2018 Supreme(Del) 3255

IN THE HIGH COURT OF DELHI AT NEW DELHI
V. KAMESWAR RAO, J.
Mrs. Vasumati Mahajan And Anr. - Petitioners
Versus
South Delhi Municipal Corporation and Ors. - Respondents
W.P.(C) 1524 of 2018, CM No. 6253 of 2018
Decided On : 13-04-2018

Headnote:

The court held that a pre-primary school can be opened from the property situated on a road, which has not been notified for mixed use activities. Prior sanction of the SDMC is required to be obtained by the respondent No.3 for starting a pre-primary school.

Fact of the Case:

The petitioners, who are the co-owners of the upper floors including first, second and third floor as well as terrace of the property No. E-68, Vasant Marg, Vasant Vihar, New Delhi with her daughter by virtue of Conveyance Deed dated February 14, 2003, filed a petition with the following prayers: - A Writ, Order and/or Direction in the nature of PROHIBITION, inter alia restraining the Respondent Nos. 1 to 3 from granting any permission to Respondent No.4 and/or 5 to open any school, including any Pre-Primary School/Montessori Preschool/Daycare, from ground floor and/or basement of property bearing no. E-68, Vasant Marg, Vasant Vihar, New Delhi. - A Writ, Order and/or Direction, in the nature of MANDAMUS, inter alia directing the Respondent Nos.1 to 3 to ensure that no school, including any Pre-Primary School/Montessori Preschool/Daycare, is opened from ground floor and/or basement of property bearing No. E-68, Vasant Marg, Vasant Vihar, New Delhi. AND/OR ANY OTHER FURTHER WRIT, ORDER AND/OR DIRECTION, WHICH THIS HON’BLE COURT MAY DEEM JUST FIT AND PROPER, IN THE FACTS AND CIRCUMSTANCES OF THE CASE, IN FAVOUR OF THE PETITIONERS. The petitioners stated that the petitioner No.1 is one of the co-owners of the entire upper floors including first, second and third floor as well as terrace of the property No. E-68, Vasant Marg, Vasant Vihar, New Delhi with her daughter by virtue of Conveyance Deed dated February 14, 2003. The said first, second and third floor of the property has been let out by the petitioner No.1 to various tenants, who are living there. Petitioner No.2 is the tenant on the third floor of the said property. The petitioners have stated that to the best of their knowledge, ground floor and basement portion of the said property are owned by respondent No.2. There are two driveways in the property; one on the right side of the property used by owners/occupiers of ground floor and basement while the one towards the left side of the property used by owner/occupiers of the above floors. On or about December 16/17, 2017, the respondent No.2 had telephonically contacted Mr. Harish Mahajan, the son of the petitioner No.1 and informed him that respondent No.2 was interested in setting up a pre-primary school from the ground floor and the basement of the said property. According to the petitioners, during the conversation, Mr. Harish Mahajan has specifically informed respondent No.2, no portion of the property could be used for opening of any school of any nature whatsoever as the property is neither commercial in nature or it had been built for carrying out any commercial activity including opening of any school. According to the petitioners, Mr. Mahajan had emphasized that the same would be in violation of statutory Rules and Regulations and would cause a lot of harassment and nuisance to the other occupiers of the property. A reference in the writ petition is made to a whatsapp message sent by respondent No.2 on December 18, 2017 and by Mr. Harsh Mahajan on December 20, 2017 and December 21, 2017 to respondent No.2. It is stated, pursuant to the communications referred above, respondent No.2 contacted Harish Mahajan and informed him that the respondent No.2 has not taken any decision. Thereafter, on February 13, 2018, the petitioners were dismayed to see a banner put up outside the front gate of the said property to the effect that Montessori Pre School and a Daycare is opening from property very soon by respondent No.3. According to the petitioner, apprehending collusion between respondent Nos.2 and 3 that they would take steps to establish some school from the premises, they have filed the present petition on various grounds. Suffice to state, the grounds shall be dealt with while noting the submissions advanced on behalf of the petitioners.

Finding of the Court:

The court held that the respondent No.3 cannot run a pre-primary school without the road on which the property is situated is identified for mixed use/NOC from the occupants of the other dwelling units in the building and sanction of the SDMC for running a pre-primary school from the ground floor of the property bearing No. E-68, Vasant Marg, Vasant Vihar, New Delhi are taken/obtained.

Issues: 1. Whether a pre-primary school can be opened from the property situated on a road, which has not been notified for mixed use activities? 2. Whether prior sanction of the SDMC is required to be obtained by the respondent No.3 for starting a pre-primary school?

Ratio Decidendi: 1. The court held that a pre-primary school can be opened from the property situated on a road, which has not been notified for mixed use activities. 2. The court held that prior sanction of the SDMC is required to be obtained by the respondent No.3 for starting a pre-primary school.

Final Decision: The court allowed the petition and held that the respondent No.3 cannot run a pre-primary school without the road on which the property is situated is identified for mixed use/NOC from the occupants of the other dwelling units in the building and sanction of the SDMC for running a pre-primary school from the ground floor of the property bearing No. E-68, Vasant Marg, Vasant Vihar, New Delhi are taken/obtained.