The need for the petitioners to prove their sanctioned plans and construction in a civil suit, as the relief of declaration alone would not serve the purpose.

MANMOHAN, J.

1. Present writ petition has been filed with the following prayers:-

“(a) issue a writ of declaration declaring the act of the Respondent Corporation in proceeding to demolish the portion of the property of the Petitioners, is totally illegal, arbitrary and without any authority of law and

(b) issue a writ of mandamus thereby directing the Respondent corporation not to take any action or interfere with the possession and enjoyment of the Petitioners in respect of the properties bearing plot Nos.166, 177, 178, 179, 180, 183, 183A and 184 situated Shama Prasad Mukerjee Park, New Delhi, except by following the procedure prescribed under law; and

(c) pass such other or further orders as this Hon’ble Court may deem fit and proper in the facts and circumstances of the present case.”

2. It is the case of the petitioners that as the petitioners are the owners of the land in question and they had carried out construction in accordance with the sanctioned plan, their properties could not have been demolished.

3. Learned counsel for the respondent-Corporation states that it has only removed encroachments and unauthorised construction on public road carried out by the petitioners, in compliance with the directions of a Division Bench of this Court to make the Chand Nagar, Punjabi Market Road 45 ft. wide. The relevant portion of the counter-affidavit filed by the respondent-Corporation is reproduced hereinbelow:--

“4. That the petitioners had raised unauthorised constructions and encroachment on the public land which have been removed by the officials of Respondent/MCD in compliance of the directions of the Hon’ble Court in order to make the road 45 feet wide to ensure a proper space for traffic movement and other emergency services. That the encroachment removal action has been taken out by the MCD as per lay out plan of the area.

xxxx xxxx xxxx xxxx

6. That the encroachment has been removed on both sides of the road, in accordance with the directions passed by the Hon’ble High Court after taking due consideration of the Survey Report submitted by this office, in order to give a clear 45 feet road as per the directions of the Hon’ble Court.” (emphasis supplied)

4. Upon a perusal of the paper book, this Court finds that the Division Bench of this Court had directed that 45 feet wide road shall be ensured by the respondent authority in Chand Nagar, Punjabi Market Road. Though the admitted position is that the road had been encroached upon, yet it is the case of the petitioners that the encroachment was by occupants of an unauthorised colony on the opposite side of the road and, therefore, the said encroachment should have been removed and not the construction carried out by them. But this fact is not admitted by the learned counsel for the respondent-Corporation. Consequently, this Court is of the view that disputed questions of fact arise for consideration in the present proceedings.

5. At this stage, learned counsel for the petitioners contends that no disputed question of fact is involved as the petitioners have a sanctioned plan in their favour which shows length of their properties as 65 ft. In support of her contention, she relies upon the approved sanction plan.

6. Learned counsel for the petitioners also points out that a Court Commissioner appointed by this Court had furnished a report stating that there was no encroachment on the public land by the petitioners.

7. However, this Court is of the view that as the respondent-Corporation and occupants of the properties on the other side of the road have taken a categorical stand that the petitioners have raised unauthorised construction and have encroached upon the public land, the petitioners would have to step into the witness box and would have to prove their sanctioned plans as well as the fact that their construction was in accordance with the authorised plans.

8. The Court Commissioner’s report, at best, can be a piece of evidence, but it cannot be accepted as a ‘gospel tr