Party Claiming Private Right In Civil Suit Entitled To File Writ Petition Requiring Municipal Corporation To Discharge Its Duty: Delhi High Court

The Delhi High Court has adjudicated an issue as to whether a petitioner who has filed a civil suit claiming certain private rights is disentitled to file a writ petition seeking a direction to the Municipal Corporation to carry out its duty.

Justice Sanjeev Sachdeva has observed that the power exercised by a High Court under Article 226 of the Constitution of India is for ensuring that the administrative authorities perform their duties and that the same is clearly distinct from a civil right that a private party may exercise against another private party.

The Court further observed that merely because the petitioner had filed a civil suit for partition claiming the relief for injunction and no interim order was granted, does not condone the illegal action of a private entity of carrying out illegal unauthorised construction contrary to municipal bye-laws and the Master Plan or preclude a High Court from exercising powers under Article 226 of the Constitution to ensure compliance of the municipal bye-laws as well as the Master Plan.

The Respondents no. 4 and 5 had objected to the maintainability of the petition arguing that a civil suit had been filed by the petitioner seeking partition of the property and that an identical prayer for restraining the respondents from raising unauthorized construction was made in the suit, however, no interim order was granted in favour of the petitioner.

On the other hand, it was argued on behalf of the petitioner that the Municipal Corporation was not a party in the Suit and that the restraint sought on the respondents was a personal civil right.

It was submitted that the petition sought directions on the Corporation to prevent illegal unauthorized construction activity.

The counsel appearing for the the South Delhi Municipal Corporation submitted that the property has been booked and appropriate action in accordance with law had also been initiated.

"Merely, because petitioner has filed a civil suit for partition and claimed the relief for injunction and no interim order has been granted does not in any manner condone the illegal action of a private entity of carrying out illegal unauthorised construction contrary to municipal bye-laws and the Master Plan or preclude a High Court from exercising powers under Article 226 of the Constitution to ensure compliance of the municipal bye-laws as well as the Master Plan," the Court observed.

Accordingly, the Court found no merit in the preliminary objection raised by the respondents no. 4 and 5 and rejected the same.

While listing the matter for further hearing on November 14, the Court directed thus:

"In the meantime, respondents shall ensure that no unauthorized construction activity is permitted in the subject property, except in accordance with a sanctioned building plan, if any."

Case Title: MOHD ARIF & ORS. v. SOUTH DELHI MUNICIPAL CORPORATION & ORS.

Citation: 2022 LiveLaw (Del) 242

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