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Kanwar SaIn Chib Vs. Municipal Corporation of Delhi and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtDelhi High Court
Decided On
Case NumberCivil Writ Nos. 1037, 1048, 1049 and 1051 of 1976
Judge
Reported inAIR1977Delhi139
ActsConstitution of India - Article 226
AppellantKanwar SaIn Chib
RespondentMunicipal Corporation of Delhi and ors.
Appellant Advocate D.K. Kapur and; D.P. Sharma, Advs
Respondent Advocate R.B. Datar and ; R.M. Lal, Advs.
Excerpt:
.....extend the building at the first floor level or otherwise earmarked for the common use of the shop owners as well as the flat owners as indeed for the general public. the owners of the flats had at some stage laid claim to the land being leased to them but were unsuccessful. the petitioners admittedly have no title to the property and have, thereforee, no locus standi to challenge either the competence of the corporation to lease out the property or to assail the validity of such leases, this contention must, thereforee, fail. this contention must, thereforee, fail. this contention is clearly belied by a reference to the lease deed which is admittedly quiet as to the land in dispute. if the pipes required any repair it would be in the mutual interest of the flat owners and the shop..........extend the building at the first floor level or otherwise earmarked for the common use of the shop owners as well as the flat owners as indeed for the general public. it, however, appears that in course of time the shop-keepers by and large, made illegal encroachment on this piece of land and with a view to regularise the position and in the process earn premium, the corporation, to whom the property or its maintenance was transferred, leased the different portions of the land to the shop owners to the extent it abutted on the shop area concerned, pursuant to which most of the shop owners covered the area leaving, however, space commensurate with the width of the staircase leading to the flats. the additional structures are planned in such a way that the path to the staircases is.....
Judgment:
ORDER

1. By these petitions under Arts. 226/227 of the Constitution of India the petitioners, who are owners of different flats on the first floor of Central Market, Lajpat Nagar, New Delhi, challenge the act of the Municipal Corporation of Delhi (for short, the Corporation) in leasing out certain land abutting on the shops on the ground floor of the market to the owners of the shops, the constructions put up by the owners of the shops on the land and the further construction sought to be put up thereon pursuant to the lease.

2. The petitions were filed in the following circumstances. Central Market, Lajpat Nagar, New Delhi, comprises of double storeyed Buildings with shops on the ground floor and residential flats on the first floor and the market is planned in such a way that the frontage of the flats and some of the shops are behind each other. The only entrance to the flats are through staircases on the backside of the flats be apparently part of the rehabilitation pool constituted under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1954, (for short, the Compensation Act) and the flats and shops were sold to different persons who were entitled to it by the, Ministry of Rehabilitation along with the lease of the land on which the structures stand. It appears that there is a piece of land 19 ft. wide abutting on the shops between the shop area and the medalled road, which was at some stage proposed either to be leased to the owners of the flats so that they could extend the building at the first floor level or otherwise earmarked for the common use of the shop owners as well as the flat owners as indeed for the general public. It, however, appears that in course of time the shop-keepers by and large, made illegal encroachment on this piece of land and with a view to regularise the position and in the process earn premium, the Corporation, to whom the property or its maintenance was transferred, leased the different portions of the land to the shop owners to the extent it abutted on the shop area concerned, pursuant to which most of the shop owners covered the area leaving, however, space commensurate with the width of the staircase leading to the flats. The additional structures are planned in such a way that the path to the staircases is covered on both the sides and above. The height of the structures is said to be below the level of the window on the first floor immediately above the shops. The owners of the flats had at some stage laid claim to the land being leased to them but were unsuccessful. Their protest against the proposed leasing of the land to the owners of the shops, as indeed the coverage of the area by them did not fructify either and that is how the flat owners have come to this Court seeking to quash the lease and to restrain the shop owners from putting up any structure and, where the building was in progress from completing the same.

3. The petitions were opposed, both on behalf of the Corporation and the individual shop owners, primarily on the ground that the petitioners had no locus standi to, challenge the action of the Corporation or of the shop owners in that they had no right interest in or in relation to the land in dispute and no title to the s me.

4. The first ground attack the validity of the leases and the construction is based on the contention that under the provisions of the Compensation Act the property vested in the Central Govt.; that the title to the property was never transferred to the Corporation, which was merely empowered to administer the property; and that the Corporation was, thereforee, not competent to lease out the pieces of land to the shop owners. It is true that the property was initially part of the Rehabilitation Pool constituted under the Compensation Act and vested in the Central Government It is equally true that the pieces of land have been leased out to the shop owners by the Corporation. The petitioners are, however, not concerned with the question if the Corporation is entitled to pass any valid title to the shop owners or not. The petitioners admittedly have no title to the property and have, thereforee, no locus standi to challenge either the competence of the Corporation to lease out the property or to assail the validity of such leases, This contention must, thereforee, fail.

5. It was next urged that the Ministry of Rehabilitation had assured the flat owners that the land in dispute would be leased at the appropriate time to the owners of the flats or be left for being used by the said owners, as indeed others, as common land for parking of vehicles and for the benefit of their children and that the authorities were, thereforee, estopped from taking any course which may be inconsistent with the aforesaid assurance. This contention is equally unsustainable. It is true that in the course of correspondence a suggestion was made at some, stage that the land may be left for the common utilisation of the flat owners and others and a proposal was also made at some stage that the request of the flat owners for the land being leased out to them may be sympathetically considered. It is equally true, and there is enough indication from the material on record, that the Ministry of Rehabilitation was quite sympathetic to the claim of flat owners to the land being left for being utilised by them for various purposes or being leased out to them. It is nevertheless difficult to, sustain this contention. It was not disputed that no final decision had been taken at any stage by the Ministry of Rehabilitation to earmark this land for the benefit of the flat owners or to lease it out to the individual flat owners. It was not the case of the petitioners that pursuant to any assurance or proposal they or some of them had acted to their prejudice. That being so, the mere sympathetic approach of the authorities or the thinking on the question in the Ministry could not mature into either any right or form basis of any estoppel. This contention must, thereforee, fail.

6. It was then urged that, in any event, land in dispute was appurtenant to the area held by the flat owners and, thereforee, formed part of the property transferred to them including the land that was leased to them. This contention is clearly belied by a reference to the lease deed which is admittedly quiet as to the land in dispute.

7. It was next urged that, in any event, the lease of the disputed land to the shop owners, the construction put up by them thereon and the construction proposed by them, would violate the petitioner's right to easement in that the impugned actions would adversely affect the petitioner's right of passage, air and light. It was further urged that, inasmuch as the drain pipes of the first floor passed through the land in dispute, the leasing of and the construction on the land would constitute a constant source of nuisance for the petitioners and may prejudicially affect their interests and that the impugned actions would make the maintenance of the pipes not only difficult but costlier. It was, however, not disputed that the land had been leased out to the shop owners in such a way that a passage commensurate with the width of' the staircase leading to the flats has been left out although covered from the top and the sides by the construction that has been carried out. It was also not disputed that the maximum height of the construction is below the level of the rear windows of the flats. It was also not disputed that the drain pipes of the first floor already passed through the land on which the shops originally stand. It is, thereforee, difficult to accept the contention that the leasing out of the land and the construction thereon in any way affects any right of easement of the petitioners either with regard to the air, passage or light. There may, however, be some justification for the petitioners to contend that, in the first instance, the passage to the staircase has been covered from the sides and the top and secondly, that the water pipes connecting the first floor would now be covered by the construction Put up by the shop owners. None of these, however, constitute an infraction of any legal right of the petitioners so long as the right of passage remains intact. The fact that some of the pipes would now be covered by the construction is also of no legal consequence in- as the sewer pipes of the first floor already passed through the space which was originally allotted by the Ministry of Rehabilitation to the shop owners, the construction having been made in such a way. The coverage of the area on which the water pipes are laid would also. be of no consequence because it was pointed out on behalf of the Corporation that under the Delhi Municipal Corporation Act the sewer, soil silage and other pipes are the property of the Corporation irrespective of whether they passed through private property and the Corporation, thereforee could have free access to the area for the purpose of such maintenance as may be necessary. If the pipes required any repair it would be in the mutual interest of the flat owners and the shop owners that they are repaired and if the shop owners refuse to allow access to the flat owners for the purpose of repair in spite of the power of the Corporation to intervene such an action would be at the risk of the shop owners themselves, for, if there is any thing wrong with the pipes it is the shop owners who would be adversely affected by it and not necessarily the flat owners, This contention must, thereforee, fail.

8. The real grievance of the petitioners, however has been that if the land had to be leased to the shop owners to enable them to make use of the additional ground area to project the shops the Corporation should not have completely ignored the claim of the flat owners to an arrangement by which, consistent with the interest of the shop owners, the roof of the new projection could have been utilised by the flat owners so as to extend the area of their flats corresponding to the projection on the ground floor. The claim of the petitioner apparently did not find favor with the Corporation even though the Ministry of Rehabilitation appeared to be sympathetic to the claim of the flat owners. The inability of the Corporation may perhaps be attributable to the con strains of the building bye-laws. Be that as it may, the refusal of the Corporation to accommodate the claim of the petitioners, however, is not justiciable and does not entitle the petitioner to any relief in the present proceedings.

9. However the conclusion arrived at by me above that the impugned action of the Corporation and the consequential construction do not give any justiciable cause of action to the petitioner, which may entitle. them to any relief in the present proceedings, should not be taken to imply that the course adopted by the Corporation and the design of the construction represented the best solution of the problem and would not lead to difficulties, complications and some inconvenience to the petitioners. The passages leading to the stairs have been allowed to be covered by the additional construction. Some of the pipes have also been covered by the additional construction. On both these counts the possibility of some inconvenience and disconfiture to the flat owners could not be altogether eliminated. It would not be surprising if the situation created by the impugned actions leads to unnecessary estrangements of neighborly relations between the shop owners on the one side and the flat owners on the other and perhaps cause unnecessary tension. This Court can, however. only express the hope that the claims of the flat owners would perhaps be reconsidered by the Corporation in the light of these circumstances with a view to determine if any modification in the arrangement or the design and plan of the additional construction is possible at this stage, which may minimise, if not altogether eliminate any future conflict of interest between the two groups of occupants of the market and, in particular, if, in the process, at least a part of the point of view of the flat owners could be accommodated, even though keeping in view the constraints of the building bye-laws and other legal requirements. It is under stood that as far as possible the representatives of the two groups would be associated with the process, if any.

10. In the result, the petitionsfait and are hereby dismissed but, in the peculiar circumstances, without costs.

11. Petitions dismissed.


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