1996 Supreme(Del) 179

High Court Of Delhi
ANIL KUMAR KHURANA - Appellant
Versus
MUNICIPAL CORPORATION OF DELHI - Respondent
Decided On : 02/09/1996

Headnote:Constitution of India, 1950 - Article 14 — No person can take advantage of own wrongs — Demolition of unauthorised construction — The action of the authority cannot be challenged on the ground that similar action has not been taken against other persons — Wrong decision does not entitle any person to claim benefit thereof — Principle of first come first go in the matter of demolition cannot be followed.

       Held:

       The acceptance of the contention based on Article J4 of the Constitution would mean perpetuating illegalities. No person can be permitted to take advantage of his own wrong. The buildings in question have been constructed in violation of terms of lease and building bye — laws and in contravention of sanctioned plans. It cannot be said that first the action should be taken against other law breakers. Illegal action by sanctioning plans contrary to bye — laws or non — action in other cases by not demolishing other unauthorised buildings cannot be a ground to issue a writ in favor of the petitioners taking shelter under Article 14. Article 14 has no application where action is taken by authorities to remove one evil merely on the ground that no action has been taken to remove other evils. Two persons may commit similar offence. The one who is prosecuted cannot complain of violation of Article 14 on the ground that other person has not been prosecuted. If permissible in law court may also direct prosecution or action against person who may have been left out but that would not be a ground to quash prosecution or action against the person against whom authorities are taking action. The plea of discrimination cannot be put forth when the law is given effect to. The denial of illegal favor cannot amount to discriminatory treatment vocative of principles of equality clause enshrined Article 14 of the Constitution. A wrong decision in favor of one person does not entitle any other person to claim benefit on the basis of the said wrong decision. In short, there cannot be a right to be illegally favoured on the ground that others have been so favoured. The petitioners have to establish their right in law. The plea of discrimination, thereforee, is rejected. (As per Y.K. Sabharwal, J.)

       It is also contended that the respondents are guilty of picking and choosing and for extraneous considerations have left out certain buildings from the rigour of demolition and taken up other buildings for demolition action, again on account of extraneous considerations and that buildings unauthorisedly constructed earlier should be demolished earlier and constructed later should be demolished later in point of time. If the principles of first come first go in the matters of demolition action in respect of unauthorised building, is accepted, it would mean that pending action of demolition against unauthorised construction already in existence, the authorities should not take any action in respect of ongoing unauthorised construction and permit such constructions to go on. This cannot be accepted. The principle of first come first go, has no applicability. I am not suggesting that in respect of other unauthorised constructed buildings action should not be taken. It is also true that if authorities had taken necessary action at appropriate times the present state of unauthorised construction would not have reached. It may be so but at the same time a beginning has to be made at some point of time. It cannot be held that since over years demolition action has not been taken and the entire city consists of unauthorised construction, either beginning should not be made by taking demolition action or first the old unauthorised buildings should be demolished. The authorities are,however, directed to take prompt decisions regarding other unauthorised buildings. I may also notice that neither resorting to demolition nor regularisation of the buldings unauthorisedly constructed decades earlier results in encouraging avoidable corruption at various levels and, thereforee, it is necessary for the authorities to take a prompt decision. (As per Y.K. Sabharwal, J.) Article 226 — Writ jurisdiction — Exercise of jurisdiction is purely discretionary — Unauthorised construction to the extent that it was used for commercial purpose as against stipulated residential use and also construction of 5 floors instead of 2 — 1/2 floors — A person who has committed a wrong may not be heard by Writ Court in support of plea that the authority taking action against him has no jurisdiction — A law breaker can be refused of equitable relief — Writ petition dismissed with cost.

        Delhi Development Act - Sections 12, 22 and 22 — A — Jurisdiction of DD A — Effect of — It does not bar jurisdiction of Municipal Authority, under the provisions of Delhi Municipal Corporation Act.

       

       Sections 29 & 16 — Mis — user of residential premises for commercial purpose — Resolution passed in 1965 whereby, considering the shortage of commercial accommodate — It was decided not to prosecute mis — user — Resolution does not give a right perpetually to violate the law.

        Section 60 — Saving clause therein — Effect of — Application of the statute repealed by Act on the things already done — It does not imply that the person in possession of land since 1947 and governed by a particular law prior to 1947 shall continue to be governed by the same.

       Delhi Municipal Corporation Act - Section 343 — Power of demolition — Discretion conferred on the authority to order demolition — It has to be exercised reasonably — It has no application where the unauthorised constructions and mis — user are to an extent that the a building was constructed for commercial purpose contrary to the residential use and also excess construction of 5 floors as against permissible 2 & 1/2 floors in total disregard to sanctioned plan — Discretion even if vesting in authority, cannot be exercised in favor of unauthorised construction.

       Abuse of discretion occurs where the power has been exercised in a manner i.e. in the traditional phrase, arbitrarily or capriciously. The test is once again a test of reasonableness. Rationality is what is required under both the substantial evidence rule and the arbitrary and capricious standard. Review of discretion is thus subject to essentially the same standard of review as findings of facts under the substantial evidence rule. Under that rule as seen in Section 10.8 the Court now determines whether a challenged finding was reasonable one in the light of evidence available on record. A comparable determination is made when discretion is reviewed. The Court determines whether the exercise of discretionary power was reasonable on the record presented and the circumstances of the particular case. (As per K. Ramamoorthy, J.)

       In respect of blatant unauthorised constructions and misuse as in present cases it cannot be said that the Commissioner of MCD has a discretion to order demolition or not. Vesting of discretion in these circumstances would itself be arbitrary and illegal. (As per Y.K. Sabharwal, J.)

       Section 343 — Power of the corporation thereunder — Not barred by the provisions of the Delhi Development Act, 1957.