M/S. Ashoka Estate (P) Ltd. Vs. N.D.M.C. and Others - Court Judgment

Excerpt:
constitution of india, 1950 - article 226--writ of certiorari--calling upon respondent no. 1 to produce its records sanctioning electric connection in name of respondent no. 3--contested--submitting that sanction was pursuant to order passed by court--maintainability challenged--since it amounts to reviewing the order already passed--petitioner has to assert his proprietary rights under the flat--seek adjudication--cannot be permitted in writ jurisdiction--open to petitioner to seek his remedies in the civil forum--petition dismissed. - - 3 since he had failed to complete requisite formalities with regard to grant of connection and to furnish documents.ordermanmohan sarin, j rule.1. with the consent of the parties writ petition is taken up for disposal.learned counsel for the parties have been heard.2. petitioner claimed to be original owner of plot no.24, barakhamba road, new delhi. petitioner entered into an agreement with respondent no.2 for development of the plot. counsel for both the parties point out that in terms of the agreement entered into between them 30% of the area and sale proceeds were to be retained by the petitioner and 70% fell to the share of builder.3. the petitioner by this writ petition seeks a writ of certiorari calling upon the respondent no.1 to produce its records sanctioning the electric connection in the name of respondent no.3 pertaining to portion of gl-7a in the basement of the premises at 24, barakhamba road, new delhi. petitioner seeks quashing of the order sanctioning the electric connection which appears at page 93 of the paper book. the said connection was sanctioned interalia subject to respondent no.3 giving an undertaking that the premises shall be used for storage only.4. it is common ground between the parties that respondent no.3 had filed a writ petition bearing cw no.4261/99, wherein respondent no.1/ndmc had been imp leaded as the only respondent. said writ petition was disposed of vide orders dated 28.7.1999, directing the respondent no.3 to appear before the ndmc and to give an undertaking regarding using the premises only for purposes of storage. it is stated that the said sanction of electric connection was pursuant to the order passed by this court when respondent no.3 appeared before the ndmc and submitted the undertaking. learned counsel for the petitioner has urged before me that the fraud had been played by respondent no.3 in as much as respondent no.3 has extended premised in its possession by false roofing the basement floor immediately under the ground floor approach lobby of lift and hanging above the basement floor approach lobby of the lift, surrounded by the lift shafts.5. case of the petitioner is that respondent no.3 had no right to this area and these fell to the share of the petitioner and in any case were common areas. this as per the petitioner could not be joined in the premises in possession namely gl 7a. learned counsel for respondent no.3 in the present case has raised a preliminary objection to the maintainability of the writ petition on the ground that permitting the present writ petition to be entertained would amount to reviewing the order passed in cw no. 4261/99.6. learned counsel for the petitioner has placed reliance on air 1963 sc 1909 state of punjab to urge that since the petitioner was not a party in the earlier proceedings and order prejudicial to him had been passed, thereforee, it could challenge the same on these collateral proceedings by way of writ petition. leaving this objection on the part of the respondent no.3 apart, i find that the petitioner in substance is trying to assert his proprietory rights under the flat buyer agreement and seek their adjudication and determination in these proceedings. this cannot be permitted in writ jurisdiction. it would be open for the petitioner to seek his remedies against respondent no.3 in the civil forum if so advised.7. learned counsel for the ndmc submits that certain proceedings have been initiated against respondent no.3 since he had failed to complete requisite formalities with regard to grant of connection and to furnish documents. it would be open for the respondents to proceed in accordance with law with regard to completion of all requisite formalities for the grant and continuation of the electric connection. it is clarified that it would be open for the respondent to proceed against respondent no.3 in case they find there has been or there is any breach of any of the conditions for the grant of the electric connection.writ petition is dismissed with aforesaid directions and observations.

Judgment:
ORDER

Manmohan Sarin, J

Rule.

1. With the consent of the parties writ petition is taken up for disposal.

Learned counsel for the parties have been heard.

2. Petitioner claimed to be original owner of plot No.24, Barakhamba Road, New Delhi. Petitioner entered into an agreement with respondent No.2 for development of the plot. Counsel for both the parties point out that in terms of the agreement entered into between them 30% of the area and sale proceeds were to be retained by the petitioner and 70% fell to the share of builder.

3. The petitioner by this writ petition seeks a writ of certiorari calling upon the respondent No.1 to produce its records sanctioning the electric connection in the name of respondent No.3 pertaining to portion of GL-7A in the basement of the premises at 24, Barakhamba Road, New Delhi. Petitioner seeks quashing of the order sanctioning the electric connection which appears at page 93 of the paper book. The said connection was sanctioned interalia subject to respondent No.3 giving an undertaking that the premises shall be used for storage only.

4. It is common ground between the parties that respondent No.3 had filed a writ petition bearing CW No.4261/99, wherein respondent No.1/NDMC had been imp leaded as the only respondent. Said writ petition was disposed of vide orders dated 28.7.1999, directing the respondent No.3 to appear before the NDMC and to give an undertaking regarding using the premises only for purposes of storage. It is stated that the said sanction of electric connection was pursuant to the order passed by this court when respondent No.3 appeared before the NDMC and submitted the undertaking. Learned counsel for the petitioner has urged before me that the fraud had been played by respondent No.3 in as much as respondent No.3 has extended premised in its possession by false roofing the basement floor immediately under the ground floor approach lobby of lift and hanging above the basement floor approach lobby of the lift, surrounded by the lift shafts.

5. Case of the petitioner is that respondent No.3 had no right to this area and these fell to the share of the petitioner and in any case were common areas. This as per the petitioner could not be joined in the premises in possession namely GL 7A. Learned counsel for respondent No.3 in the present case has raised a preliminary objection to the maintainability of the writ petition on the ground that permitting the present writ petition to be entertained would amount to reviewing the order passed in CW No. 4261/99.

6. Learned counsel for the petitioner has placed reliance on AIR 1963 SC 1909 State of Punjab to urge that since the petitioner was not a party in the earlier proceedings and order prejudicial to him had been passed, thereforee, it could challenge the same on these collateral proceedings by way of writ petition. Leaving this objection on the part of the respondent No.3 apart, I find that the petitioner in substance is trying to assert his proprietory rights under the flat buyer agreement and seek their adjudication and determination in these proceedings. This cannot be permitted in writ jurisdiction. It would be open for the petitioner to seek his remedies against respondent No.3 in the civil forum if so advised.

7. Learned counsel for the NDMC submits that certain proceedings have been initiated against respondent No.3 since he had failed to complete requisite formalities with regard to grant of connection and to furnish documents. It would be open for the respondents to proceed in accordance with law with regard to completion of all requisite formalities for the grant and continuation of the electric connection. It is clarified that it would be open for the respondent to proceed against respondent No.3 in case they find there has been or there is any breach of any of the conditions for the grant of the electric connection.

Writ petition is dismissed with aforesaid directions and observations.