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High Court Of Delhi
G.BLOCK RESIDENTS WELFARE ASSOCIATION AND ANR. - Appellant
Versus
O.P.WADHWA AND ORS. - Respondent
Decided On : 03/06/2006
writ petition - property dispute - Delhi Land Revenue Rules 1962 - demarcation report - alternative remedy of filing a civil suit
Fact of the Case:
The writ petition was filed seeking a mandamus to prevent obstruction in building a driveway/boundary wall and to demarcate the property as per the lease deed and sanctioned plan. The petitioner claimed to be the lessee of the property, while the respondents disputed this claim. The court found that the writ petition should have been dismissed on the ground of an alternative remedy of filing an injunction suit.
Finding of the Court:
The court found that the writ petition was not the proper remedy as it was essentially seeking injunction and declaration, and there were several disputed questions of fact that should have been adjudicated in a civil suit.
Issues: The main issue was whether the writ petition was the appropriate remedy for the property dispute, and whether the petitioner had an alternative remedy of filing a civil suit.
Ratio Decidendi: The court held that where there are factual controversies, a civil suit instead of a writ petition would be the proper remedy. It emphasized that the jurisdiction of the High Court under Article 226 of the Constitution is discretionary and not intended as an alternative remedy for relief obtainable through a suit or other prescribed mode.
Final Decision: The writ appeal was allowed, and the impugned judgment was set aside. The writ petition was dismissed on the ground of an alternative remedy of filing a civil suit for declaration and injunction.
( 1 ) THIS writ appeal has been filed against the impugned judgment of the learned Single judge dated 30. 11. 2005. Heard learned counsel for the parties and perused the record.
( 2 ) THE prayer in the writ petition was for a mandamus directing the respondents not to obstruct the petitioners to build up their driveway/boundary wall as per the sanctioned plan of the property over the land allotted to them by lease deed dated 26. 5. 1971. The petitioner has also prayed for a mandamus restraining the respondents from making any construction on the strip of land measuring 22. 6 ft. x 120 ft. in width on the eastern side of the petitioner house. Petitioner also prayed for a direction for demarcation of the property as per the lease deed and the sanctioned plan of the petitioner.
( 3 ) THE facts of the case are that the Land and Development Officer (L. and D. O.) had leased out a plot of land having demarcation admeasuring 1067 sq. yards situated at Plot no. DD-13 in Kalkaji Rehabilitation Colony, New delhi to Shri O. P. Bhasin vide lease deed dated 26. 5. 1971. On the death of Shri O. P. Bhasin, same was substituted in the name of his legal heirs. The legal heirs of Shri O. P. Bhasin sold the property to M/s Ravi Industrial Promotions limited and M/s Giltedged Industrial Securities Limited.
( 4 ) THE petitioner claimed to be the lessee of the said property by virtue of the agreement to sell dated 28. 6. 95 with M/s Ravi Industrial promotions Limited and M/s Giltedged Industrial securities Limited. Copies of the agreement to sell and purchase are Annexure P-III to the writ petition.
( 5 ) IT is alleged in para 2 of the writ petition that MCD is trying to construct a pavement on the strip of land belonging to the petitioner.
( 6 ) M/s Ravi Industrial Promotions Limited and M/s Giltedged Industrial Securities Limited had entered into an agreement on 24. 3. 93 with M/s Richi Industrial Private Ltd for construction on the said plot of land and erection of a building comprising of basement, ground floor, first floor and second floor on the said plot of land vide MCD sanctioned plan and MCD Sanctioned Elevation Plan for the construction of the building dated 22. 9. 92. The copies of the said Sanctioned Plans are annexure P-II to the writ petition.
( 7 ) IT is alleged that by virtue of the aforesaid agreement M/s Richi Industrial Private Limited became owner of 50% share of total constructed areas and common areas etc.
( 8 ) IT is alleged in para 3. 8 of the writ petition that as per the approved plan and schedule in the lease deed the driveway/parking space of area 22. 6 x 120 feet was to be maintained for the usage of petitioners for driveway/parking their vehicles etc. In front of the parking place/driveway there was a small passage connecting the "g" Block with the dd Block. It is alleged that the said passage had never been the main entrance of the G block colony. It is alleged that G Block residents welfare association has constructed a gate thereon on their side enclosing their G Block which hardly opens for a very few hours and it is not a regular main connecting entrance of the said G Block colony. It is alleged that the said passage was converted into a lane with a mala-fide intention of residents of the G block association in collusion with the respondents. Moreover, there exists a service lane between G Block and DD and PT Block colony on the south side of petitioners property.
( 9 ) IT is alleged in para 3. 13 of the petition that in the month of January 2001 the petitioners tried to construct a boundary wall for their driveway/parking space on the said strip admeasuring 22. 6 x 120 feet, but the residents welfare association of G Block objected to it and at their instance the local police intervened and stopped the petitioners from constructing the boundary wall covering the entire parking space of open area of land of their own being 22. 6 x 120 feet. By letter dated 14. 1. 2001 the SHO Police Station
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