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2006 DIGILAW 348 (DEL)

SUDHIN SARKAR v. UNION OF INDIA

2006-02-23

PRADEEP NANDRAJOG

body2006
PRADEEP NANDRAJOG, J. ( 1 ) THE three matters are somewhat inter-related and are, therefore, being decided together. ( 2 ) SATISH Nischal, relator in Cont. Cas (C) No. 688/2005 and six other persons, one of them being Sudhin Sarkar, co-petitioner in WP (C) No. 23634- 35/2005 had filed a writ petition bearing WP (C) No. 5315-20/2005. In the said writ petition, they targeted property No. DD-26, Kalkaji, New Delhi. They alleged that the property was being constructed contrary to the sanction obtained. Writ petition was disposed of vide order dated 4. 5. 2005 directing MCD to take action against property No. DD-26, Kalkaji, New Delhi in accordance with law. ( 3 ) SATISH Nischal filed Cont. Cas (C) No. 688/2005 praying that contempt proceedings be initiated against the respondents for not complying with the order. It is alleged in the contempt petition that on 29. 6. 2005, cosmetic demolition was effected. It is alleged that offending constructions still stand. ( 4 ) THEREAFTER, Sudhin Sarkar and Santanu Sarkar filed WP (C) No. 23634- 35/2005. They alleged unauthorized construction by respondent No. 4 in respect of the same property i. e. DD-26, Kalkaji, New Delhi. They allege that inspite of order dated 4. 5. 2005 offending constructions have been allowed to be completed and occupied. They pray that the unauthorized construction in property bearing No. DD-266, Kalkaji, New Delhi be demolished. ( 5 ) RESPONSE filed by respondent No. 4 in WP (C) No. 23634-35/2005 is that the writ petitioners are blackmailers. It is stated that a four storied building stands constructed just opposite the house where said petitioners reside. It is stated that petitioners have not initiated any action against the property which bears municipal No. 2/31, Kalkaji, New Delhi. Additionally, it is alleged that gross unauthorized constructions have been effected on property No. DD-29 to 32, DD-8, DD-10 and DD-1. It is stated that there is no reason why petitioners are not targeting the said properties. It is stated that the petitioners have blackmailed the owners of the said properties to pay money to the petitioners and as a result, petitioners are not seeking any relief against the said properties. In the counter affidavit filed by respondent No. 4 it was stated that the petitioner of Cont. Cas (C) No. 688/2005 would be withdrawing the contempt petition. In the counter affidavit filed by respondent No. 4 it was stated that the petitioner of Cont. Cas (C) No. 688/2005 would be withdrawing the contempt petition. ( 6 ) INDEED, this assertion came to be true for the reason, petitioner of cont. Cas (C) No. 688/2005 filed CM. 2125/2006 praying that he be permitted to withdraw the contempt petition. Immediately thereafter, Sudhin Sarkar filed cm. 2444/2006 seeking to be impleaded as a petitioner in the contempt petition stating that he was a co-petitioner in the original contempt petition and he be permitted to prosecute the contempt petition. ( 7 ) RECORD produced by MCD evidenced unauthorized construction in property No. DD-26, Kalkaji, New Delhi. ( 8 ) PLEADINGS in WP (C) No. 23634-35/2005 show that petitioners are residents of DD-27, Kalkaji, New Delhi. In para 2 of the writ petition, petitioners have alleged as under :"petitioners are interested in the proper maintenance of the civic amenities as well as peaceful existence in their residence as the residence of the petitioners is immediately adjacent to and contiguous with the plot in question i. e. DD-26. " ( 9 ) DEALING with the averments made by respondent No. 4 that petitioners of wp (C) 23634-35/2005 are blackmailers evidenced by the fact that against other properties which have gross unauthorized construction no writ petition has been filed, petitioners stated as under :"i say that nonetheless, unlike the building at DD-26, the building No. 2/31 did not directly affect us as the building was across a 30 feet wide street and being on the North side did not block our sunlight, it has separate sewer lines and water supply lines. " ( 10 ) THERE are no averments in the rejoinder affidavit dealing with various properties detailed by respondent No. 4 in his counter affidavit alleging unauthorized construction and why petitioners have sought no action against said properties. ( 11 ) PHOTOGRAPHS of various properties have been shown to me in court. The photographs show five storied construction in Kalkaji. ( 12 ) IT is true that a writ petition can be filed by a citizen who is aggrieved by non-implementation of Building Bye-Laws in the colony for the reason, building activities are regulated for the benefit of all the residents of the area. But this right cannot be selectively enforced by a citizen. ( 12 ) IT is true that a writ petition can be filed by a citizen who is aggrieved by non-implementation of Building Bye-Laws in the colony for the reason, building activities are regulated for the benefit of all the residents of the area. But this right cannot be selectively enforced by a citizen. If the court find that a petition is actuated with consideration other than of desire to safeguard civic rights, a writ court would be perfectly justified in declining the relief to the petitioner. ( 13 ) I have noted above facts from the pleadings in the writ petition and the rejoinder. Justifying their petition only against respondent No. 4, petitioners plead that this building is affecting their sunlight and since the water and sewage lines are common, water and sewage facilities to the property no. DD-27 occupied by the petitioners would be affected. ( 14 ) PLEADINGS of the writ petitioners show that their claim is actually based on an easementary right. To this extent, they must file a civil suit and prove that their easementary right to air and water have been affected. ( 15 ) PETITIONERS are ignoring gross unauthorized constructions right opposite and behind their property. They are ignoring other unauthorized constructions in the colony. In my opinion, petitioners have a axe to grind against respondent No. 4. There is something more than a desire to enforce municipal Laws. ( 16 ) I decline to grant any relief to the writ petitioners of WP (C) 23634- 35/2005. The said writ petition is dismissed. ( 17 ) HOWEVER, dismissal of the writ petition would not mean that municipal authorities would not take action as per law if unauthorized construction is determined in property No. DD-26, Kalkaji, New Delhi. ( 18 ) SINCE Satish Nischal has sought to withdraw the contempt petition, I permit him to withdraw the contempt petition. ( 19 ) SUDHIN Sarkar s application under Order 1 Rule 10 CPC i. e. CM. No. 2444/2006 is dismissed for the reasons recorded hereinabove dismissing wp (C) 23634-35/2005. ( 20 ) NOTICE of contempt was not issued in Cont. Cas (C) No. 482/2006. Sudhin Sarkar is the petitioner. He seeks to initiate contempt action against respondents pertaining to property No. DD-26, Kalkaji, New Delhi. ( 21 ) FOR the reasons recorded above dismissing the writ petition filed by him and the co-petitioner, Cont. ( 20 ) NOTICE of contempt was not issued in Cont. Cas (C) No. 482/2006. Sudhin Sarkar is the petitioner. He seeks to initiate contempt action against respondents pertaining to property No. DD-26, Kalkaji, New Delhi. ( 21 ) FOR the reasons recorded above dismissing the writ petition filed by him and the co-petitioner, Cont. Cas (C) No. 482/2006 is also dismissed. No costs. .