Delhi District Court
Sh. Virender Singh vs Sh. Rames H Tanwar on 30 April, 2010
Suit No. 26 6 / 0 9
IN THE COURT OF SH. SANJAY SHARMA, JSCC CUMASCJ CUM
GUARDIAN JUDGE (WEST): DELHI
Suit No. 266 / 0 9
Unique Case ID No. 024 0 1C 0 4 1 8 0 4 2 0 0 3
Sh. Virender Singh,
S /o Sh. Jaidart h Singh,
R/o WZ1090 J,
Basai Darap u r,
New Delhi 15.
......Plaintiff
Versus
1.Sh. Rames h Tanwar, S /o Sh. Dalip Singh, R/o WZ523 / 1 A, Basai Darap u r, New Delhi 110015.
2. Municipal Corporation of Delhi, Through its Commissioner, Town Hall, Chand ni Chowk, Delhi.
3. Dy. Commis sioner of Police (West), Rajouri Garden, New Delhi 110027.
4. Sh. S.P. Singh, Sub Inspector, P.S. Moti Nagar, Through S.H.O., Moti Nagar, New Delhi.
5. Sh. Manoj Kumar Sachdeva, S /o Sh. H.L. Sachdeva R/o WZ523 / 3 , Basai Darap u r, New Delhi.
6. Smt. Swara n Kanta, W/o Sh. H.L. Sachdeva, R/o WZ523 / 3 , Basai Darap u r, New Delhi. .....Defenda n t s Date of institution of the suit : 06.05.199 8 Date on which order was reserved : 28.04.201 0 Viren d e r Sing h v. Rame s h Tan w a r & Ors. Page 1/ 13 Suit No. 26 6 / 0 9 Date of decision : 30.04.201 0 J U D G M E N T
1. The plaintiff filed a suit for perma ne n t and mand a tory injunctio n against the defenda n t s for a decree of perm a n e n t injunction restraining the defenda n t no. 1 from raising illegal constr u ction in the property no. WZ523 / 1 A, Basai Darap u r, New Delhi (Hereinafter 'the suit property') and a decree of mand a tory injunction directing the defenda n t no. 2 /MCD to demolish the una u t h o rized constr u ction in the suit property.
2. The case set out in the plaint is that the plaintiff is residing along with his family members at WZ1090 J, Basai Darap u r, New Delhi 15. It is stated that there was a tin shed over the suit land. According to the plaintiff, the land under n e a t h the said tin shed (In short 'the suit land') belonged to the defenda n t no. 2 and the defenda n t no. 1 had encroac hed upon the suit land by erecting a tin shed thereu po n as shown in yellow colour in the site plan. It is stated that the defenda n t no.1 had removed the said tin shed in order to raise constr uction and erected three pillars between point A and B and constr uc ted a wall between them and further, encroac he d upon the governme n t land as shown in blue colour in the site plan. It is stated that the defenda n t no.1 was intending to encroach upon governme n t land as shown in red colour in the site plan.
3. According to the plaintiff, earlier Sh. Sures h Kumar Tanwar / t h e defenda n t no.1's brother had constr ucted a commercial building over the plot no. 523 / 2 4 , Basai Darap u r , New Delhi. The plaintiff brought the said matter to the knowledge of the concerne d aut horities vide letters dated 09.04.19 9 7, 12.05.1 99 7, 17.05.199 7, 19.05.19 9 7 and 14.06.19 9 7 . It is stated that the concerned authorities had not taken any action and therefore, the plaintiff brought the matter to the kind attention of the Hon'ble Lt. Governor vide letter dated 08.07.19 9 7. It is stated that he had received letters dated 22.07.199 7, 29.01.19 9 8 and 27.04.19 9 8 from the office of Hon'ble Lt. Governor intimating that the said una u t h o rized Viren d e r Sing h v. Rame s h Tan w a r & Ors. Page 2/ 13 Suit No. 26 6 / 0 9 constr u ction was booked on 24.06.19 9 7 but the defenda n t no.2 failed to take any action against the said una u t h o rized constr uc tion.
4. The case of the plaintiff is that the defenda n t no. 1 had encroac he d upon the governme n t land and started illegal constr uction in violation of provisions of D.M.C. Act. The plaintiff had written letter to the defend a n t no. 2 on 27.04.19 9 8 and further, letters dated 30.04.199 8 and 04.05.19 9 8 to the Hon'ble Lt. Governor regarding the said illegal constr u ction and encroach m e n t over plot no.523 / 1 A, Basai Darap u r, New Delhi and forwarded a copy thereof to the defenda n t no. 3 and P.S. Moti Nagar. It is stated that on 05.05.199 8, the defenda n t no. 4 had visited the plaintiff's residence in his abse nce and threate ne d his wife to stop the plaintiff from making complaint s against the defenda n t no. 1 or Sh.Sure s h Tanwar. The defenda n t no. 2 had not taken any action against the said una u t h orized constr uc tion and encroac h m e n t upon the suit land and therefore, the plaintiff filed this suit for perma n e n t and man d a tory injunction agains t the defenda n t s .
5. In his written stateme n t, the defenda n t no. 1 controvert ed the avermen t s made in the plaint and raised preliminary objection that the plaintiff suppres se d material facts and had not approac hed the court with clean hand s . It is contended that the suit was a counter blast to the Suit no.351 / 9 6 filed by Mahes h Tanwar / t h e defenda n t no.1's brother against the plaintiff in order to compel him to withdraw the said suit. It is contended that the plaintiff was constr uc ting his property adjacen t to the suit property in April, 1996 and the said Mahes h Tanwar filed a civil suit wherein in the written stateme n t the plaintiff had stated that no sanction was required from MCD as the premises was situate d in the extended Abadi of the revenue estate of village Basai Darap u r, and even if village Basai Darap u r was declared urba nized by Hon'ble High Court of Delhi. It is contended that the defenda n t started repair / c o n s t r u c tio n work in the suit property and the plaintiff is taking a contrary plea.
Viren d e r Sing h v. Rame s h Tan w a r & Ors. Page 3/ 13 Suit No. 26 6 / 0 9
6. In Reply on merits, the defenda n t no.1 stated that the house on the plot no. WZ523 / 1 , Basai Darap u r, Delhi is in existence for the last 25 years and asses se d to House Tax. It is stated that House Tax is being paid regularly since 1971 72.
7. It is denied that the defenda n t no. 1 had encroac hed upon any governme n t land. It is stated his ancestor s had various properties in village Basai Darap u r which were partitioned in 1975 by way of a registered partition deed and the suit property meas u ri ng 187 squ are yards had come to the share of the defenda n t no.1's mother / S m t . Mukti Tanwar. It is contended that the plaintiff had encroached upon the road as shown in green colour in the site plan, and thereby reducing the width of the mu nicipal road. It is contended that in the earlier suit, the plaintiff had admitted that he owned 62 square yards of land whereas he had constr u cte d his house on more than 100 sq. yds of land. It is stated that the property no.523 / 1 , Basai Darap u r , Delhi was in a dilapidated condition, inhabitable, and required immediate repairs. It is stated that the defenda n t no.1 had informed the MCD vide letter dated 30.03.1 9 9 8 althoug h there was no need for seeking any permission from the MCD as the said property was situate d in extended Abadi of Village Basai Darap u r, Delhi. It is denied that there is any plot bearing No. 523 / 1A in Village Basai Darap u r, Delhi. It is stated that the defenda n t no. 1 had retired from AIR Force after serving for more than 27 years. It is stated that the defenda n t was carrying out repairs for making his house habitable for his residence & not raising any illegal constr uc tion therein.
8. In the written state me n t, the defenda n t no. 2 /MCD raised a preliminary objection that the suit is barred Under Section 477 / 4 7 8 of Delhi Municipal Corporation Act. It is stated that the suit is pre mat u re as the defenda n t no.2 initiated action against una u t h o rized constr uc tio n in the property no.WZ 523 / 1A, Basai Darap u r , New Delhi. It is stated that the suit property was booked vide file no.B / U C / WZ 98 / 1 4 9 dated 25.05.19 9 8 and a show cause notice under Section 343 / 3 4 4 , DMC Act was issued against the owner / b u ilder for erecting 10 colum n s and brick Viren d e r Sing h v. Rame s h Tan w a r & Ors. Page 4/ 13 Suit No. 26 6 / 0 9 walls at the ground floor. It is stated that the owner / b u il der has been asked to show cause as to why the said una u t h o rized constr u ction be not demolished within 3 days from the date of the service of the show cause notice. It is stated that appropriate action for demolition of the un a u t h orized constr uc tion would be taken as per law on receipt of reply.
9. The defenda n t no. 5 and 6 were impleaded as defenda n t s in the present suit vide order dated 15.12.20 0 3.
10. In their joint written state me n t, the defenda n t no. 5 and 6 stated that have purc h a s e d the property no.WZ 523 / 1 , Part I, Basai Darap u r , Delhi meas u ri ng 110 sq. yards out of 187 sq. yards vide sale docu me n t s on 31.7.1998 and since then, they are in physical posses sion of the property. It is stated that due to the present suit, the entire locality throw / d u m p their garbage in the said property to hu miliate them and resulta n tly, the said plot has become a dustbin for the entire locality. It is stated that the defenda n t no. 5 and 6 have every right to constr uc t or use the said plot in any man ner. It is stated that except the suit plot, there is no vacant plot in the locality and there are double / t ri ple storeyed buildings in the said area. The said plot is situa ted in Lal Dora and there is no need for obtaining any permis sion from any aut hority.
11. In the replication to the written state me n t of defenda n t no. 5 & 6, the plaintiff controvert ed the contention s and reaffirmed the averme n t s made in the plaint.
12. On the pleadings of the parties following issues were framed on 25.10.20 0 4:
1. Whether the suit of the plaintiff is barred under Sectio n 477 / 4 7 8 of the DMC Act? OPD
2. Whether the plaintiff is entitled to the decree of perman e n t injuncti o n as prayed for? OPP
3. Whether the plaintiff is entitled to the decree of mandat ory Viren d e r Sing h v. Rame s h Tan w a r & Ors. Page 5/ 13 Suit No. 26 6 / 0 9 injuncti o n as prayed for? OPP
4. Relief.
13. In the evidence, the plaintiff (PW1), the defenda n t no. 5 (DW1) and Sh. Harba n s Lal Sachdeva - husb a n d of the defenda n t no. 6 (DW2) filed their examination in chief by way of affidavit.
14. In his cross examina tion, the plaintiff (PW1) stated the property no. 523 / 1A, Basai Darap u r, Delhi belonged to the defenda n t no.1. He stated that the area in which the suit property falls is urba nized. He stated that he had not served the notice upon the MCD under Section 477 / 4 7 8 of DMC Act. He stated that the MCD has booked the suit property.
15. In his cross examina tion, the defenda n t no.5 (DW1) stated that no permis sion required as the suit property falls in Lal Dora. He stated that the plaintiff called the PCR when he was raising constr uc tion in the suit property. He stated that the defenda n t no. 1 had recons tr uc te d the suit property after demolishing the old constr u ction. He stated that he had started constr u ction and erected one or two pillars but the plaintiff got the said constr uc tion stopped with the help of the police. He stated that he is paying the house tax of the suit property.
16. In his cross examina tion, Sh. Harba n s Lal Sachdeva / DW 2 stated that the suit property had been booked by the MCD. He denied the suggestion that the MCD had given notice for demolition of the suit property.
17. I have carefully peruse d the written argume n t s filed by the plaintiff and the defenda n t no. 5 and 6 in support of their respective case.
ISSUE NO.1
18. Onus to prove the issue no.2 was upon the defenda n t no. 2 / MCD.
Viren d e r Sing h v. Rame s h Tan w a r & Ors. Page 6/ 13 Suit No. 26 6 / 0 9 The defenda n t no. 2 / MCD contended in its written state me n t that the suit is barred under Section 477 and 478 of the DMC Act. It is evident from a bare reading of Sub section (3) of Section 478 of the Delhi Municipal Corporation Act, 1957 that it saves the suit in which the only relief claimed is an injunction of which the object would be defeated by giving of the notice or the postpon m e n t of the institution of the suit. This is a suit for perm a n e n t and mand a tory injunction and therefore, it is not barred under Section 478, DMC Act. Accordingly, the issue no.1 is decided in favour of the plaintiff and against the defenda n t no. 2.
ISSUE NO.2 and 319. Issue no.2 and 3 are inter connected and therefore, they are taken up together for decision.
20. In his written argume n t s , the plaintiff sub mitted that the defenda n t no.1 had raised una u t h o rized constr uc tion and encroac hed upon the governme n t land as shown in yellow colour and blue colour in the site plan Ex. PW 1 / 1. It is sub mitted that there was a tin shed in the suit property and the defenda n t no.1 removed the said tin shed and raised perma ne n t struct u r e in the suit property. It is sub mitted that the plaintiff had informed the defenda n t no.2 regarding the said un a u t h orized constr u c tion and encroach m e n t upon the governme n t land vide letter dated 27.04.19 9 8. It is submitted that the plaintiff had informed the Hon'ble L.G. vide letter dated 30.04.199 8 and letter dated 04.05.19 9 8. It is sub mitted that the defenda n t no.2 / M CD had not taken any action against the said una u t h o rized constr u ction in the suit property. It is sub mitted that the defenda n t no.1 had sold the suit property during the course of trial to the defenda n t no.5 and 6. It is sub mitted that the defenda n t no.5 and 6 have failed to prove their case that the suit property is situated in Lal Dora. It is submitted that the defenda n t no.5 and 6 have failed to prove that the suit property is in existence for the last 30 years and asses se d to house tax since 1971 72. It is sub mitted that the defenda n t no.2 / M CD stated in its written Viren d e r Sing h v. Rame s h Tan w a r & Ors. Page 7/ 13 Suit No. 26 6 / 0 9 state me n t that 10 colum n s and brick wall at Ground floor were erected in the suit property and the suit property no. WZ523 / 1 A, Basai Darap u r, Delhi had been booked vide file no.B / U C / WZ / 9 8 / 1 4 9 dated 25.05.19 9 8, and a show cause notice under Section 343 / 3 4 4 , DMC Act had been issued against the owner / b u il der to show cause within 3 days from the receipt of the notice as to why the said una u t h o rized constr u ction be not demolished, and the MCD has not taken any action against the said una u t h o rized constr uc tion till date. It is prayed the suit for perma ne n t and mand a tory injunction be decreed and the defenda n t no.2 be directed to demolish the una u t h o rized constr uc tion.
21. In their written argu me n t s , the defenda n t no.5 and 6 sub mitted that the present suit was a counter blast to the suit no.351 / 9 6 filed by Mahes h Tanwar / t h e defenda n t no.1's brother against the plaintiff to compel him to withdraw the said suit. It is sub mitted that the plaintiff can not be allowed to approba te and reprobate as he had taken the plea in the said suit that his property was situate d in Lal Dora and no sanction was required from MCD for raising constr uc tion. It is further sub mitted that the defenda n t no.5 and 6 could not carry out repairs in the suit property due the present suit and the inhabita n t s of the locality are throwing their garbage in their property. It is sub mitted that there is no vacant plot in the locality and the inhabita n t s have raised multi storyed buildings in their plots. It is sub mitted that the suit property is in existence for the last 30 years and asses se d to house tax. It is sub mitted that the plaintiff had encroac he d upon the public land as shown in green colour in the site plan and reduced the width of the road. It is sub mitted that the plaintiff stated in the previous suit that area of his house is 62 square yards whereas he had constr uc te d his house on more tha n 100 square yards area. It is stated that the property no. 523 / 1 , Basai Darap u r , Delhi was constr u cted long back and needed repair for making it habitable. It is sub mitted that the defenda n t no.1 had informed the MCD vide letter dated 30.03.199 8 regarding the dangerou s condition of the property and there was no need for obtaining any permission from MCD as the suit property is situate d in extended Viren d e r Sing h v. Rame s h Tan w a r & Ors. Page 8/ 13 Suit No. 26 6 / 0 9 Abadi of revenue estate of village Basai Darap u r, Delhi.
22. Onus to prove the issue no.2 and 3 was upon the plaintiff.
23. It is specific case of the plaintiff that the defenda n t no. 1 had removed the tin shed and erected 3 pillars between point A and B and constr u cte d a wall between them to constr u ct a perma n e n t struct u r e in the suit property without permission of the defenda n t no.2. It is further case of the plaintiff that the defenda n t no.1 had encroached upon the public land belonging to the defenda n t no.2 / M CD as shown in yellow and blue and colour in the site plan of the suit property Ex. PW1 / 1 .
24. The defenda n t no.2 / M CD has not stated in his written stateme n t that the land under ne a t h the suit property as shown in yellow and blue colour belonged to them. Moreover, the plaintiff has not led any evidence to prove that the defenda n t no.1 had encroac he d upon public land.
25. The defenda n t no.1 in his written stateme n t has not disputed the avermen t s made in para no.4 and 7 of the plaint that he had erected three pillars between point A and B and constr u c te d a wall between them as shown in the site plan Ex. PW 1 / 1 on 27.04.19 9 8.
26. The defenda n t no.1 as well as the defenda n t no.5 and 6 conten de d that the house on the property no.WZ 523 / 1 , Basai Darap u r, Delhi is in existence for the last 30 years and asses se d to house tax since 1971 72. The defenda n t no.5 and 6 has neither stated nor proved the extent of accom mod a tion of the said house nor led any evidence to prove the extent of accommod a tion asses se d to house tax.
27. The defenda n t no.1 as well as the defenda n t no.5 and 6 conten de d that they started repair / r e co n s t r u c tion in suit property as the suit property was in dilapidated condition and inhabita ble. There is vast difference between repair and reconstr u c tion. Repair of the property is permis sible under the Building Bye laws and not the recons tr uc tio n.
Viren d e r Sing h v. Rame s h Tan w a r & Ors. Page 9/ 13 Suit No. 26 6 / 0 9 They have not stated the nat ure of the reconstr uc tion in the suit property. It is appare n t that erection of pillars and walls in the suit property cannot be deemed as repair of the suit property as it falls in the category of constr u c tion of the suit property. It is contended that the defenda n t no.1 had informed the defenda n t no.2 / M CD about the dangerou s condition of the building and need of repair to make it habitable vide letter dated 30.03.19 9 8. The defenda n t no.5 and 6 have not proved the said letter to the defenda n t no.2 / M CD.
28. The defenda n t no.5 / DW 1 admitted in his cross examina tion that the defenda n t no.1 was raising constr u ction in the suit property. He admitted that the defenda n t no.1 had reconstr u c te d the suit property after demolishing the old struct u re.
29. In his cross examina tion, the defenda n t no.5 / DW 1 admitted that he was raising constr uc tion in the suit property and the plaintiff called the PCR. He admitted that he started the constr uction and made 1 2 pillars but the plaintiff got the said constr uc tion stopped.
30. The defenda n t no.1 as well as the defenda n t no.5 and 6 had raised constr u ction in the suit property without sanctioned plan. The constr u ction in the suit property is not covered by any sanctioned plan.
31. The defenda n t no.2 / M CD stated in its written stateme n t that the suit property no.WZ 523 / 1A, Basai Darap u r , Delhi was booked vide file no.B / U C / WZ 98 / 1 4 9 dated 25.05.19 9 8. It is stated that a show cau se notice u / s 343 / 3 4 4 , DMC Act was issued against the owner / b u ilder for erecting 10 colum n s and brick walls at the ground floor.
32. Sh. Harba n s Lal Sachdeva / DW 2 admitted in his cross examina tion that the suit property was booked by the MCD.
33. It is proved on record that the defenda n t no.1 had raised three pillars at A and B and constr u cted a wall between them as shown in the site plan Ex. PW 1 / 1. It is further proved that the defenda n t no.1 had re Virend e r Singh v. Rame s h Tan w a r & Ors. Page 10/ 13 Suit No. 26 6 / 0 9 constr u cte d the suit property after demolishing the old struct u re. It is proved on record that the defenda n t no.5 and 6 raised pillars and constr u ction in the suit property after 31.07.19 9 8. It is further proved that the property was booked by the MCD for un aut horized constr uc tion on 25.05.199 8. It is proved that the defenda n t no.5 and 6 have no sanctioned plan from the MCD for raising constr uc tion in the suit property. It is proved that the suit property is not covered by any sanctioned plan. It is proved that the defenda n t no.1 as well as the defenda n t no.5 and 6 raised una u t h o rized constr uc tion in the suit property without obtaining sanction or permission of the MCD. The defenda n t no.5 and 6 have no right to constr u ct the suit property without sanctioned plan from the MCD. Accordingly, the defenda n t no.5 and 6 are liable to be restrained by way of a decree of perma n e n t inju nction to constr u ct the suit property without sanctioned plan.
34. So far as contention that the suit property is situated in Lal Dora is concerned, the defenda n t no.5 and 6 have not led any evidence to prove that the suit property is covered under Lal Dora.
35. So far as contention that the plaintiff admitted in his written state me n t in previous suit no. 351 / 9 6 filed by Mahes h Tanwar / b r o t h e r of the defenda n t no.1 that the there was no need to seek any permissio n from the MCD as the suit property is situa ted in the extended Abadi of revenue estate of village Basai Darap u r, Delhi is concerned, it can be said that no advant age can be derived from wrong admission of a fact. Village Basai Darap u r is an urba nized village. Provisions of DMC Act apply to the said area.
36. It is the admitted case of the defenda n t no.1 as well as the defenda n t no.5 and 6 that suit property is asses se d to house tax since 1971 72 and they have been paying house tax since then. DW 2 also stated that he is paying house tax of the property.
37. So far as contention that other residents of the locality have Virend e r Singh v. Rame s h Tan w a r & Ors. Page 11/ 13 Suit No. 26 6 / 0 9 constr u cte d multi storeyed building in the locality is concerned, it can be said that there can be equality in observance of laws and not in violation of law.
38. The defenda n t no.5 and 6 can't be permitted to constr uc t the suit property una u t h o rized ly becau s e others resident s of the area have constr u cte d without sanctioned plan.
39. It is proved on record that the suit property was constr u cte d without sanctioned plan. It is proved that that the defenda n t no.2 / MCD booked the una u t h o rized constr u ction in the suit property on 25.05.19 9 8. The defenda n t no.2 has not taken any action against the said una u t h o rized constr u ction.
40. Therefore, The defenda n t no.2 / M CD can be directed by a decree of man d a tory injunction to perform its stat utory obligations and enforce the rule of law.
41. It is well settled that a demolition order cannot be passed again st an owner without affording him an opport u nity of being heard. There is nothing on record that any notice was served upon the defenda n t no.5 and 6 requiring them to show cause as to why una u t h o rized constr u ction in the suit property should not be demolished. The defenda n t no.5 and 6 are entitled to an opport u nity of being heard before the demolition order against the un aut horized constr uc tion in the suit property.
42. Accordingly, the MCD can be directed to pass demolition order after giving an opport u nity of being heard to the defenda n t no.5 and 6.
43. In view of the aforesaid discus sion, the suit for perma ne n t and man d a tory injunction is decreed in the following terms.
A. A decree of perma ne n t injunction restraini ng the defenda n t no.5 and 6 from raising any una u t h o rized constr uction in the property Virend e r Singh v. Rame s h Tan w a r & Ors. Page 12/ 13 Suit No. 26 6 / 0 9 no. WZ523 / 1A, Basai Darap u r, Delhi without sanctioned plan is passed in favour of the plaintiff and against the defenda n t s . B. A decree for mand a tory injunction directing the defenda n t no.2 / M CD to pass appropriate orders including demolition orders against the una u t h o rized constr u ction in the property no. WZ 523 / 1A, Basai Darap u r, Delhi after giving an opport u nity of being heard to the defenda n t no.5 and 6.
C. The defenda n t no.2 / M CD is directed to complete the entire process within 3 month s from today and sub mit compliance report. D. No order as to costs.
44. Decree Sheet be prepared accordingly.
45. File be consigned to Record Room.
Annou nced in the open court today the 30 th April, 2010.
(SANJAY SHARMA)
JSCC cum ASCJ cum
Guardia n Judge (West),Delhi
30.04.2 0 1 0
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