Delhi High Court
Bijender Singh vs North Delhi Municipal Corporation & Ors on 31 July, 2015
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 31st July, 2015
+ W.P.(C) 7234/2015 & CM No.13286/2015 (for directions)
BIJENDER SINGH ..... Petitioner
Through: Mr. R.M. Bagai, Adv.
Versus
NORTH DELHI MUNICIPAL
CORPORATION & ORS ..... Respondents
Through: Ms. Piya Kalra, Adv. for R-1/NrDMC
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
CM No.13287/2015 (for exemption)
1. Allowed, subject to just exceptions.
2. The application is disposed of.
W.P.(C) No.7234/2015
3. This petition is filed seeking mandamus to the respondent No.1 North
Delhi Municipal Corporation (NrDMC) to take action with respect to the
construction, allegedly unauthorized, being carried on by the respondents
No.2 and 3 Jaswant Singh and Devinder Kumar on plot No.10, Gali No.7,
Main Road, Som Bazar (Part-II), village Mukandpur, Delhi.
4. It is the case of the petitioner that the respondent No.2 Jaswant Singh
has sold the said property to the petitioner through a Power of Attorney;
however the respondent No.3 Devinder Kumar, being the brother of the
W.P.(C) No.7234/2015 Page 1 of 8
respondent No.2 Jaswant Singh, has forcibly taken possession of the said
property from the petitioner and now the respondents No.2 and 3 have
commenced construction thereon. It is disclosed that though the petitioner
instituted a suit for recovery of possession under Section 6 of the Specific
Relief Act, 1963 but the same was dismissed and a revision petition
preferred thereagainst is pending in this Court.
5. I have at the outset enquired from the counsel for the petitioner, why
the petitioner in the revision petition aforesaid has not made an application
for interim relief to restrain the respondents no.2&3 from raising
construction on the property.
6. The counsel for the petitioner states that since the respondent no.1
NrDMC is not a party to the revision petition and direction in the revision
petition against the respondent no.1 NrDMC could not be obtained, the
petitioner has filed this petition.
7. What is evident from the aforesaid is that the seeking of mandamus by
the petitioner against the respondent no.1 NrDMC to take action with respect
to the construction on the property aforesaid, in this petition, is not guided
by any desire of the petitioner for the welfare of the city by enforcement of
the Building Bye-laws but owing to the dispute of the petitioner with the
respondents no.2&3 with respect to the rights in the property. The petitioner
admittedly is engaged in a civil litigation with the respondents no.2&3 as to
the title to the property and in first round of which litigation the respondents
no.2&3 have emerged victorious. It is evident that the real motive of the
petitioner in filing this petition is to settle private scores with the
W.P.(C) No.7234/2015 Page 2 of 8
respondents no.2&3, and may be, to compel respondents no.2&3 to settle the
civil dispute aforesaid with the petitioner.
8. Upon the same being put to the counsel for the petitioner, he however
states that the petitioner, notwithstanding the civil dispute, is entitled to
demand performance of the statutory duties from the respondent no.1
NrDMC.
9. Though undoubtedly the respondent no.1 NrDMC is statutorily
obliged to ensure that no construction, save in accordance with law, takes
place within its jurisdiction and to take action with respect to the
unauthorized construction if any but the question for consideration here is
the entitlement of the petitioner to a relief under Article 226 of the
Constitution of India from this Court. Jurisdiction of the High Court under
Article 226 is a discretionary and an equitable jurisdiction.
10. Article 226 of the Constitution of India confers extraordinary
jurisdiction on the High Court to issue high prerogative writs for
enforcement of fundamental rights or for any other purpose. The prerogative
writs are extraordinary remedies intended to be applied in exceptional cases
in which the ordinary legal remedies are not adequate. The Supreme Court in
K.D. Sharma Vs. Steel Authority of India Ltd.(2008) 12 SCC 481 held that
a prerogative remedy is not a matter of course and while exercising
extraordinary power, a Writ Court would certainly bear in mind the conduct
of the party who invokes the jurisdiction of the Court. Prerogative writs are
issued for doing substantial justice. It is therefore of utmost necessity that
the petitioner approaching the Writ Court must come with clean hands.
W.P.(C) No.7234/2015 Page 3 of 8
Similarly in T.K. Rangarajan Vs. Government of Tamil Nadu (2003) 6
SCC 581 it was observed that under Article 226, High Court is empowered
to exercise its extraordinary jurisdiction to meet unprecedented
extraordinary situation having no parallel and that such extraordinary powers
are required to be sparingly used. Where there is an alternative, effective,
efficacious remedy available under the law, the High Court would not
exercise its extraordinary jurisdiction under Article 226. The extraordinary
jurisdiction of the High Court is not a cure for all the maladies which a
litigant may suffer from. Though existence of alternative remedy does not
affect the jurisdiction of the High Court to issue a writ but existence of an
adequate legal remedy is a thing to be taken into consideration in the matter
of granting writ. Article 226 is not meant to supplant the existing remedies at
law but only to supplement them in well recognized situations. The Court
will not always issue a writ simply because it is lawful to do so. Therefore,
even if a petitioner establishes infringement of some legal right, the Court
may still refuse to issue a writ.
11. Jurisdiction under Article 226 is not meant for declaring the private
rights of the parties. Serious questions about title and possession of land
cannot be dealt with by the Writ Court and a regular suit is the appropriate
remedy for deciding property disputes. Reference if any required in this
respect can be made to Shalini Shyam Shetty Vs. Rajendra Shankar Patil
(2010) 8 SCC 329 where the Supreme Court also noticed the growing trend
amongst several High Courts to entertain writ petitions in cases of pure
property disputes and deprecated the practice.
W.P.(C) No.7234/2015 Page 4 of 8
12. I am of the opinion that though a writ petition is undoubtedly
maintainable to enforce Building Bye-Laws and to seek mandamus against
Municipal and other Statutory Bodies, if found to be not performing their
functions in this regard, but only where the petitioner before the Court does
not have any dispute with the person indulging in violation of Building Bye-
Laws, unauthorized construction, encroachment etc. In such cases, though
the remedy of filing a suit restraining the person indulging in illegality from
proceedings with the same affecting the rights of the petitioner of a clean
and orderly neighbourhood would also be available but it would not be
proper to require such person to pay Court fees and to indulge in civil
litigation. However where the purpose in enforcing the Building-Bye Laws
is not to secure a clean, aesthetic and orderly neighbourhood but out of
vengeance for the person indulging in illegality, in my view, the Writ Court
would not be justified in allowing its extraordinary jurisdiction to be invoked
for such private purposes and more so where the petitioner has already
indulged in a civil proceeding with the person committing an illegality and
in which civil proceeding he can very well seek enforcement of Building
Bye-Laws also.
13. The Supreme Court in Mohan Pandey Vs. Smt. Usha Rani
Rajgaria (1992) 4 SCC 61, finding that a dispute was between two private
persons with respect to an immovable property and in which respect a suit
was already pending, held that the filing of the writ petition could not be
justified on the ground of certain complaints to the authorities having been
made and the authorities having not acted thereon. It was held that even if
the grievance was of unjustified initiation of criminal proceedings at the
W.P.(C) No.7234/2015 Page 5 of 8
behest of another, the same was also not a ground for invoking the writ
jurisdiction and the remedy under the general law including the Criminal
Procedure Code is to be invoked. It was held that the High Court cannot
allow the constitutional jurisdiction to be used for deciding disputes for
which remedies under the general law, civil or criminal, are available. It was
further held that the writ remedy, is not intended to replace the ordinary
remedies by way of a suit or application available to a litigant, being a
special and extraordinary remedy not to be exercised casually or lightly.
14. This Court in Hari Chand Vs. Government of NCT of Delhi
MANU/DE/8077/2006 held that a writ remedy cannot be permitted to be
invoked to settle private scores.
15. The writ petition in the present case, as aforesaid has been filed by the
petitioner to settle private scores with the respondents no.2&3. It is not as if
the petitioner could not have sought the relief of restraining construction on
the property in the pending civil proceedings. However, the petitioner,
perhaps apprehensive that the first Court having held the petitioner to have
not been able to establish his rights in the property, would not find a prima
facie case in favour of the petitioner and consequently decline the relief, has
chosen to file this petition. It is for this reason that an independent litigation
under Article 226 of the Constitution is sought to be initiated. I am of the
view that if in such circumstances the Court entertains the petition, the Court
may be playing into the hands of the petitioner by allowing the writ
jurisdiction under Article 226 to be used for the purposes of achieving
private gains and not as a public law remedy.
W.P.(C) No.7234/2015 Page 6 of 8
16. I have in Surender Malhotra Vs. Agricultural Products Market
Committee MANU/DE/2926/2011 similarly held that the public law remedy
of Article 226 cannot be allowed to be used to arm twist and for the bona
fide dispute if any, the remedy is by way of civil proceedings. The High
Court of Punjab and Haryana also, in Shyam Lal Thukral Vs. State of
Punjab MANU/PH/4195/2013, has held that invoking writ remedy to settle
personal score is misuse of the process of law.
17. The matter is put beyond any pale of doubt from the dicta of this
Court in Mrs. Amrit Surjit Singh Vs. Union of India AIR 2001 Delhi 110
where, finding that the motive of the petitioners was not to get the
unauthorised construction demolished or rectified but to demand a pond of
flesh on account of construction made by the respondents, it was held that
where the petition is filed with the sole motive of harassing or for extortion
of money but not to get unauthorised construction rectified, the petition has
to be dismissed.
18. The allegations in the petition, of the respondent no.1 NrDMC,
notwithstanding the petitioner having called upon them to take action with
respect to the alleged unauthorized construction, having not taken any action
with respect thereto, do constitute an allegation of infraction of the Delhi
Municipal Corporation Act, 1957 by the respondent no.1 NrDMC. It is also
true that this Court in a number of writ petitions, not only filed as Public
Interest Litigation (PIL) but otherwise also, has on such allegations been
issuing mandamus / directions to the Municipalities. However those are the
cases where either the petitioner being a resident of the locality is affected
by the unauthorized construction or being the owner / resident of an
W.P.(C) No.7234/2015 Page 7 of 8
adjoining property is suffering because of the unauthorized construction and
where the petitioner otherwise has no score to settle or dispute with the
person carrying out such unauthorized construction. In such cases, where
there is no civil lis pending between the parties, it is felt that the petitioner
should not be directed to institute a civil proceeding for restraining such
unauthorized construction and is entitled to invoke the jurisdiction under
Article 226. However, where the petitioner is found to have already indulged
in civil litigation with the person who is alleged to be carrying out
unauthorized construction and / or has a personal axe to grind, in my view
Article 226 cannot be permitted to be invoked.
19. There is thus no merit in the petition. Dismissed.
No costs.
RAJIV SAHAI ENDLAW, J.
JULY 31, 2015 'pp'..
(corrected and released on 16.9.2015) W.P.(C) No.7234/2015 Page 8 of 8