also submitted that M\/s. Super
\nRestaurant had legal right to have the boundary wall
\nshifted. Thus, according to Mr. Gahlot, three was no
\nneed to recall order dated 10th July, 2001 passed in
\nCWP No. 3100 of 2001 and rather the Writ Petition field
\nby M\/s. Super Restaurant warranted dismissal.\n<\/p>\n
 13. In order to determine the respective rights of
\nthese two parties and appreciate the controversy it
\nwould be appropriate to know the stand of the DDA.
\nFor, it has brought to fore the factual and legal
\nnuances of the case and cleared the gloss created by
\nboth the private parties aiming the advance their own
\npersonal interests Mr. Ajay Verma and Ms. Gita Mittal
\nappeared on behalf of the DDA and clarified, with
\nreference to the lay out plan of the area, that there
\nwas no provision for boundary wall in question as
\nregards the Local Shopping Centre as well as housing
\nSector C-6 and C-7, Vasant Kunj, New Delhi. However, it
\nwas emphasised that before taking up the construction
\nof the Local Shopping Centre in Sector C-6 and 7, a
\nstone masonry wall had been constructed in order to
\nprotect the area from encroachment. After the
\nconstruction of Local Shopping Centre, the matter was
\nreconsidered and it was felt necessary to have the
\nboundary wall segregating the Local Shopping Centre
\nfrom the residential complex for security of both and
\nparticularly residents of the residential complex. It
\nwas further submitted that in so far as M\/s. Super
\nRestaurant is concerned, no such assurance was given
\nfor removal of this boundary wall. It was also
\nclarified that as per the lay out plan in the Local
\nShopping Centre, a particular area was specifically
\nearmarked for parking. This was the practice in all
\nsuch Local Shopping Centres and visitors to the Local
\nShopping centre were expected to park their vehicles in
\nthe said parking area. M\/s. Super Restaurant had no
\nright to claim more parking area and particularly when
\none side of its structure faces residential complex.\n<\/p>\n
 14. On the other hand, it was contended that even
\nthe RWA had no legal right to claim the existence of a
\nwall at a particular place inasmuch as there was no
\nsuch boundary wall shown in the lay out plan of the
\nresidential complex and in any case the area in
\nquestion where the boundary wall at present exists did
\nnot form part of the residential complex and it was DDA
\nland of course, because of the security, it was
\ndecided by the DDA to retain the boundary wall but it
\nwas the prerogative of DDA to consider whether this
\nwall should exist. It was also submitted that in so
\nfar as the so called ‘guard room’ converted into a
\ntemple as constructed by RWA is concerned the same was
\nillegal.\n<\/p>\n
 15. Position as explained by the DDA clarifies
\nthe ground realities sufficiently, rounds off the edges
\nand provides the solution which balances the competing
\ninterest of the parties. It is clear that in so far
\nas M\/s. Super Restaurant is concerned it has no such
\nright to claim that the boundary wall be removed or
\nshifted from the place where it exists at present. In
\nfact necessity of having such a wall for security
\nreasons was not seriously disputed before us. The
\nprayers 1 and 2 made by it in CWP No. 6425 of 2001 are
\ntherefore not maintainable when there is no such
\nprovisions in the lay out plan as claimed by it.\n<\/p>\n
 16. On the other hand, even the RWA or Mr. Kailash
\nGahlot have no right to claim the retention of the wall
\nat a particular place. The area in question does not
\nbelong to the RWA. CWP No. 3100 of 2001 was filed by
\nMr. Kailash Gahlot on the premise that the boundary wall
\nwas being demolished illegally which was necessary for
\nthe security of the residents. Since it was a Public
\nInterest Litigation and since the boundary wall for
\nsecurity was required, the Court passed an Order dated
\n10th July, 2001. However, at that time the question of
\nretention of the boundary wall at the existing place
\nalone was not gone into at all. Order sheet in CWP
\nNo. 3100 of 2001 reveals that when the notice was issued
\nand the learned counsel for DDA appeared she informed
\nthe Court that the matter was under consideration and a
\ndecision was likely to be taken soon for retaining the
\nboundary wall. In these circumstances the Order dated
\n10th July, 2001 was passed for repairing the boundary
\nwall. The likely dispute between the Local Shopping
\nCentre an the RWA did not crop up or was visualised.
\nThe matter was also not considered with reference to
\nlay out plans and the right of the RWA to have the
\nboundary wall at a particular place. Therefore, we are
\nof the opinion that Order dated 10th July, 2001 which
\nwas passed in the aforesaid circumstances needs to be
\nrecalled. We Order accordingly. CM.110004 stands
\ndisposed of.\n<\/p>\n
 17. While doing so we put the matter back to DDA
\nfor appropriate decision. We may notice that during
\nthe pendency of these cases attempt was made to resolve
\nthe dispute amicably and parties were directed to
\nconsider this aspect. For this purpose it was directed
\nthat Vice Chairman, DDA should hold a meeting with the
\nparties. However, we were told that since RWA was not
\nwilling for shifting of the boundary wall, the matter
\ncould not be amicably resolved.\n<\/p>\n
 18. In these circumstances, the two Writ Petitions
\nare disposed of with the following directions to the
\nDDA:-\n<\/p>\n
 1. To consider the matter afresh and take a
\ndecision as to whether boundary wall is to be retained
\nat the existing place or there is a need to shift the
\nsame to other place.\n<\/p>\n
 2. Till the time such a decision is taken the
\nboundary wall shall be maintained as it is. However,
\nin case the decision is taken to shift the boundary
\nwall, the present boundary wall shall be demolished
\nonly after the construction of the new boundary wall.\n<\/p>\n
 3. The Vice Chairman, DDA shall also take
\nappropriate decision about the retention\/removal of the
\nguard room\/temple and if it is found to be illegal, it
\nwould be permissible for the DDA to remove the same.\n<\/p>\n
 19. The Vice-Chairman, DDA would take a decision
\nof the aforesaid aspects within two months from the
\ndate of receipt of copy of the Order. Before taking a
\ndecision, the Vice Chairman, DDA shall give due regard
\nto the respective stands of both the parties in these
\ntwo Writ Petitions.<\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Super Restaurant P. Ltd. And Shri … vs Delhi Development Authority on 5 August, 2002 Author: A Sikri Bench: S Sinha, A Sikri 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-215645","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nSuper Restaurant P. Ltd. 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