Government of NCT Delhi v. Late Virender Kumar Sharma Thr Lrs & Ors

V.K. SHALI, J. Page 10of 10

* HIGH COURTOF DELHIAT NEW DELHI + R.S.A.No.70/2013& RSA No.71/2013 Decidedon : is"' February, 2015 + RSA 70/2013 GOVERNMENTOF NCT DELHI Appellant Through: Mr.V.K.Tandon,Advocate. versus LATE VIRENDERKUMARSHARMATHR LRS &ORS. Respondent Through: Mr.RakeshSaini,Adv. Mr.Sanieev Sabharwal, Adv. for DDA. AND + RSA 71/2013 PUBLICWORKS DEPARTMENT Appellant Through: Mr.V.K.Tandon,Advocate. versus LATE VIRENDERKUMARSHARMATHR LRS &ORS. Respondent Through: Mr.RakeshSaini,Adv. Mr.Sanjeev Sabharwal, Adv. for DDA. R.S.A. Nos.70/20I3& 71/2013 Certify that the digital file and physical file have been compared the digital data is as per the physical file CORAM: HON'BLE MR. JUSTICE V.K. SHALI V.K. SHALL J. (ORAL) 1. These two appeals have been filed by the Govt. of NCT of Delhi and Public Works Department against the judgment dated 19.10.2012passed by the learned ADJ upholdingthe judgmentand decree dated 18.08.2009passed by the learned Civil Judge in Suit No.463/2007 titled Virender Kumar Sharma and Ors. v. Delhi Administrationand Ors. grantingan injunctionin the favour of the respondents/plaintiffs. 2. The learned counsel for the appellants has stated that the followingsubstantialquestionsof law arise for considerationin the present appeals. i) Whetherrightofeasementi.e. to open doors, windows, gates and ventilators towards school, can be claimed in respect of unauthorized properties already having doors, windows,gates and ventilatorson the other side? ii) If yes, whether such right won't amount to supersedingthe right of safety, security of students, females staff? P^Se2of10 iii) Whethersituation,mentionof 10' wide gali on one side in property documents in inauthorized,unplannedcolony, can prevail over sanctioned plan, acquisition for a Government School? iv) Whetherorder/decreeto demolishboundary wall and to restore Gali could be issued, when the wall was constructed on acquired land, Gali formed a part of acquired land, especially when said acquisition has nowhere been challenged, set aside? 3. Before dealing with the aforesaid questions, which are essentiallyquestionsof fact, it may be pertinenthere to give a brief background of the case. 4. The respondents filed a suit for declarationand mandatory injunction against the Government of NCT of Delhi, Director of Education& PWD. The case whichwas setup by them in plaintwas that they are the ownersof varioushouses in BrahampuriRoad, Gali Jain Sthanak,Gautampuri,Seelampur,Delhi. Itwas allegedby them that they are regularly paying up the house tax to the Municipal CorporationofDelhi,ShahdaraZone, Delhi in respectofthe plots in questionwhich were purchasedby them in 1971, built up by them R.S.A. Nos. 70/2013& 71/2013 >7^ and occupiedby them for residentialpurposes. On the northernside of the plots, there was a 15 inch wide road and on the southernside, therewas a 10inchwidegali. It is onthe southernas well as northern side that the respondents/plaintiffshad openedtheir doors, windows, gates, ventilatorsetc. and the appellants(includingoriginaldefendant Nos. 2 & 3) weretryingto raisea boundarywallbecauseof whichnot only the free accessto their houses from the southernside was being obstructed,but also, they were being deprived of free flow of air. This was allegedly being done by them in gross violation of the revised sanctionedlay out plan preparedby the DDA accordingto which an area of 3 meter was to be left around the houses. The appellants contested the suit and raised a plea that the respondents/plaintiffsdo not have the right,title or interestin the suit property and no easementaryrights accrued to them. It was also allegedby them that the land in questionis acquiredand thereafterit was handed over to the Directorate of Education which in turn was usingthe same for constructionofa seniorsecondaryschool. On the basis of the aforesaid pleadingsof the parties, the following issues were framed: ^ of i) Whether the suit is not maintainable for want of statutory notice under Section 80 CPC? OPD. i