Delhi High Court
Shri Yogender Pal, Prop. Of M/S. Arya ... vs Municipal Corporation Of Delhi And ... on 25 April, 2001
Equivalent citations: 2001VAD(DELHI)25, 92(2001)DLT339, 2001(60)DRJ591
Author: Manmohan Sarin
Bench: Manmohan Sarin
ORDER
Manmohan Sarin. J.
Rule.
1. With the consent of the parties writ petition is taken up for disposal.
2. The petitioner happens to be tenant in respect of the premises No.141/3, Pul Methai Teliwara, Delhi-110006, under respondents 3 to 5, has filed this writ petition. Petitioner assails the report dated 24.11.1999 of the AE(B) SP Zone, MCD, recording interalia that the case had been considered on merits and no action was required in respect of the first floor of the property for unauthorized construction. Petitioner also seeks a writ of mandamus for initiation action for demolition of the unauthorised construction as also action against officials of MCD, who failed to perform and discharge their statutory duties.
Learned counsel for the petitioner does not press prayers vi and vii, by which initiation of contempt proceedings against officials of respondent No. 2 was sought.
3. The facts giving to the extent they are relevant for the disposal of writ petition may be noted:
(i) Petitioner is a tenant under respondents 3 to 5 in respect of shop cum godown premises No.141/3, Pul Mithai, Telewara, Delhi-110006, since 1989. Petitioner alleges that respondents 3 to 5 by carrying out unauthorised constructions damaged the roof of the tenanted premises.
(ii) This led the petitioner to file a suit for perpetual and mandatory injunction bearing No.1064/97 in the court of the Civil Judge titled Yogenderpal Singh and another Vs. MCD. Petitioner sought a decree of permanent injunction against defendants 1 to 3 i.e. respondents 3 to 5 herein from carrying out any construction activities over the roof of the shop/godown in his tenancy.
(iii) Decree of mandatory injunction was also sought to direct the present respondents to demolish the entire unauthorised and illegal construction raised over the roof/godown of the petitioner.
4. Petitioner's case was that unauthorised have damaged the roof and the tenanted premises. The said suit was dismissed by the learned Civil Judge vide his judgment dated 24.11.1999. Learned Civil Judge upheld the preliminary objection to the maintainability of the suit. The court vide its order dated 24.11.1999 held, that the suit was not maintainable in view of the provision of Section 347(E) of the Delhi Municipal Corporation Act.
5. The order of demolition in the instant case had been passed by the MCE and owner of the property had preferred an appeal before the Appellate Tribunal. As per the report filed by the MCD in the civil suit, the case of there being unauthorised construction on the first floor was found to be without merit. MCD had concluded that no action was required. As regards the constructions on the second floor, the matter was still pending and was under consideration before the MCD. Here also an appeal had been preferred before the MCD Appellate Tribunal. In these circumstances, there were efficacious alternate remedies available and could be restored to by the parties. The jurisdiction of the civil court was held to be barred.
6. The petitioner himself was not a party to any of the appel proceedings before the Appellate Tribunal, Yet he chose not to assail the order of dismissal of the suit. He accepted the finding that alternate efficacious remedies were available to the parties. The petitioner has now chosen to assail in this writ petition a report, notice of which had been taken also by the Civil Judge, while disposing of the suit with regard to the authorised construction on the first floor.
7. Learned counsel for the petitioner at this stage urged that the landlord was bent upon getting the tenant evicted illegally form the premises by unauthorised constructions, causing damage to the tenanted premises to as to render it unusable. It would be for the petitioner to avail of civil remedies as available at law or under the Rent Control Act for protection of tenancy rights. In the instant case a specially of constituted tribunal under the Delhi Municipal Corporation Act has disposed of one of appels filed by the owner and the seemed appeal is stated to be pending.
8. Normally writ jurisdiction is not to be permitted to be used for agitating private grievances between land lord and tenant, especially contentious claims of their respective rights and obligations in respect of the tenanted premises. Moreover, in this case the petitioner has not challenged the order of the Civil Judge dismissing the civil suit filed by the petitioner holding that the civil suit was barred.
9. In these circumstances, I am not inclined to entertain the writ petition at the behest of petitioner for grant of the substantive reliefs, as sought. However, I find from the material as available on record that the MCD had earlier booked the construction as unauthorised and even passed a demolition order. In the report dated 24.11.1999, filed in the civil suit, the Assistant Engineer had simply observed that the case was considered on merits and decided that no action was required in the case of first floor. The basis of reason for reaching such a decision or conclusion are not disclosed. In the interest of justice and to satisfy the judicial conscience, I had directed production of records relating to property bearing No.141/3, Pul Mithai, Telewara, Delhi.
10. Record have been perused. Order dated 16.4.1999 has been read. The Zonal Engineer, Mr. Dev Prakash, has passed a detailed order, referring to the old house tax and other records to reach his finding that the construction and alternations made were those for which no special permission under the Municipal bye-laws was required. Reliance has been placed on the old house tax record, where existence of halls has been shown. In addition, it has been noted that installation of shutters or internal changes would not require permission under the building bye-laws and were exempted under bye-law 6.4.1. Thus the case of unauthorised construction on first floor was not accepted.
11. Learned counsel for the petitioner attempted to urge before me that the order was a traversity of justice in as much as the report of the office of Lt. Governor was contrary to the same.
For the reasons already recorded, I have reached the conclusion that the writ petition is not maintainable. The record had been called only to satisfy the judicial conscience as the report submitted to the Civil Court did not disclose any reasons. The Zonal Engineer has given his detailed reasoning for reaching his decision.
The writ petition is accordingly dismissed.