Krishan Lal vs DDA

Rajiv Sahai Endlaw, J.—The petition impugns the order dated 3rd February, 2006 of the Respondent DDA cancelling the lease of the land underneath shop No. 124, Mall Road, Kingsway Camp, Delhi - 110 009 on the ground of unauthorized construction having been raised on the said plot of land.

The counsels inform that several other petitions with respect to cancellation of leases of other shop plots in Kingsway Camp have also been preferred and are listed next before this Court on 16th September, 2011. It is further informed that though this petition was earlier being taken up along with the other petitions but was segregated therefrom for the reason of the challenge to the cancellation in the present petition being on different grounds.

The counsel for the Petitioner has contended that though the notice to show cause prior to cancellation and the order of cancellation state that the cancellation is on account of the Petitioner having illegally constructed an additional floor over the plot but the counter affidavit of the Respondent DDA and the replies received now by the Petitioner to the RTI queries show that the survey of the Respondent DDA had also not found the construction of an additional floor on the land. It is thus contended that the order of cancellation is liable to be set aside on this ground alone. It is further stated that the stand of the Respondent DDA now in the counter affidavit as well as in the survey was of the Petitioner having made excessive coverage on each of the permitted floors i.e. of having made construction in excess of the FAR. The counsel for the Petitioner states that if at all the Respondent DDA intends to take action against the Petitioner on the said grounds, the resonant DDA ought to issue notice to show cause to the Petitioner specifying the said ground and give opportunity to the Petitioner to reply thereto.

On enquiry, it is informed that the other petitions are cases of construction of additional floors. It is further informed that it is the case of the Petitioners in other cases that under the MPD-2021 additional FAR is permissible and the other petitions are pending for consideration inter alia on the said aspect as to whether additional FAR is available and can the cancellation be revoked if the existing construction is within the now permissible FAR.

It has been enquired from the counsel for the Petitioner whether the coverage on each of the permitted floors is indeed in excess of the then permissible limit. The counsel for the Petitioner has fairly stated that the coverage is in excess of the FAR of 180 earlier available.

In that view of the matter, I am not agreeable to set aside the order of cancellation of lease impugned in this petition on the aforesaid technicalities when admittedly the ground of unauthorized construction for effecting cancellation existed. The Petitioner has approached this Court in equity jurisdiction and to be entitled to equity must behave equitably.

Though the petition is being pursued as against the order of cancellation of lease but in the garb of interim order obtained herein, the demolition of the admitted excess coverage has also been stayed. It has been put to the counsel for the Petitioner that even if the writ petition is to be allowed on the technicalities aforesaid, the Respondent DDA would still be entitled to implement the demolition order. It has further been put to the counsel for the Petitioner that the present petition against the demolition order would also not be maintainable, the alternative remedy of appeal before the Appellate Tribunal being available.

The counsel for the Petitioner at this stage after obtaining instructions states that he does not press the ground for which the present petition was segregated from the other petitions and requests that this petition be also taken up along with the other petitions listed on 16th September, 2011.

Allowed.

The challenge to the cancellation order on the ground aforesaid is dismissed.

List on 16th September, 2011 along with other petitions.

Interim order to continue.