Delhi District Court
Sh. Rakesh Kumar Srivastav vs North Delhi Municaipal Corporation on 16 August, 2017
IN THE COURT OF SH. HARISH KUMAR : ADDL. DISTRICT
JUDGE -13 : CENTRAL DISTRICT ; TIS HAZARI COURTS : DELHI
CS NO. 11216/16 (Old No. 276/16)
In re :
1. Sh. Rakesh Kumar Srivastav
2. Sh. Bansi Dhar Srivastav
Both S/o Late Sh. Murlidhar Srivastav
R/o 330, Kucha Ghasi Ram,
Chnadini Chowk,
Delhi - 110006
........ Plaintiffs
Versus
1. North Delhi Municaipal Corporation
Civic Centre, Minto Road,
Delhi
2. Sh. Ram Dev Sharma
S/o Sh. Satya Narain Sharma,
3. Smt. Nisha Sharma
W/o Sh. Ram Dev Sharma
Both R/o 487, Haveli Haiderkuli,
Chandini Chowk,
.......... Defendants
Date of institution of present suit : 18.11.2002
Date of receiving in this court : 08.03.2016
Date of hearing arguments : 25.07.2017
Date of Judgment : 16.08.2017
Suit for Injunction
JUDGMENT
Plaintiffs have instituted the present suit seeking relief of permanent injunction against defendants in respect of roof of the Chatta and unauthorised construction over the Chatta/common passage existing between CS No. 11216/16 Rakesh Kumar Srivasatav & Anr vs. North Delhi Municipal Corporation & Ors. Page No. 1 of 18 the properties bearing no. 329 and 331 to 337, Kucha Ghasi Ram, Chandni Chowk, Delhi-110 006
1. Brief fact as set out in the plaint is that plaintiffs are co-owners of property no. 330, Kucha Ghasi Ram, Chandni Chowk, Delhi-110 006. The only passage to the property of the plaintiffs is through a common passage/public street commonly known as Chatta. The said Chatta exist in between property no. 329 and property no. 331. In property no. 329, Kucha Ghasi Ram, the MCD Primary School has been running for the last over 50 years and the same is commonly known as MCD School Building. On the other side of the common passage/Chatta there is property no. 331 to 337 which is now owned by defendants no. 2 and 3. There is also a passage from the backside to property no. 342. Admittedly the part of the common passage/Chatta in front side and backside is covered with pucca roof and on the remaining part of the Chatta there is an iron jaal.
2. It has been further submitted that both the iron jaal and the pucca roof over the common passage/Chatta were opened to sky. There are number of windows of the MCD Primary School Building on the ground floor as well as on the first floor were opening towards the Chatta. There has also been two doors of the MCD Primary School Building on the first floor which were opening on the roof of the common passage/ Chatta and the said roof had always been in exclusive use of the school. Some windows on the ground floor of property no. 331 were also opening towards the common passage/Chatta. There has also been a small shop/khokha on the front side of the common passage/ Chatta which has been in possession of the plaintiffs for the last over 50 years in which the plaintiffs and their predecessor have been selling earthen wares (i.e. mathkas, surahis etc.). On the back of the common passage beyond the Chatta there are two small latrines and a small store in possession of the plaintiffs for the last over 50 years. All the electric, water and sanitation lines going to the plaintiffs property are from the said common passage. In fact, the CS No. 11216/16 Rakesh Kumar Srivasatav & Anr vs. North Delhi Municipal Corporation & Ors. Page No. 2 of 18 said common passage/ Chatta is providing only ingress and egress to the plaintiffs property and there is no other passage to their property.
3. It is further averred that sometime back in the year 1995, the defendants no. 2 and 3 purchased property no. 331 to 337 from Smt. Weeran Wali and Sh. Rajinder Sharda. plaintiffs came to know that said Smt. Weeran Wali and Rajinder Sharda purchased the said property no. 331 to 337 on 28.09.1990 impart by way of two Sale Deeds. The description of the property no. 331 to 337 as was given in the aforesaid Sale Deeds of 28.09.1990 shows that the said property consist of ground floor having six shops and first floor having ten rooms, bathrooms and a big open courtyard and there was only one room on the second floor and the remaining part of the second floor was open terrace. The similar construction was also shown in the House Tax Record of the said property no. 331 to 337.
4. It is further averred that after purchasing the said property the defendant no. 2 who is a known builder of unauthorised markets in walled city area got vacated the portions of the property from the tenants on the ground floor and the first floor and started raising huge unauthorised construction without obtaining any sanction plan. He started digging huge basement and constructed number of shops, godowns on the ground floor, basement floor, first floor, second floor and third floor of the property no. 331 to 337. He also started creating uncalled for problems and hindrances in the use of the common passage/Chatta to the plaintiffs and other occupants of property no.
330. The plaintiffs, thus, filed a suit no. 900/96 for injunction in the civil court which was assigned to the court of Sh. Pawan Kumar, the then Sub Judge, Delhi where report was filed by Zonal Engineer (Building).
5. It has been further submitted that thereafter, the defendant no. 2 filed a suit for injunction against the MCD wherein the present plaintiffs were not made party. A detailed report was submitted by the MCD Authorities before the Ld. Civil Judge along with copy of FIR lodged by the Deputy CS No. 11216/16 Rakesh Kumar Srivasatav & Anr vs. North Delhi Municipal Corporation & Ors. Page No. 3 of 18 Commissioner MCD, a copy of the show cause notice and a copy of demolition notice served by the Zonal Engineer (Building) upon the present defendants no. 2 and 3 . When the defendant no. 2 (plaintiffs therein) failed to obtain an interim injunction, he withdrew the said suit and filed an appeal in the court of MCD Tribunal against the demolition order/notice.
6. It is further averred that as a counter blast to the filing of the suit by the present plaintiffs, the present defendants no. 2 and 3 filed a suit no. 174/97 wherein they sought injunction against the present plaintiffs and also sought the removal/demolition of old shop of the plaintiffs, which was dismissed by the Court. It is further averred that the defendants no. 2 and 3 have illegally laid iron girders across the common passage by making holes in the wall of the MCD School Building (property no. 329) and laid another roof just about 1 feet above the existing original roof and iron jaal of the Chatta. Over the said roof so raised/laid illegally by the defendants no. 2 and 3 over the iron girders they also made further unauthorised construction of three storeyed building above it by encroaching upon the common passage/Chatta by illegally alleging the common passage/ Chatta as part of their property no.
331. In fact, the common passage/ Chatta has never been a part of property no.
331.
7. It has been further pleaded that the entire construction raised by the defendant no. 2 and 3 over the common passage/Chatta is wholly illegal, unauthorised and without any sanction from any municipal authorities. All the windows and door opening towards the Chatta on the first floor of the said School Building have been illegally and without any authority closed by the defendants no. 2 and 3. It is further averred that Ld. MCD Tribunal ordered the appellants (defendants no. 2 and 3) to maintain status quo but they continued to make unauthorised construction and thereby contempt petition was filed by the MCD against defendants no. 2 and 3.
8. It has been further averred that the Zonal Engineer Building and CS No. 11216/16 Rakesh Kumar Srivasatav & Anr vs. North Delhi Municipal Corporation & Ors. Page No. 4 of 18 the JE of the City Zone were mixed up and were under influence of the defendants no. 2 and 3 and instead of taking action of demolition of the unauthorised construction illegally made by the defendants no. 2 and 3, they issued a notice of demolition under Section 348 and 349 of the DMC Act in the name of the plaintiffs no. 2 and defendant no. 2 thereby the existing old roof and the iron jaal of the common passage was threatened to be demolished alleging it to be in dangerous condition.
9. It has been further submitted thereafter plaintiffs filed a civil writ petition against the said demolition notice. The defendants no. 2 and 3 have threatened to sell/transfer the property which has illegally and unauthorisedly constructed by them over the common passage area. The status report submitted by the MCD on 09.10.2001 in the writ petition is also contrary to the earlier status reports filed by the MCD in the civil court on 29.11.1996. It is further averred that order passed on 17.08.2001 by Sh. S.M. Hasan is not only illegal but is also void.
10. It has been further submitted that writ petition filed by the plaintiffs was disposed of with direction to approach Civil Court as disputed question of acts were involved. Hence, plaintiffs filed the present suit for restraining the defendants from demolishing the original structure i.e. the original roof and the iron jaal over the common passage and also from regularizing the encroachment made and the unauthorised construction made by the defendants and from selling or disposing of or transferring the possession of any part of the common passage area.
11. Upon service of summons, defendant no. 1 Municipal Corporation of Delhi filed written statement raising preliminary objection that suit is barred by the provisions as contained under Section 477/478 of the DMC Act, for want of service of statutory notice upon the answering defendant; that the suit of the plaintiffs is barred by the provisions as contained CS No. 11216/16 Rakesh Kumar Srivasatav & Anr vs. North Delhi Municipal Corporation & Ors. Page No. 5 of 18 under Section 10 of the CPC i.e. Principles of Resjudicata as the similar dispute in respect of the suit property between the same parties was pending before Ld. Civil Judge. It has been submitted that on 11.06.2001, the suit property bearing no. 331 to 337, Kucha Ghasi Ram, Chandni Chowk, Delhi- 110 006 was inspected by the area official and consequently, a notice under Section 348 of the Act, was issued and served upon the occupier of the said portion on 13.06.2001 with directions to remove the dangerous portion. A notice under Section 348/349 of the Act, was also issued for vacation of the dangerous portion. On merits, defendant denied specifically the averments made in the plaint.
12. Defendants no. 2 and 3 have filed common written statement raising preliminary objection that suit of the plaintiffs is not maintainable under the provisions of Sections 477 & 478 and other provisions of the Delhi Municipal Corporation Act 1957. The plaintiffs have illegally encroached upon the Chatta at ground floor by keeping some earthen pots, some kites etc. and a takhat/wooden khoka alleging it to be a shop and started unauthorised construction/obstruction thereby encroaching upon the common passage/Chatta at ground floor. The complaints were made to the authorities and after inspection, the defendant no. 1 MCD issued notices under Section 348 and 349 of the DMC Act. The notices challenged by the plaintiffs was dismissed by the Hon'ble High Court of Delhi and LPA was also dismissed by Hon'ble High Court of Delhi vide order dated 14.11.2002.
13. It has been further submitted that answering defendants did not make any unauthorised construction in property no. 331 to 337 except permissible repairs. MCD officials in collusion with the plaintiffs issued false and frivolous notices under Section 343 and 344 of the DMC Act which was challenged by the answering defendants and the said notice was set aside vide judgment and order dated 12.10.1998 passed by the Appellate Tribunal, MCD, Delhi. The answering defendants had filed a civil suit for injunction against CS No. 11216/16 Rakesh Kumar Srivasatav & Anr vs. North Delhi Municipal Corporation & Ors. Page No. 6 of 18 the plaintiffs amongst others for removal of unauthorised encroachment. The Chatta at the ground floor and the whole of the property bearing no. 331 to 337 belongs to the answering defendants and the plaintiffs or any other person have got no rights whatsoever. The plaintiffs have got no right to either close the doors/windows of any part of the property no. 331 to 337 either at the ground floor or at any other floors.
14. It has been further submitted that plaintiffs have preferred the present petition as parallel proceedings to civil suits pending between the parties only to encroach in the common passage by making unauthorised construction of wooden khokha/tinshed shop and other encroachments under the camouflage and shield of the present suit. The other civil suits amongst others are already pending between the plaintiffs and the defendants. It has been further submitted that the suit has not been properly valued under the provisions of the Suits Valuation Act 1887 and Court Fees Act 1870.
15. On merits, answering defendants denied that MCD School has been running or exists in property no. 329, Kuncha Ghasi Ram. The MCD School is being run in a tenanted property no. 328; while property no. 329 is a shop. It is submitted that the Chatta at the ground floor which forms part of the property bearing no. 331 to 337 of the answering defendants had always been used as a common passage, for opening and windows, for air and light/necessary easementary right of passage only. The plaintiffs have got no right except to pass through the common passage without creating any obstruction. The common passage is used by the answering defendants and other persons also. It is denied that Chatta is open to sky at any place. The Chatta/common passage is covered from the very beginning. The alleged Chatta/common passage has never been in possession of the plaintiffs. The answering defendants have neither encroached upon any part of the common passage under the Chatta nor have started creating any problems or hindrances in the use of the common passage. It was denied that answering defendants has CS No. 11216/16 Rakesh Kumar Srivasatav & Anr vs. North Delhi Municipal Corporation & Ors. Page No. 7 of 18 filed suit no. 174/1997 as a counter blast. It has been submitted that answering defendants following due process of law sought injunction against the illegal and unauthorised encroachments by the plaintiffs in the common passage. The answering defendants had purchased the old existing property no. 331 to 337 vide duly registered sale deeds. Rest of the contents were denied.
16. Plaintiffs filed replication thereby denying the averment of the written statement of defendant no. 1 and common written statement of defendants no. 2 and 3 and reiterated the contents of the plaint.
17. From the pleadings of the parties, following issues were framed vide order dated 06.02.2006:-
1. Whether the plaintiffs have cause of action to institute the present suit? OPP
2. Whether the suit of the plaintiffs is barred by the provision of Section 477/478 of the DMC Act as alleged in preliminary objection of the defendant in the WS of defendant No.1 ?OPD
3. Whether the suit is not properly valued for the purpose of court fees and jurisdiction as alleged in WS of defendant?OPD
4. Whether the suit of the plaintiffs is barred by principle of res-
judicata as alleged in the preliminary objection of defendants ? OPD
5. Whether the suit of the plaintiffs is not maintainable as alleged in the preliminary objection No.6 of the WS of defendant No.1? OPD-1
6. Whether the plaintiffs is entitled to the relief of injunction as claimed in the plaint, if so, in what from?OPP
7. Relief
18. Plaintiff No.1 examined himself as PW1 and filed his affidavit Ex. PW1/A in examination in chief in the lines of the plaint and relied upon CS No. 11216/16 Rakesh Kumar Srivasatav & Anr vs. North Delhi Municipal Corporation & Ors. Page No. 8 of 18 site plan Ex PW1/1, inspection report of MCD dt 29.11.1996 Ex PW1/2, certified copy of the order dt 21.07.1997 Ex PW1/3, photographs showing illegal construction and closing of doors and windows Ex PW1/4 (colly). He was duly cross examined by defendants.
19. Plaintiffs also examined PW2 Shalini Kapoor Ld Local Commissioner and exhibited her report Ex PW2/A, spot proceedings Ex PW2/B, 22 photographs taken during spot proceedings Ex PW/2C, negatives thereof Ex PW1/D, receipt of photographer Ex PW1/E. Plaintiffs also examined PW3 Sh Shushil Kumar a LDC, RKD Branch, High Court of Delhi, Delhi and PW4 Sh Manu Vasudev and Ahlmad from the Court of Kiran Bansal, the then CJ, Dlehi who brought the case file of suit No. 900/96 wherein report dt 29.11.1996 was filed b MCD. Said report was exhibited as Ex PW4/1. She was duly cross examined by counsel for defendants
20. Defendant No.1 Municipal Corporation did not examine any witness on its behalf. Defendant No.2 examined himself as DW1 and filed his affidavit Ex DW2/A in examination in chief which was on the lines of his written statement and relied upon Appellate Tribunal MCD's order dt 12.10.19998 Ex DW1/1, speaking order dt 17.08.2001 by S.M. Hassan marked as Mark A, Notice under Section 348 Mark A/1 and under Section 349 Mark A/2, order dt 14.11.2002 passed in LPA No. 697/2002 Ex DW1/2, site plan filed by defendant Ex DW/3, statement and order dt 1.05.2007 Mark- A/3. He was duly cross examined by the counsel for plaintiffs.
21. Record of the case perused carefully and arguments addressed by Ld. Counsel for the plaintiffs taken into consideration. After going through the argument, pleading, evidence and material on record, issues wise findings are as under:-
ISSUE No. 1:-Whether the plaintiffs have cause of action to institute the present suit? OPP CS No. 11216/16 Rakesh Kumar Srivasatav & Anr vs. North Delhi Municipal Corporation & Ors. Page No. 9 of 18
22. This issue will be taken up along with issue No.6 as both issues are inter related.
ISSUE No. 2:-Whether the suit of the plaintiffs is barred by the provision of Section 477/478 of the DMC Act as alleged in preliminary objection of the defendant in the WS of defendant No.1 ?OPD
23. Onus to prove this issue is upon defendant. Defendant No.1 did not lead any evidence and witness of defendant No.2 and 3 did not testify a single word about suit being bad for want of notice under Section 477/478 of DMC Act. Under the said provision no suit can be filed against corporation or its official until the expiry of two months from the date of service of notice. Said provision has been enacted to enable the official to act in the matter brought to their notice.
24. Plaintiffs have sought exemption from serving notice as relief it claimed was of urgent nature and serving of notice and waiting for expiry of notice period would have rendered their suit infructuous. It has also been claim that even otherwise issue which plaintiffs are raising is already within their knowledge as Corporation has been party to the writ petition filed by plaintiffs wherein plaintiffs were given liberty to raise the issue in civil suit, hence it is contended that such objection has been raised only for the sake of objection.
25. Contention of the plaintiffs has weight as plaintiffs have been litigating over the same issue since the time their writ petition wherein Corporation was also party and its knew what plaintiffs was bringing to their notice and therefore if at all Corporation had willingness to act it would have acted by the time suit came to be filed. It is not in dispute that plaintiffs filed the present suit pursuant to observation and liberty granted by the Hon'ble High Court to seek its remedy before civil court. Hence, suit is not bad for want of notice under Section 477/478 of DMC Act.
CS No. 11216/16 Rakesh Kumar Srivasatav & Anr vs. North Delhi Municipal Corporation & Ors. Page No. 10 of 18 Accordingly issue No.2 is decided in favour of plaintiffs and against the defendants.
ISSUE No. 3:-Whether the suit is not properly valued for the purpose of court fees and jurisdiction as alleged in WS of defendant?OPD
26. Onus to prove this issue is upon the defendant. Neither in cross examination of plaintiff's witness nor in the own chief examination any effort has been made by the defendants to bring some evidentiary material on record so as to discharge the onus that rest upon them under the present issue. It is also worthwhile to note that no argument has been addressed on this point and it will not be futile to say that defendants have given up this issue. Plaintiffs have valued the suit for the purpose of court fees and jurisdiction at Rs 5,20,000/- and have paid Courts fee of Rs 7340/-.
27. This is a suit simplicitor for injunction and normally each relief for injunction is valued at Rs 130 for the purpose of Court fees and jurisdiction and suit is filed in the lowest of court of civil jurisdiction. However one who choses to chose higher forum one can enhance the valuation of the suit according to the pecuniary jurisdiction of the forum exercising original civil jurisdiction but he has to pay not fixed court fee but according to valuation of the suit for the purpose of the jurisdiction. Plaintiffs has paid court fees according to the valuation they put for the purpose of jurisdiction and thus there is nothing wrong so far as the valuation of the suit for the purpose of court fees and jurisdiction is concerned.
Hence, issue No. 3 is accordingly decided in favour of plaintiffs and against the defendants.
ISSUE No. 4:-Whether the suit of the plaintiffs is barred by principle of res-judicata as alleged in the preliminary objection of defendants ?OPD
28. Onus to prove this issue is upon the defendants. North Delhi Municipal Corporation which is defendant No.1 did not lead any evidence at all. Defendant No.2 and 3 have not raised any such objection in their written CS No. 11216/16 Rakesh Kumar Srivasatav & Anr vs. North Delhi Municipal Corporation & Ors. Page No. 11 of 18 statement, therefore, onus to prove this issue is primarily on defendant No.1 that suit of the plaintiffs is barred by the principle of res-judicata. In simple word the principle of res-judicata means that subsequent suit raising a question of law/fact or both between the parties would be barred if such question between the same parties stood decided by a court of competent jurisdiction in former suit between the same parties. Defendants particularly defendant No.1 did not lead any evidence nor brought the pleading and decision of former suit between the parties so as to allow this court to see if substantial and material question involved in the present suit was raised or could have been raised in the former suit and was finally decided on merits in the former suit between the parties. In the absence of such material it cannot be said that suit was barred by the principle of res-judicata.
29. Ld. Counsel for defendant while arguing pointed out that order dt 17.08.2001 passed by Shri S.M.Hasan, Assistant Engineer has decided the question involved in the present suit and therefore said order operates as res- judicata and will bar the present suit. The contention of the Ld. Counsel for the defendant is highly misplaced for the reason that first and foremost requirement for the application of principle of res-judicata is that former decision must have come from court of competent jurisdiction and secondly such lis must be between the same parties. Neither of the two condition is met as the said decision cannot be said to be from a Court as defined under Code of Civil Procedure 1908 and secondly plaintiffs was not party in such proceedings. Apart from this, said order dt 17.08.2001 did not deal with the question whether the construction over/upon the common Chhatta/passage in question was authorised or unauthorised, though said order under umbrella order held that construction on the first floor and second floor were in existence since long and were repaired only which were permissible as per clause 6.4.1. of unified Building Bye Laws. It did not discuss or rule that said first floor or second floor construction was in existence since long even over the common Chhatta/passage. Hence on merits also order dt 17.08.2001 does not operate as res-judicatta.
CS No. 11216/16 Rakesh Kumar Srivasatav & Anr vs. North Delhi Municipal Corporation & Ors. Page No. 12 of 18 Hence, in view of the above discussion issue No.4 is decided against the defendant and in favor of plaintiffs.
ISSUE No. 5:-Whether the suit of the plaintiffs is not maintainable as alleged in the preliminary objection No.6 of the WS of defendant No.1? OPD-1
30. Onus to prove this issue is upon the defendant No.1 which did not lead any evidence in the present suit, hence it can be said that defendant No.1 has failed to prove this issue. However on the basis of material available on record this issue can be taken up in detail as it highlights how the officer/staff who man the institution fails the institution for their personal gain. Any law or any institution achieve its goal only when persons responsible for their execution does his/her job honestly and sincerely. In whole of Delhi illegal and unauthorised construction came up and has flourished not because they were unnoticed for years and by the time they were noticed it was too late to take action. In Delhi the moment one brick is laid news immediately reaches to the local beat officer who comes to the spot takes his pie and turns away his eyes as if nothing is happening but only after informing the area JE not for the purpose of getting the work stopped but for assisting him to come and collect his share from such construction. The bigger the construction the bigger is involvement of chain of officers of different agency. Municipal department cannot come on its own as it is not a human being. It works through human agency and if human agency turns away their eyes from the job for which they are paid for, no institution will achieve its goal.
31. In the present case, there is no dispute that there is common passage/Chhatta to access various properties including that of plaintiffs and defendant No. 2 and 3. There is no dispute that roof of common/passage Chhatta had jaal in between. There is further no dispute that over the common passage/Chhatta construction is in existence which has a covered the jaal thereby preventing air/light. Contention of the plaintiffs is that over the common passage/ Chhatta there was no constructions and it was open upto CS No. 11216/16 Rakesh Kumar Srivasatav & Anr vs. North Delhi Municipal Corporation & Ors. Page No. 13 of 18 sky. Not only this two doors and windows of adjacent school being run by MCD open towards the roof of the Chhatta which have been blocked by the newly raised construction over the common passage/Chhatta. Stand and contention of the defendant No. 2 and 3 is that such construction over the passage was in existence since long and defendant No. 2 and 3 have not raised any new construction but has carried out only permissible repairs as construction was in dilapidated consideration.
32. In reply to specific allegation of plaintiffs that two doors and window of school open towards the roof of the common passage/chhatta, defendant No. 2 and 3 in their written statement pleaded that doors and window of the school are in same condition as they were existing prior to purchase of the property No. 331 to 337 by defendant No. 2 and 3. Thus defendants No.2 and 3 did not deny specifically that two doors and windows on the first floor of the school were opening towards the roof of the common passage/Chhatta.
33. When the present matter was pending before the Hon'ble High Court it has appointed Shalini Kapoor (Advocate) as local commissioner to visit the suit property and report. She visited the suit property and inspected the suit property in the presence of both parties and prepared spot proceedings, took 22 photographs and filed her report. She also appeared in the witness box to prove her report etc. Defendants have not filed any objection to her report. When she was in witness box counsel for defendant mainly questioned her as to how she ascertained that property in which school was being run bears property No.329. No question was asked with respect to photographs Ex PW2/4 (colly) and portion etc shown in the photographs. Meaning thereby that the contents of the photographs have not been disputed by defendants.
34. Photographs No. 4, 5, 6 and 7 clearly show that wall has been raised very close to windows which cannot open because of the wall. Ld Local CS No. 11216/16 Rakesh Kumar Srivasatav & Anr vs. North Delhi Municipal Corporation & Ors. Page No. 14 of 18 Commissioner has also reported that in the school she found two windows which would have opened towards the Chhatta, had been closed by wall. She also reported that 2 doors had been closed and one of the door had an exhaust fan fitted. Existence of doors and windows on the first floor of the school have not been disputed by the defendants and their opening towards the roof of Chhatta was also not denied in the written statement specifically but in cross examination DW1 denied that doors and windows opened towards the roof of the Chhatta.
35. Photographs as noted above reveal the complicity of the officials of the MCD. Existence of window and doors on the first floor of the school towards the roof of the Chhatta in itself indicates that there was no construction on the roof of the Chhatta otherwise which engineer/architect would make provision for window and doors towards a wall. If construction on the roof of Chhatta was in existence prior to school raising its first floor then certainly there would have not been any provision for doors and windows towards the roof of Chhatta. Provision for doors and windows with opening towards a wall defies any logic. No one affixes exhaust fan towards a wall. All this go to show that there was no construction on the roof of the Chhatta and defendant No.2 and 3 in connivance with official of MCD and School Authorities extended its coverage over the roof of the common passage/Chhatta and raised construction over there and got the notice of booking hushed up under order dt. 17.08.2001. Said order deliberately did not deal with this aspect of construction over the roof of common passage/Chhatta and it is very strange that despite getting it inspected the property the concerned officer Shri S. M. Hassan did not come to note that doors and window had been closed by a wall or why provision for windows and doors were kept towards a wall. Either the said officer himself was kept in dark by the person from whom he got it inspected or he himself botched up the entire investigation and passed favourable order in favour of defendant No.2 and 3.
CS No. 11216/16 Rakesh Kumar Srivasatav & Anr vs. North Delhi Municipal Corporation & Ors. Page No. 15 of 18
36. Order dt 17.08.2001 passed by Assistant Engineer (Building) of MCD has been made basis of claim that suit is not maintainable but since said order did not deal with unauthorised construction over the roof of the common passage/Chhatta, therefore suit cannot be said to be not maintainable in view thereof.
Hence, issue No.5 is accordingly decided in favour of plaintiffs and against the defendants.
ISSUE No. 1:-Whether the plaintiffs has cause of action to institute the present suit? OPP ISSUE No. 6:-Whether the plaintiffs is entitled to the relief of injunction as claimed in the plaint, if so, in what form?OPP
37. Both issues are taken up together as they are interconnected. Onus to prove both these issues is upon the plaintiffs. Plaintiffs has proved that illegal and unauthorised construction has been raised over Chhatta as noted above. Neither defendant No.1 nor defendant No.2 and 3 proved that there existed construction prior to school coming into existence. Similarly they also did not prove that any sanction for construction was there. It has already been noticed herein before that official of defendant No.1 and school authorities connived with defendant No. 2 and 3 and allowed construction over Chhata and subsequently joined hands to show that construction over Chhatta existed since long and defendants No.2 and 3 had merely carried out repairs and got the file closed.
38. In the entire contest defendants forgot to justify notice issues under Section 348/349 of DMC Act. Except a question that Chhatta is old no question has been asked about its status and condition. Defendant No.1 did not examine its witness to prove inspection and justification for issuance of said notice to plaintiffs and others. Similarly defendants No.2 and 3 have also not led evidence to justify the notice of MCD despite supporting the Corporation, although it was not their responsibility.
CS No. 11216/16 Rakesh Kumar Srivasatav & Anr vs. North Delhi Municipal Corporation & Ors. Page No. 16 of 18
39. Hence, in view of the above plaintiffs are entitled to relief of injunction from removing the existing roof and the iron jaal over the Chhatta and from regularizing the unauthorised construction over the Chhatta. Entire construction over the Chhatta only is also liable to be removed and accordingly defendant No.1 shall take action as per law for the removal of construction and defendant no. 2 and 3 shall not sell or part with possession of the illegal construction over the Chhatta.
Hence, both the issues are accordingly decided in favour of plaintiffs and against the defendants.
RELIEF In view of the above, suit of the plaintiffs is allowed and decree of permanent injunction is hereby passed in favour of plaintiffs and against defendants thereby restraining the defendants, their agent, assigns, employee etc. from demolishing the original existing roof and the iron jaal over the common passage/Chhatta existing between the property No. 329 and property No. 331 to 337, Kucha Ghasi Ram, Chandini Chowk, Delhi-6 under the notice dt 13.06.2001 issued under Section 348 and 349 of DMC Act.
A decree of permanent injunction is hereby passed in favour of plaintiffs and against defendants thereby restraining the defendants, their agent, assigns, employee etc. from regularising the construction over the common passage/Chhata existing between the property No. 329 and property No. 331 to 337, Kucha Ghasi Ram, Chandini Chowk, Delhi-6.
A decree of mandatory injunction is hereby passed in favour of plaintiffs against defendants thereby directing defendant No.1 to remove the entire construction over the common passage/Chhatta existing between the property No. 329 and property No. 331 to 337, Kucha Ghasi Ram, Chandini Chowk, Delhi-6. It is made clear that defendant No.1 will not do an eyewash of removal by only puncturing here and there the unauthorised construction, it will remove the complete construction only over the Chhatta. Defendants No. 2 and 3 are restrained from obstructing the demolition activities to be carried CS No. 11216/16 Rakesh Kumar Srivasatav & Anr vs. North Delhi Municipal Corporation & Ors. Page No. 17 of 18 out in pursuance to present judgment by defendant No.1 over the Chhatta in question existing between the property No. 329 and property No. 331 to 337, Kucha Ghasi Ram, Chandini Chowk, Delhi-6. It is further made clear that in case unauthorised construction could not be demolished on account of operation (if in operation as on date) of The National Capital Territory of Delhi Laws (Special Provisions) Second Act 2011, the property be kept booked for demolition as per DMC Act and be dealt with in accordance with the provisions therein.
Copy of this judgment be send to Commissioner, North Delhi Municipal Corporation to direct inquiry under his supervision as to how the doors and windows of MCD School existing in property No.329 (or 328, Kucha Ghasi Ram, Chandini Chowk, Delhi) were virtually closed by allowing the raising of wall/construction over the Chhatta/common passage existing between the property No. 329 and property No. 331 to 337, Kucha Ghasi Ram, Chandini Chowk, Delhi-6 and place report of enquiry to this Court or to the successor of this Court within three months. He will also direct enquiry as to why no official were examined in the present case to justify their issuance of notice under Section 348/349 dt 13.06.2001 in respect over common Chhatta.
Cost of the suit is awarded to the plaintiffs.
Decree sheet be prepared accordingly.
Ahlmad is directed to prepare a separate miscellaneous file for the purpose enquiry report to be submitted by Commissioner of North Delhi Municipal Corporation within three months and list the same for 01.12.2017 File be consigned to Record Room after necessary compliance.
(Harish Kumar)
Announced in open Court ADJ-13(Central)/THC
(Judgment contains 18 pages) Delhi/16.08.2017
CS No. 11216/16 Rakesh Kumar Srivasatav & Anr vs. North Delhi Municipal Corporation & Ors. Page No. 18 of 18