R V Sinha vs Ashwani Kumar & Ors.

“xxx xxx xxx

ii.

Furthermore, letters dated 16/05/2025, 03/06/2025 and 07/07/2025 u/s 344 (2) of the DMC Act – 1957 have also been sent to SHO, PS. Maidangarhi, New Delhi with the request that the said unauthorized construction be stopped immediately and workmen present at site / property in question be removed and construction material including the tools, machinery, etc. be seized. Copy of letters as sent in this regard are also annexed as Annexure – B (Colly).

iii.

Besides this, letters for disconnection of Electricity and Water supply from the aforesaid property have also been sent to the concerned authorities vide dated 16/05/2025 and 07/07/2025. Copy of the said letters are annexed herewith as Annexure – C (Colly).

iv.

Moreover, letters dated 16/05/2025 and 07/07/2025 have also been sent to the Sub- Registrar with the request not to register the property under Indian Registration Act, 1908. Copy of the said letters are also annexed herewith as Annexure – D (Colly).

v.

Furthermore, it is also relevant to point out that in respect of this property, the necessary sealing proceedings u/s 345-A of DMC Act, has also been initiated.

vi.

Pursuant to aforementioned demolition orders already passed in respect of this property, the Building Department –II of South Zone – MCD has also taken / carried out the necessary action as per details given herein below:

S.No.	Date of Action	Action taken
1.	20/05/2025	Upon availability of police force, 02 RCC panels and 01 projection have been demolished at the roof of Stilt floor and 01 projection at the roof of Ground floor has also been demolished and also cut down the

		reinforcement bars with the help of gas cutter. Beside this, brick walls have also been demolished at Ground floor and First floor.
2.	02/06/2025	Upon availability of police force, 02 RCC panels have been demolished / cut down at Ground floor roof and 01 slab portion of RCC of balcony demolished / cut at First floor roof.

The photographs taken during the aforementioned demolition actions are annexed herewith as Annexure – E (Colly).

vii.

After taking the aforementioned demolition actions, letters dated 21/05/2025 and 03/06/2025 have also been sent to concerned SHO, PS Maidangarhi, New Delhi with the request to direct the area patrolling staff to keep strict vigil at the property so that the demolished portion may not be re-stored / re-constructed / repaired. Copy of the said letter is also annexed herewith as Annexure – F (Colly).

B. Plot No. 81, Khasra No. 148, Adjacent to Happy General Store, Rajpur Khurd Extension Colony, Chattarpur, New Delhi.

i.

As per record, this property is identified by the area field staff of Building Department –II of South Zone – MCD as KH.No. 148, Rajpur Khurd Extn., New Delhi which is also stands booked for unauthorized construction vide U/c File No. 347/UC/B-II/SZ/2025 dated 21/05/2025 in the shape of Stilt, Ground floor, First floor, Second floor and Third floor, for taking the necessary demolition action u/s 343/344 of DMC Act – 1957. Upon following due process of law, the necessary demolition order has also been passed by the Competent Authority i.e. AE (Bldg) –II of South Zone – MCD vide dated 09/06/2025. Copy of demolition order is annexed herewith as Annexure –G.

ii.

Furthermore, letters dated 23/05/2025 and 03/06/2025 u/s 344 (2) of the DMC Act – 1957 have also been sent to SHO, PS. Maidangarhi, New Delhi with the request that the said unauthorized construction be stopped immediately and workmen present at site / property in question be removed and construction material including the tools, machinery, etc. be seized. Copy of letters as sent in this regard are also annexed as Annexure – H (Colly).

iii.

Besides this, a letter for disconnection of Electricity and Water supply from the aforesaid property has also been sent to the concerned authorities vide dated 27/05/2025. Copy of the said letter is annexed herewith as Annexure – I. iv. Moreover, a letter dated 27/05/2025 has also been sent to the Sub-Registrar with the request not to register the property under Indian Registration Act, 1908. Copy of the said letter is also annexed herewith as Annexure – J.

v.

Furthermore, it is also relevant to point out that in respect of this property, the necessary sealing proceedings u/s 345-A of DMC Act – 1957 has also been initiated. vi. Pursuant to aforementioned demolition order already passed in respect of this property, the Building Department –II of South Zone / MCD has also tried / taken / carried out the necessary action as per details given herein below:

“xxx xxx xxx

“xxx xxx xxx

6.

There is no gainsaying that a petition under Article 226 of the Constitution of India lies only for enforcement of a fundamental or legal right.

7.

Notably, a Co-ordinate Bench of this Court in Rajendra Motwani v. MCD reported as 2017 SCC OnLine Del 11050 has held as follows:

“10.

…that an illegal construction in itself does not give any legal right to a neighbor. An illegal construction always no doubt gives locus standi to the local municipal authorities to seek removal of the illegal construction, but, a right of a neighbor only arises if the legal rights of light and air or any other legal right is affected by virtue of the illegal construction of the neighbour…”

8.

Recently, in Pawan Kumar Saraswat v. North Delhi Municipal Corporation reported as 2021 SCC OnLine Del 4530, another Co-ordinate Bench of this Court took note of a petition filed under Article 226 of the Constitution of India, invoking extraordinary jurisdiction of this Court for relief such as the one sought in the present petition. The learned Judge observed as follows:—

“15.

Though unauthorized illegal construction, which is becoming rampant, cannot be countenanced however, I am of the view that a party that does not approach the Court with clean hands and files a petition with ulterior motives should not be permitted to invoke the extra ordinary Writ jurisdiction of this court. I am of the view that the petition deserves to be dismissed.”

9.

Admittedly, the petitioner in the present case does not have any connection with the property in question. He has further failed to show as to which fundamental or legal right of his is being affected by any alleged construction activity carried out in the subject property. It appears that the present petition has not been filed for enforcement of any fundamental or legal right, but rather for some motivated reasons.

10.

In this backdrop, this Court is not inclined to exercise its power under Article 226 of the Constitution of India to grant the relief sought by the petitioner. Besides, it has been informed by the learned counsel for respondent/Corporation that the alleged illegal and unauthorised construction at the subject property has already been booked. xxx xxx xxx”

(Emphasis Supplied)

“xxx xxx xxx

6.

There is no gainsaying that a petition under Article 226 of the Constitution of India lies only for enforcement of a fundamental or legal right.

7.

Notably, a Co-ordinate Bench of this Court in Rajendra Motwani v. MCD reported as 2017 SCC OnLine Del 11050 has held as follows:—

“10.

…that an illegal construction in itself does not give any legal right to a neighbor. An illegal construction always no doubt gives locus standi to the local municipal authorities to seek removal of the illegal construction, but, a right of a neighbor only arises if the legal rights of light and air or any other legal right is affected by virtue of the illegal construction of the neighbour…”

8.

Recently, in Pawan Kumar Saraswat v. North Delhi Municipal Corporation reported as 2021 SCC OnLine Del 4530, another Co-ordinate Bench of this Court took note of a petition filed under Article 226 of the Constitution of India, invoking extraordinary jurisdiction of this Court for relief such as the one sought in the present petition. The learned Judge observed as follows:—

“15.

Though unauthorized illegal construction, which is becoming rampant, cannot be countenanced however, I am of the view that a party that does not approach the Court with clean hands and files a petition with ulterior motives should not be permitted to invoke the extra ordinary Writ jurisdiction of this court. I am of the view that the petition deserves to be dismissed.”

9.

In the present case, the petitioner, who is about 22 years of age, claims that he resides near the subject property. He has raised grievance regarding unauthorised construction stated to be going on at the subject property. It is the admitted case of the petitioner that he neither has any connection with the subject property nor is an immediate neighbor of resident thereof. Notably, no Show Cause Notice is stated to have been issued by the respondent/Corporation in respect of the construction at the subject property till date.

10.

Further, it is not the case of the petitioner that his easement rights or ingress/egress are being affected/obstructed by the alleged construction activity. From a perusal of the petition, it is apparent that only vague and general averments have been made by the petitioner. In fact, the petitioner has not even impleaded the owner of the subject property and/or the builder stated to be carrying out the unauthorised construction at the subject property. In this backdrop, it appears that the present petition has been filed not to secure any fundamental/legal right, but for some motivated reasons. xxx xxx xxx”

(Emphasis Supplied)

“xxx xxx xxx

8.

At this juncture, it is also apposite to refer to the decision of this Court in the case of Rajendra Motwani & Anr. v. MCD &Ors., whereby, it was held as under:-

“8.

--- An illegal construction always no doubt gives locus standi to the local municipal authorities to seek removal of the illegal construction, but, a right of a neighbor only arises if the legal rights of light and air or any other legal right is affected by virtue of the illegal construction of the neighbor. Legal right to light and air is only in terms of Section 15 of the Easements Act, 1882 which requires a cause of action to be laid out and proved that right to light and air has been enjoyed for 20 years and only on completion of 20 years there is a right to acquisition by prescription in the easementary rights. It is relevant to note that even after acquisition of easementary rights of prescription, yet, right to injunction for a neighbor is not absolute and is covered by Section 33 of the Easements Act which requires that disturbance to the easementary rights must actually cause substantial damage to a neighbor and the infraction materially diminishes the value of the dominant heritage with the fact that there is material interference in the physical comfort of the neighbor of living in his own house or prevents the neighbor from carrying on his accustomed business in the dominant heritage/his own house.”

9.

The decision in the case of Rajendra Motwani (supra) has been followed in a subsequent decision dated 23.05.2022 titled as Kamal Kapoor and Anr. v. Commissioner (North MCD) and Ors., wherein, the Court rejected the prayer to direct the respondents therein to take action against the alleged illegal construction/encroachment on the ground that the petition was not filed to secure any fundamental or legal right. Under the facts of the case at hand and in light of the aforesaid decisions, the petitioner’s request for directions to the respondent-MCD to decide the representation does not seem to be amenable to writ jurisdiction. xxx xxx xxx”

(Emphasis Supplied)