G. Block Residents Welfare Association and Another vs O.P. Wadhwa and Others

Markandeya Katju, C.J.—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.

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''s house. Petitioner also prayed for a direction for demarcation of the property as per the lease deed and the sanctioned plan of the

petitioner.

The facts of the case are that the Land and Development Officer (L. & 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.

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.

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.

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.

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.

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 & PT Block colony on the south side of petitioners property.

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 Kalkaji directed the petitioners to get the

demarcation done of the boundary and construct the driveway/boundary wall. It is alleged that on 18.3.2005 some labourers along with some

officials at the instance of the Respondent No. 1 MCD came at the property No. DD-13, Kalkaji Extension, New Delhi and were trying to

construct a pavement on the strip of land, which is the sanctioned and approved driveway/parking space exclusively for usage of the petitioners as

per the lease deed dated 26.5.1971. On the strong protest by the petitioners and the members of the Residents Welfare Society DD & PT Block

the officials of the Respondent No. 1 stopped the work and went away threatening that they will construct the same on 22.3.2005 onwards. It is

alleged that petitioners have reasonable apprehension that they will be deprived of their own land.

An additional affidavit was also filed by the writ petitioner stating that demarcation has been done by the Overseer, LDO, L&DO in the

presence of the parties.

A counter affidavit was filed by respondent No. 2 and we have perused the same. It is alleged in paragraph 1 of the same that the petitioners

have no locus standi to file the writ petition as they are not recorded lessee of the property. The original lessee was Shri O.P. Bhasin, whose heirs

sold their leasehold interest to M/s Ravi Industrial Private Limited and M/s Giltedged Industrial Securities Ltd. The latter applied for extension of

time to construct over the plot, and the same was granted up to 31.12.90 with a condition that they will construct only a single storeyed building

containing one flat or double storeyed building consisting of only one or two residential flats, and will not start constructing till the plan passed by

MCD is approved by respondent No. 2. The recorded lessee submitted their plan which was examined by the Technical Section and it was found

that there are four units, two in each floor, and hence the same comes under Group Housing, and hence not in accordance with the lease terms.

The recorded lessee was hence, vide letter dated 20.7.92, requested to seek formal permission for construction of Group Housing but the lessee

never applied for permission for the same and made the construction without permission/approval of Lesser under the terms of lease deed. It is

alleged that the said construction is unauthorized. The petitioners are not the recorded lessee, and hence it is not possible for the respondent to

recognize them. The property stands mutated in the name of M/s Ravi Industrial Promoters Ltd. and M/s Giltedged Industrial Securities Ltd. It is

stated that the petitioners never submitted any representation to demarcate the property to the respondent nor had they any right to do so as they

are not the recorded lessee. The recorded lessee had constructed a Group Housing unauthorisedly without seeking necessary permission for the

same under the terms of lease deed and in accordance with the policy of the answering respondent.

In para 3.4-3.6, it is stated that neither any plan for construction was approved by the Lesser under the terms of the lease nor any permission

to sell etc. was ever granted by the answering respondent to the recorded lessee i.e. M/s Ravi Industrial Promoters Ltd and M/s Giltedged

Industrial Securities Ltd. The agreement to sell or purchase if any along with transfer of possession is illegal and in violation of the terms of the

lease. It is stated that no plan was ever approved by the answering respondent under the terms of the lease. Demarcation was done pursuant to the

orders of this Court by the Overseer in the Office of the L&DO.

A counter affidavit has also been filed by MCD and we have perused the same.

The G Block Residents Welfare Association Kalkaji, New Delhi appellant herein filed an impleadment application in the writ petition and also

filed an application for modification of the order dated 12.7.2005. It is stated therein that relief prayed for in the writ petition, if granted and order

dated 12.7.2005, if allowed to continue, would cause grave harm, injustice, irreparable loss and injury to the applicant and its members residents

of the area besides other residents of the area including the residents of DDA Residents Scheme namely Mangla Apartments. It is stated that the

applicant has been adversely affected by raising a fencing in as much as the link road, which was about 9.99 meters resultantly stands reduced to

about 5 meters, which is almost half of the width of the road. It is stated that the said link road is an access road for G Block residents, the

applicant herein to three different schools in the locality, a Post Office, a Police Station and Electricity Department etc. The reduced road of about

5 meters has made the passage so narrow that only one vehicle at one time can pass through, as no pavement has been left. It is stated that with

the increased flow of traffic, even 9.99 meters of road was not sufficiently wide, but as a result of the reduction of the width of the road to 5

meters, the traffic movement problems have assumed alarming proportions. The narrowness of the said link road has made the entry difficult for

emergency vehicles, fire brigade, ambulance, etc.

In our opinion, the writ petition should have been dismissed on the ground of an alternative remedy of filing injunction suit. The prayer in the

writ petition was basically one for injunction and declaration and hence a writ petition was not the proper remedy.

In Krishan Lal Gupta and Others Vs. Adhishashi Adhikari and Others, the Supreme Court held that where there are factual controversies, a

Civil Suit instead of a Writ Petition would be the proper remedy. A similar view was taken by the Supreme Court in Kishan Singh Vs. Financial

Commissioner, Haryana and Others, .

There are several disputed questions of fact in this case e.g. what is width of the lane, whether petitioners were legal lessees of the property in

dispute, whether the construction was unauthorized. The case of the respondent is that construction was made in violation of the rules, and

permission of the L. & D.O. has also not been taken for the sale of the property to respondent No. 1 in this appeal, the writ petitioner.

The learned Single Judge has referred in his judgment to the demarcation having been carried out by the L.& D.O. The demarcation report is

at page 75 of the paper book. In this connection, it may be mentioned that the demarcation is always done by the local authorities. According to

Rule 34 of the Delhi Land Revenue Rules 1962, in case of boundary disputes the Patwari shall make local inquiry with or without survey as may be

directed by the court.

A perusal of the demarcation report shows that it only bears signature of the draftsman of the L&DO. Hence it is doubtful whether it is a valid

demarcation report. However, we are not expressing a final opinion on this point as that can be decided in a civil suit.

In our opinion, all these matters were to be adjudicated in a Civil Suit and not a writ petition.

As held by the Constitution Bench of the Supreme Court in Thansingh Nathmal and Others Vs. A. Mazid, Superintendent of Taxes,

The jurisdiction of the High Court under Article 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any

restrictions except the territorial restrictions which are expressly provided in the Articles. But the exercise of the jurisdiction is discretionary: it is not

exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain

self-imposed limitations. Resort to that jurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode

prescribed by statute. Ordinarily the Court will not entertain a petition for a writ under Article 226, where the petitioner has an alternative remedy,

which without being unduly onerous, provides an equally efficacious remedy. Again the High Court does not generally enter upon a determination

of questions which demand an elaborate examination of evidence to establish the right to enforce which the writ is claimed. The High Court does

not Therefore act as a court of appeal against the decision of a court or tribunal to correct errors of fact, and does not by assuming jurisdiction

under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move

another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not

permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the

party applying to it to seek resort to the machinery so set up.

In our opinion, the petitioner had clearly an efficacious alternative remedy by filing a civil suit for declaration and injunction. In fact, in case

where the allegation is that someone is trying to encroach into the petitioner''s property or is trying to prevent him from building a boundary wall or

from making constructions etc., the proper remedy is to file an injunction suit.

Learned counsel for the respondent Mr. Sudhir Chandra submitted that there is no absolute bar to entertain a writ petition and for this

proposition he has relied on the Supreme Court decision in ABL International Ltd. and Another Vs. Export Credit Guarantee Corporation of India

Ltd. and Others, . It is true that alternative remedy is not an absolute bar to a writ petition. However, the normal rule is that if there is an alternative

remedy, the petitioner should be relegated to the same. Since writ is the discretionary jurisdiction, the High Court ordinarily does not entertain a

writ jurisdiction where there is an equal efficacious remedy vide C.A. Abraham, Uppoottil, Kottayam Vs. The Income Tax Officer, Kottayam and

Another, ; N.T. Veluswami Thevar Vs. G. Raja Nainar and Others, ; Reliance Petroleum Ltd. Vs. Zaver Chand Popatlal Sumaria and Others, ;

State of U.P. and others Vs. Bridge and Roof Co. (India) Ltd., ; M.S.R. Prasad Vs. Bommisetti Subba Rao and Others, ; Umesh Shivappa Ambi

and Others Vs. Angadi Shekara Basappa and Others, State of Himachal Pradesh Vs. Raja Mahendra Pal and Others, ; Todi Industries Ltd. Vs.

Union of India (UOI) and Others, ; Chanan Singh and Sons Vs. Collector Central Excise and Others, ; Kerala State Electricity Board and

Another Vs. Kurien E. Kalathil and Others,

Learned counsel for the respondent submitted that once a writ petition has been entertained, it should not be later dismissed on the ground of

alternative remedy. In this connection he has relied on the Supreme Court decision in L. Hirday Narain Vs. Income Tax Officer, Bareilly, , where

the Supreme Court observed that since the High Court had entertained the writ petition, it was not justified in dismissing it later on the ground of

alternative remedy of a revision before the Commissioner of Income Tax.

Learned counsel has also relied on decision of the Supreme Court in Ganga Retreat and Towers Ltd. and Another Vs. State of Rajasthan and

Others, , State of H.P. v. Gujarat Ambuja Cement Ltd. 2005 (6) SCC 499 and U.P. State Spinning Co. Ltd. Vs. R.S. Pandey and Another,

In our opinion, none of the aforesaid decisions have laid down any absolute rule that once a writ petition has been entertained or even allowed,

the same cannot be subsequently dismissed on the ground of an alternative remedy. It all depends on the facts of the case. An appeal is only a

continuation of the proceedings of the original Court and hence the Appellate Court has the same power as the original Court. There are large

number of decisions of the Supreme Court where even the High Court had allowed the writ petition, the Supreme Court in appeal dismissed the

writ petition on the ground of alternative remedy, e.g. Ganu Ram Vs. Rikhi Ram Kaundal and Others, .

In our opinion, the present is a case where the writ petitioner should have been relegated to his alternative remedy of filing a civil suit. If such

writ petitions which are really in the nature of injunction and/or declaration suits are entertained, then this Court would be flooded with such writ

petitions. In the present case, the grievance of the writ petitioner (respondent in this appeal) was that on 18.3.2005 some officers of MCD arrived

at his property and wanted to construct a pavement on the strip of land allegedly belonging to him. In such circumstances the proper remedy of the

writ petitioner was to file an injunction suit to restrain the MCD from constructing or interfering with the petitioner''s land and also to seek a

declaration of title to the land. In our opinion in all cases where there is an allegation that someone is trying to encroach upon a person''s land, that

person should ordinarily be required to file an injunction and declaration suit and not file a writ petition.

For the reasons given above, the writ appeal is allowed and impugned judgment is set aside. The writ petition is dismissed on the ground of an

alternative remedy of filing a civil suit for declaration and injunction.