MARKANDEYA KATJU, CJ.

( 1 ) THIS writ appeal has been filed against the impugned judgment of the learned Single judge dated 26th October 2004 by which the writ petition was allowed.

( 2 ) HEARD learned counsel for the parties and perused the record.

( 3 ) THE writ petition was filed challenging the order dated 22. 10. 2003 passed by the lt. Governor of Delhi by which he reversed the order dated 2. 7. 2003 passed by the appellate Tribunal,mcd by which the Tribunal upheld the order dated 11. 1. 1994 passed by the Additional Commissioner, MCD revoking the sanction obtained for further construction in property C-100, Anand niketan, New Delhi.

( 4 ) THE facts of the case are that the writ petitioner, Shri O. P. Malik and his brother late shri K. L. Malik, the father of respondents 2 and 3 in the writ petition, were jointly allotted property bearing No. C-100, Anand Niketan, new Delhi by a Perpetual Sublease deed dated 11. 9. 1968 through Anand Niketan Coop. Housing Society Ltd. The said plot measures 423. 20 square yards.

( 5 ) THE writ petitioner has alleged that being a government employee he was working in chandigarh since 1960 and consequently he remained outside Delhi throughout.

( 6 ) IT is alleged in para 4 of the writ petition that the writ petitioner executed a power of attorney dated 13. 2. 1974 in favour of his late brother, Shri K. L. Malik authorising him to apply to the municipal authority for the sanction of the building plans and to raise construction on his part of the property. On the basis of the said power of attorney Shri k. L.-Malik got the building plan sanctioned from the MCD in 1974 and raised his part of construction in the property. Thereafter he again got the building plan sanctioned for making additions to the property in 1984. The building plans are only sanctioned on the joint request of the co-owners. A single co- owner cannot get any sanction of plan and thus deprive the other co-owner of his right in a property. It is for this reason that the power of attorney was given to Shri K. L. Malik.

( 7 ) IT is alleged in para 5 of the writ petition that since the plot was jointly owned it was agreed between the petitioner and his late brother that they would be owners of 50% share in the property and would construct only in their portions and the constructions raised by each of them would not exceed 50% of the total permissible covered area and the total floor area ratio permitted in the property. The total permissible covered area as per the sanctioned plan was 1904. 75 sq. ft and, therefore, it was agreed that Shri K. L. Malik would not construct on more than 50% of the said area i. e. 952. 375 sq. ft on the ground floor as per the plan approved in 1974. It is alleged that Shri K. L. Malik adhered to the said assurance till 1984 but subsequently he sought to misuse the power of attorney by obtaining sanction and raising construction far in excess of 50% of the area to which he was entitled.

( 8 ) IN para 6 of the writ petition it is alleged that the petitioner on coming to know of the said mal intention of Shn K. L. Malik cancelled the power of attorney which he had given to him by sending a registered letter dated 1. 10. 1985. It is alleged that a copy of the said letter was also delivered to the MCD.

( 9 ) IN para 8 of the writ petition it is alleged that Shri K. L. Malik despite having the knowledge of the fact that the power of attorney issued in his favour had been cancelled, submitted an application for sanction of the building plan by wrongly showing himself as the sole owner of the property. Thereafter, when the petitioner came to know of the said illegality and complained to the MCD, late Shri K. L. Malik with the connivance of the lower staff of the mcd made interpolation in the records of the mcd and attempted to show as if he was acting as the attorney of the petitioner. Along with the said application late Shri K. L. Malik submitted an indemnity bond, affidavit etc on which the signatures of

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