Delhi High Court: In two cross letter Patents appeal, one by the petitioner/appellant for the enhancement of costs imposed upon the Municipal Corporation of Delhi (MCD) and other by the MCD setting aside of the compensation imposed upon it, the division bench of Satish Chandra Sharma, CJ. and Subramonium Prasad, J. while enhancing the compensation awarded to the appellant, observed that the Municipal Corporation was constituted for the precise purpose of providing basic amenities to the citizens, thus, it cannot shirk off its responsibility on the ground that society was once unauthorised or by citing financial constraints.
In this case, when the appellant’s property was constructed, it was placed at the road level. However, subsequently, the MCD has re-laid the adjoining road and each time the road was repaired/re-constructed, the level of the road rose by about 2½ feet. Due to this, the appellant’s house has gone below the road level, thus, the rain water gets collected in the house which has caused damage to the house.
The Court noted that the issue has been under consideration before the Court since 2011 and several status reports have been filed. Also, the MCD has been adamant about not bringing down the road level on the ground that, if it is done then it will create problems for other house owners. Further, a Status Report had been filed on 24.05.2011, admitted that since 1997, roads were repaired many times and because of which the roads have elevated, and that out of 101 properties in the area, 82 properties are at the road level, meaning thereby that the residents have demolished and reconstructed the properties by bringing it to the road level and 11 properties, which are not demolished and re-constructed, are below the road level.
The Court further noted that the MCD admitted that 11 houses were facing the same issue. However, it diverted the blame on the Petitioner and the Delhi Jal Board, by stating that the problem has been caused as Azad Nagar was an illegal/unregularized society. The Court rejected this argument by observing that a sizeable population of Delhi lives in areas designated by the Government as “unauthorized colonies”, which did not feature in the original development area of Delhi or were areas which were not zoned for residential use. Thereafter, the Government of NCT Delhi initiated the regularisation process in the 1970s, then the early 1980s, with the aim of including these societies within the development plans of the city. Thereby, the appellant’s colony was regularised in 1987.
Moreover, the Court viewed that the locality of Azad Nagar faces the issue of waterlogging because the MCD has indiscriminately repaired the roads, without following basic care and caution and this has compelled individuals, who did not have the finances to raise the level of their houses to sell their houses to builders, thus, it rejected the argument that the issue of waterlogging has occurred due to the status of the colony, further, the MCD needs to ensure that other societies which were “unauthorised” and have subsequently been regularised are provided with the requisite sanitation facilities, functional drainage system, roads, and other similar infrastructural amenities.
The Court strongly objected to the MCD’s suggestion that the petitioner should apply for a fresh sanction plan and rebuild her house, as MCD is a public body duly enacted for the benefit of the public at large, thus, it cannot reasonably expect individuals to reapply for sanction plans, and further build their houses from scratch. Moreover, the Court viewed that it should not be the prerogative of a few, with the requisite finances, to enjoy the basic amenities as basic as sanitation, functional drainage systems, and mindfully constructed roads.
The Court observed that it is unfortunate that not only has the MCD created the issue of waterlogging but also aggravated the situation by not taking appropriate measures to avoid choking drains during monsoon. Further, it observed that “it is well settled that it is the duty of the MCD to ensure that there is no water logging and proper storm water drains are constructed, and it cannot pass the buck to the residents to contend that since the storm water drains are clogged nothing can be done by the MCD” therefore, MCD has failed in discharging its duties.
The Court placed reliance on the ruling in Municipal Council, Ratlam v. Vardichan, (1980) 4 SCC 162, wherein the Court held that a responsible municipal council constituted for the precise purpose of preserving public health and providing better finances cannot run away from its principal duty by pleading financial inability.
The Court took note of the ruling in Municipal Corpn. of Delhi v. Subhagwanti, (1966) 3 SCR 649 wherein the Court while dealing with the issue as to whether MCD can be held liable to pay compensation in a writ petition, observed that liability to pay compensation arises “in a situation where the circumstances surrounding the thing which causes the damage are exclusively under the control or management of the defendant or his servant and the happening is such as does not occur in the ordinary course of things without negligence on the defendant’s part.”
The Court also took note of various Supreme Court’s rulings like Nilabati Behera v. State of Orissa, (1993) 2 SCC 746, Municipal Corpn. of Delhi v. Sushila Devi, (1999) 4 SCC 317 and S Sube Singh v. State of Haryana, (2006) 3 SCC 178, wherein the Court observed that “it is well-settled that award of compensation against the State is an appropriate and effective remedy for redressal of an established infringement of a fundamental right under Article 21, by a public servant”, and observed that a responsible Municipal Corporation consisted for the precise purpose of providing the basic public goods cannot shirk off its responsibility by citing financial constraints. Further, the MCD has been grossly negligent in its conduct, and to do complete justice, providing monetary compensation to the appellant is the most viable mode of redress available.
Moreover, it was observed that a fresh evaluation indicates that the appellant would have to spend close to Rs. 21.20 lakhs to carry out the necessary repairs. Further, the appellant is 80 years old and has been pursuing this litigation for over a decade, has suffered loss of her material possessions, and has undergone immense agony and anxiety for a prolonged period, thus, the Court enhanced the compensation awarded to the appellant by a sum of Rs. 9,00,000/ and rejected the challenge by the MCD to the impugned order awarding compensation of Rs. 3,00,000/- to the appellant.
[Leela Mathur v. Municipal Corporation of Delhi, 2022 SCC OnLine Del 2731, decided on 02.09.2022]
Advocates who appeared in this case:
For Appellant: Senior Advocate Akhil Sibal
For Respondents: Advocate Tushar Sannu,
Advocate Pooja Gupta
Advocate Ajjay Aroraa
Advocate Anuj Bhargava