Delhi High Court
Sohan Lall Hardwari Lall vs Mcd And Ors. on 26 September, 2002
Author: Sanjay Kishan Kaul
Bench: Sanjay Kishan Kaul
JUDGMENT Sanjay Kishan Kaul, J.
1. The petitioner has filed this writ petition impugning the notification dated 15.1.1976 issued by respondent No.1 corporation declaring certain streets mentioned therein as public streets. The notification has been issued in exercise of powers conferred under Section 316 of the Delhi Municipal Corporation Act. 1957 (for short the Act).
2. The petitioner is also aggrieved by the subsequent notice dated 19.2.1976 issued to the petitioner calling upon the petitioner to remove the pucca shops/chabutras/khokhas in the chowk of the Katra Asharfi, Chandni Chowk, Delhi-110006 since they encroached upon the public land after declaration of the Katras as public streets.
3. A reference has been made to the judgment of this court in Kallo Mal Gopal Chand v. The Commissioner, MCD dealing with the same notification in question. The learned Single Judge of this court held that the provisions under Section 316 of the Act have to be strictly construed and requirements which are precedent to declaration of private streets to be public streets have to be complied with before such declaration can be legally notified. It was held that there is an implied prohibition of the unilateral act of the Commissioner in declaring the private streets as public streets without the express consent of majority of the owners and the impugned notification declaring Katra Pyare Lal, Chandni Chowk, being the Katra in question in the said judgment, a public street was declared as null and void.
4. In view of the aforesaid position learned counsel for the petitioner contended that the matter in issue is no more res integra and the present petition is also liable to be allowed in view of the notification having been already quashed. Learned counsel also referred to the fact that in the first paragraph of the judgment it was referred that the judgment in question was a common order which should govern disposal of CWPs 261/1976 to 267/1976 as they raised a common question of fact and law and that inadvertently the present petition was not clubbed with the said petition.
5. Learned counsel for the respondent on the other hand sought to contend that the present petition is different in view of the fact that it has been filed by a tenant in the property and not by the owner as in the case of Kallo Mal Gopal Chand's case (supra). This aspect is specially urged in view of the fact that rights referred to under Section 315 and 316 of the Act would be available for the benefit only of the owner. It would be relevant to reproduce Section 315 and 316 of the Act as also Section 2(37) which defines an owner:-
"315. Power of Commissioner to order work to be carried out or to carry it out himself in default.-
(1) If any private street or part thereof is not levelled, paved, metalled, flagged, channelled, sewered, drained, conserved or lighted to the satisfaction of Commissioner, he may by notice require the owners of such street or part and the owners of the lands and buildings fronting or abutting on such street or part to carry out any work which in his opinion may be necessary, and within such times as may be specified in such notice.
(2) If such work is not carried out within the time specified in the notice, the Commissioner may, if he thinks fit, execute it and the expenses incurred shall be paid by the owners referred to in Sub-section (1) in such proportion as may be determined by the Commissioner and shall be recoverable from them as an arrear of tax under this Act."
316. Right of owners to require streets to be declared public. - If any street has been levelled, paved, metalled, flagged, channelled, sewered, drained, conserved and lighted under the provisions of Section 315, the Commissioner may, and on the requisition of a majority of the owners referred to Sub-section (1) of that section shall, declare such a street to be a public street and thereupon the street shall vest in the Corporation."
6. Section 2 which defines 'owner' is also reproduced as under:-
"2. Definitions. - In this Act, unless the context otherwise requires,-
(37) "owner" includes a person who for the time being is receiving or is entitled to receive, the rent of any land or building whether on his own account or on account of himself and others or as an agent, trustee, guardian or receiver fro any other person or who should so receive the rent or be entitled to receive it if the land or building or part thereof were let to a tenant and also includes-
(a) xxx
(b) xxx
7. Learned counsel for the petitioner submits that under Section 315 of the Act the Commissioner can require the owner to do the needful in terms of the said sub-section by giving a notice to the owners. The expression used is "may and it is not mandatory. Under Sub-section 2 of Section 315 the consequence of the owner not carrying out such work in terms of the notice would be that the Commissioner may execute the said work and the same 'shall' be paid by the owners referred to in Sub-section 1. The definition of an owner under Section 2(37) includes a person who is receiving or is entitled to receive rent of any land or building where on his own account or on the account of himself and others. In terms of Section 316 if any street has been redone up under the provisions of Section 315 the Commissioner 'may' and on the requisition of the majority of the owners referred to in Sub-section 1 of Section 315 'shall' declare such street to be a public street. A reading of the aforesaid provision makes it clear that the consequence of the owner not doing the needful in terms of Section 315(1) is that the Commissioner may get the work executed itself and the expenses shall be paid by the owner. In case the needful is so done by the corporation under Section 315, the Commissioner 'may' declare such street to be a public street but in case requisition is made by a majority of the owners it shall declare such a street to be a public street. Thus the Commissioner is only bound to do so on a requisition being made by a majority of the owners.
8. The aforesaid position has been accepted in the judgment of Kallo Mal's case (supra) where it has been held that the requisition of a majority of the owners is the basis of the jurisdiction to declare a private street to be a public street and the provisions of Section 315 of the Act have been strictly construed.
9. In so far as the contention of learned counsel for the respondent that the present case is different, the records of the other connected writ petitions mentioned in the judgment of Kallo Mal's case (supra) were called for and perused. All the writ petitions referred to are of tenants and thus there is no difference between those cases and the present case.
10. Learned counsel for the petitioner also referred to the judgment of the Supreme Court in Gadde Venkateswara Rao v. Government of Andhra Pradesh and Ors. where in para 8 while dealing with the rights of a party to approach the court under Article 226 of the Constitution of India it has bee observed as under:-
"..... A personal right need not be in respect of a proprietary interest:
it can also relate to an interest of a trustee. That apart, in exceptional cases as the expression "ordinarily" indicates, a person who has been prejudicially affected by an act or omission of an authority can file a writ even though he has no proprietary or even fiduciary interest in the subject-matter thereof. The appellant has certainly been prejudice by the said order. The petition under Article 226 of the Constitution at his instance is, therefore, maintainable."
11. Learned counsel for the petitioner thus states that the petitioner has a right to approach this court under Article 226 of the Constitution of India since he is prejudiced by the order.
12. I am of the considered view that in view of the discussion aforesaid the matter in fact is no more res integra in view of the judgment of the learned Single Judge of this Court in Kallo Mal's case(supra). The only reason seeking to distinguish the said judgment as advanced by learned counsel for the respondent was that the said case was dealing with the land lord while the present one was dealing with tenant. However, on verification it was found that in respect of other writ petitions for which a common order was passed in terms of the said judgment were in fact petitions of tenants. Thus the petitioner is identically situated as those persons and will be fully governed by the judgment in Kallo Mal Gopal Chand's case(supra).
13. In view of the aforesaid the present writ petition is also liable to be allowed on the same terms as in Kallo Mal Gopal chand's case(supra) and the impugned notification dated 15.1.1976 is quashed to the extent that it declares Katra Asharfi, Chandni Chowk a public street.
Parties are left to bear their own costs.