Delhi District Court
K. R. Pandey vs Lalita Dubey Ors on 9 October, 2023
IN THE COURT OF ADDL. SENIOR CIVIL JUDGE
(SHAHDARA) KARKARDOOMA COURTS,
DELHI
Presided by: Mr. Himanshu Raman Singh
Civil Suit No.553 of 2015 8083 of 2016
K. R. Pandey,
Son of late Shri T. M. Pandey,
Resident of House No.97,
Kurmanchal Niketan 115,
I. P. Extension, Delhi - 110092. .... Plaintiff
Versus
1. Mrs. Lalita Dubey,
Wife of Shri Ashok Dubey,
Resident of House No.98, First Floor,
Kurmanchal Niketan 115,
I. P. Extension, Delhi - 110092.
2. Municipal Corporation of Delhi,
Through its Commissioner,
At:- Dr. S.P. Mukherjee Civic Center,
JLN Marg, New Delhi -110002.
3. Commissioner of Police,Delhi Police,
Police Headquarter, ITO Delhi.
4. The Secretary,
Gangawali Samaj Co-operative Group,
Housing Society Ltd.,
I. P. Extension, Delhi - 110092. .... Defendants
SUIT FOR PERMANENT INJUNCTION AND
MANDATORY INJUNCTION
Date of filing : 09.12.2015.
Date of Judgment : 09.10.2023.
Decision : Partly Decreed.
Civil Suit No.553 of 2015 8083 of 2016 K.R. Pandey Vs. Lalita Dubey Ors. Page 1 of 27
JUDGMENT
1. The present suit has been instituted by the plaintiff seeking the following reliefs:-
(i) Decree for permanent injunction, thereby restraining the defendant no.1 from raising the unauthorized construction at Property No.98, Kurmanchal Niketan, I. P. Extension, Delhi;
(ii) Decree of permanent injunction, thereby directing defendant no.2 not to raise further unauthorized construction at Property No.98, Kurmanchal Niketan, I. P. Extension, Delhi and also not to give threats to the plaintiff with regard to demolishing of his House No.97, Kurmanchal Niketan, I. P. Extension, Delhi;
(iii) Decree of mandatory injunction thereby directing the defendants to demolish the unauthorized construction of Property No.98, Kurmanchal Niketan, I. P. Extension, Delhi, specifically shown in red color in the site plan and;
(iv) Decree of mandatory injunction, thereby directing the defendants not to use the wall and passage of the plaintiff and also to remove the CCTV Cameras, water motor and electric device from the wall and passage of the plaintiff.Civil Suit No.553 of 2015 8083 of 2016 K.R. Pandey Vs. Lalita Dubey Ors. Page 2 of 27
2. The brief facts of this case as narrated by the plaintiff are as under:
2.1. It has been stated that the plaintiff is the permanent resident of House No.97, Kurmanchal Niketan 115, I. P. Extension, Delhi - 110092. He has been residing in this house with his family, whereas the defendant no.1 is the resident of House No.98 (First Floor), Plot No.115, Kurmanchal Niketan 115, I. P. Extension, Delhi - 110 092; defendant no.2 is a statutory body constituted under the Delhi Municipal Corporation and works through its Commissioner; defendant no.3 is the body to control and look after the law and order and defendant no.4 is the Secretary of the society duly elected, where the suit property is situated.
2.2. It has been stated by the plaintiff that in the month of February 2015, defendant no.1 started unauthorized and illegal construction. Regarding this, the plaintiff lodged a complaint with the defendant no.2 vide Complaint dated 14.02.2015. In this complaint, the plaintiff informed the defendant no.2 that defendant no.1 had commenced construction over the Property No.98 (First Floor), Plot No.115, Kurmanchal Niketan 115, I. P. Extension, Delhi - 110 092 in utter violation of the provisions of Building bye laws and Master Plan and without obtaining the Sanction Plan from defendant no.2. The plaintiff also lodged a complaint with defendant no.3 in this regard. The defendant no.2 Civil Suit No.553 of 2015 8083 of 2016 K.R. Pandey Vs. Lalita Dubey Ors. Page 3 of 27 has failed to take any action against the defendant no.1. The plaintiff again requested defendant nos.2 and 3 to take action against defendant no.1 and to stop the unauthorized construction.
It has been further stated that the defendant no.1 was having collusion with the remaining defendants and thereby no action was taken by the defendants despite the fact that the information was given to them vide Letter dated 26.03.2015, which was duly received at the office of defendants on 27.03.2015.
2.3. It has been stated that the plaintiff again requested the defendant no.4 vide Letter dated 24.04.2015 and informed him about the ongoing illegal construction by defendant no.1 at the suit property, unauthorized installation of CCTV Cameras on the wall of the plaintiff at the entrance door of the plaintiff thereby invading the privacy of the plaintiff and installation of water motor illegally on the backside of the room, which is just above the kitchen of the plaintiff, due to the noise of the motor, the plaintiff who is a senior citizen is suffering a lot, but defendant no.3 miserably failed to take any action in this regard. The defendant no.1 installed a huge electrical device permanently on ground floor in front of the door of the plaintiff, due to the same the plaintiff is having apprehension of electric shock, but no action was taken by the defendant in this regard.
2.4. It has been stated by the plaintiff that the plaintiff gave a reminder on 22.05.2015 to the defendant no.4 with a request to Civil Suit No.553 of 2015 8083 of 2016 K.R. Pandey Vs. Lalita Dubey Ors. Page 4 of 27 take action and remove the electric device, CCTV Camera and water motor installed by the defendant no.1 from the wall/passage of the plaintiff. The plaintiff also requested to stop defendant no.1 from raising further illegal construction without sanction plan, but no action was taken. It is further stated that the plaintiff again lodged complaint with defendant no.2 on 01.06.2015, 14.07.2015 and 24.09.2015, but defendant no.2 has failed to take any action against defendant no.1 and the defendant no.4 has also miserably failed to direct the defendant no.1 for the removal of CCTV cameras, water motor and electric device. It is further stated that the plaintiff even visited the office of the defendants and requested them to take action against the defendant no.1, but the defendants failed to take any action, rather they have threatened the plaintiff that they would demolish his property, instead, if he raised any voice. On 16.09.2015, defendant no.2 issued a Show Cause Notice to the plaintiff, the same was duly replied by the Department vide its Reply dated 28.09.2015. It has been further stated by the plaintiff that due to inconvenience caused by the defendant no.1, the plaintiff and his family members are suffering a lot.
3. Written statement has been filed by defendant no.1, wherein the defendant has raised the followings contentions:-
3.1. It has been contended by the defendant that the suit of the plaintiff is liable to be dismissed in terms of provisions of Order 7 Rule 11 CPC as no cause of action ever arose in favour of the plaintiff to file the present suit against the defendant. It is further Civil Suit No.553 of 2015 8083 of 2016 K.R. Pandey Vs. Lalita Dubey Ors. Page 5 of 27 stated that the plaintiff has not approached the court with clean hands. A person who himself is guilty of encroachment and unauthorized construction is not entitled to seek any equitable relief either in law or in fact.
3.2. It has been contended by the defendant that the building in question is framed structure, which means that the entire load of the building is on pillars/frames and none of the walls in the buildings is load bearing. Defendant no.1 has strictly adhered to all the applicable laws with regard to construction as well as modification and alteration which has been carried out over the period of time. In this regard, defendant no.1 has even sent a letter to the Municipal Authorities for the purposes of alteration and in spite of the receipt of that letter and documents, the Commissioner did not objected to any alteration and or/modification that the defendant no.1 proposed to carry out in the subject premises. In terms of Section 337 of the Delhi Municipal Corporation Act, 1957, in case within 30 days, if the Commissioner does not refuse to sanction the building or work and does not communicate the refusal, the Commissioner shall be deemed to have accorded sanction to the work and the person who has given notice shall be free to commence and proceed with the work in accordance with his intention in that notice. In view of the absence of any communication from the Commissioner refusing to the work as proposed in the notice in terms of Section 337 of the Act. It has been contended that thus, renovation/modification in the flat is approved and deemed sanctioned.Civil Suit No.553 of 2015 8083 of 2016 K.R. Pandey Vs. Lalita Dubey Ors. Page 6 of 27
3.3. It has been contended that plaintiff is a retired government servant has presently has nothing productive to do. His only intention and motive is to harass the neighbours in the area where the parties are residing. It has been further stated that the plaintiff is a chronic litigant which is evident from the fact that apart from defendant no.1, the Resident Welfare Association has also been made party to the present proceedings of which he himself is a member. The plaintiff has alleged the violation of building bye laws and Master Plan by defendant no.1 without specifying as to which provisions of the bye laws and the master plan has been violated and if so in what matter and when. In view of absence of material particulars in this regard, the allegation is totally devoid of merits and is liable to be rejected herewith. It has been stated that far as the complaints being lodged by the plaintiff is concerned, it is only in order to settle his personal score and out of jealously as he does not want the neighbours to live peacefully as good neighbours.
3.4. It has been stated that the defendant has done nothing wrong so as to attract any penal action from defendant no.2. The defendant no.1 has not in any manner violated any prevalent law either by laws or the master plan in any manner whatsoever and the defendant no.1 has obtained sanctioned as per law from the competent authority. The plaintiff has filed the present suit only for harassing and humiliating the defendant no.1 to create mental pressure, pain and agony.Civil Suit No.553 of 2015 8083 of 2016 K.R. Pandey Vs. Lalita Dubey Ors. Page 7 of 27
3.5. It has been contended that the plaintiff is in the habit of writing false and frivolous letters and complaints to the different authorities and the letter under reference to defendant no.1 is one such letter on which rightly no illegality has been committed by the defendant no.1 in any manner whatsoever. It has been stated that so far as installation of CCTV camera is concerned, firstly it is not on the wall of the plaintiff, but it is a common wall. Secondly, the CCTV Camera does not in any manner affect the privacy of the plaintiff in any manner whatsoever. The contention of the plaintiff is without any basis and is liable to be rejected. Even otherwise the installation of CCTV Camera is for security of the place not only for defendant no.1 but for all the residents of that particular building. It has been stated that so far as the installation of water motor is concerned, the said water motor was installed at the outer wall of the building and that too in the portion belonging to defendant no.1.
3.6. It has been contended that the plaintiff himself is carrying out such unauthorized construction and made encroachment on public land for which he is liable to be prosecuted in accordance with law. In this regard, an action has already been initiated by the MCD against the plaintiff. It is further stated that in the back portion of the premises, the plaintiff has carried out certain unauthorized construction and has installed a water tank on the said portion, which is totally illegal as the said water tank is being installed in the portion belonging Civil Suit No.553 of 2015 8083 of 2016 K.R. Pandey Vs. Lalita Dubey Ors. Page 8 of 27 to defendant no.1. So far as the installation of electrical device is concerned, the said electrical device is nothing but a voltage stabilizer, which has been installed in the common area under the staircase where the electric meter of all the residents are installed.
It has beens stated that in any event it does not affect in any manner whatsoever either the ingress of egress of the plaintiff or in any manner obstructs the plaintiff in his peaceful living in the portion of the premises. Even otherwise, as per the site plan filed by the plaintiff, the said electrical device is shown to have been installed at a place where it is not actually installed.
3.7. It has been contended by the defendant that since no legality has been committed by defendant no.1 in any manner whatsoever as alleged by the plaintiff or at all, the removal of the said devices as alleged by the plaintiff is not required as no illegality has been committed by defendant no.1. It has been stated that the plaintiff himself is guilty of encroachment of public land for which defendant no.2 has rightly issued him show cause notice on 16.09.2015. It is further contended that the renewal work done by the defendant is deemed to have been sanctioned by competent authority.
4. Written statement has been filed by defendant no.2/EDMC (now MCD), wherein following contentions have been raised by the defendant:-
4.1. It has been contended by the defendant that the suit of the plaintiff is not maintainable as the plaintiff has not served statutory notice under Section 477/478 of DMC Act prior to Civil Suit No.553 of 2015 8083 of 2016 K.R. Pandey Vs. Lalita Dubey Ors. Page 9 of 27 filing the present suit. It is also contended that no cause of action ever arose in favour of the plaintiff and against the defendant. It is also contended that the plaintiff has concealed material facts before this court. It is further stated that the status of Flat Nos.97 and 98, Kurmanchal Niketan, I. P. Extension, Delhi is as under:-
(a) Flat No.97, Kurmanchal Niketan, I. P. Extension, Delhi-
The above flat has already been inspected by the area JE (B)- I/SH (S) on 16.09.2015. This flat belongs to plaintiff. During the inspection, it has been noticed that the flat in question initially developed by the DDA. On inspection, it was found that the unauthorized construction in the shape of extension in the bank side of the flat had been carried out and same was booked vide Booking File No.518/B/UC/SH/S/15 dated 16.09.2015. The Show Cause Notice dated 16.09.2015 was served to the owner/occupier, but the reply of the same has not been received and after following due process of law and the demolition order was passed on 14.10.2015.
(b) Flat No.98, Kurmanchal Niketan, I. P. Extension, Delhi- This flat has been inspected by the area JE (B)-1/SH (S) on 03.08.2015 and same belongs to co-defendant, Mrs. Lalita Dubey. During the inspection, it has been noticed that the flat in question was initially developed by the DDA. On inspection, it was found that the unauthorized construction in the shape of removal of wall, changing location of kitchen and toilet, extension of hall towards balcony had been carried out and same was booked vide Booking File No.324/B/UC/SH/S/15 dated 03.08.2015. The Show Cause Notice dated 03.08.2015 was Civil Suit No.553 of 2015 8083 of 2016 K.R. Pandey Vs. Lalita Dubey Ors. Page 10 of 27 served to the owner/occupier, but the reply of the same has not been received and after following due process of law, the demolition order was passed on 07.09.2015. The demolition action programmes were fixed for 04.11.2015, 21.01.2016 and 26.02.2016 and same could not be executed due to non- availability of police force. Further action would be taken against the unauthorized construction carried out at the above properties in due course of time as per the provisions of the DMC Act.
4.2. It has been contended by the defendant that the present suit is deficit and defective as plaintiff has not supplied the site plan and other documents upon which he has relied.
5. Replication was filed by the plaintiff to the written statement of defendant nos.2 and 4, wherein plaintiff reiterated the contents of the plaint and denied the averments made in the written statements.
6. On completion of pleadings, the following issues were framed: -
(i) Whether the defendant no.1 has carried out any unauthorized construction in her property and if so, whether any prejudice is being caused to the plaintiff because of the same? OPP
(ii) Whether the defendant no.1 has illegally installed CCTV cameras, water motor and other electricity devices on the wall and passage of the plaintiff? OPP
(iii) Whether the plaintiff has himself carried out unauthorized contruction in the suit property and has, therefore, not come to the court with clean hands? OPD1 & OPD2 Civil Suit No.553 of 2015 8083 of 2016 K.R. Pandey Vs. Lalita Dubey Ors. Page 11 of 27
(iv) Relief.
7. In order to prove his case, the plaintiff - Mr. K. R. Pandey, son of late T. M. Pandey, examined himself as PW-1, who led his evidence by way of affidavit Ex.PW1/1. He has relied upon following documents:
Ex.PW1/A Complaint to Commissioner of MCD dated 14.02.2015. (colly. 2 pages) (OSR) Ex.PW1/B Complaint dated 13.02.2015 to SHO. (OSR) Ex.PW1/C Reminder 1 dated 26.03.2015. (OSR) Ex.PW1/D Letter to Gangawali Samaj Co-operative Group Housing Society Ltd. dated 24.04.2015. (OSR) Ex.PW1/E Letter to Deputy Commissioner, MCD dated 16.06.2015. (OSR) Ex.PW1/E1 Reminder I dated 22.05.2015, (OSR) Ex.PW1/F Four photographs.
Ex.PW1/G Reminder II dated 24.09.2015
Ex.PW1/H Site Plan.
8. PW1 has also relied upon the documents which are not mentioned in the affidavit:-
Mark C Reply dated 09.12.2015 to RTI, (colly.2 pages) Mark D Reply dated 06.07.2015 to RTI (colly. 3 pages) Ex.PW1/I Copy of Complaint dated 28.09.2015 to Deputy Commissioner, Shahdara. (OSR) Ex.PW1/J Copy of complaint dated 28.09.2015 to Superintendent Engineer. (OSR) Ex.PW1/K Copy of complaint dated 28.09.2015 to Assistant Engineer. (OSR) Ex.PW1/L Copy of complaint dated 13.10.2015 to Deputy Civil Suit No.553 of 2015 8083 of 2016 K.R. Pandey Vs. Lalita Dubey Ors. Page 12 of 27 Commissioner along with postal receipt. (OSR) Ex.PW1/M Copy of complaint dated 13.10.2015 to Superintendent Engineer along with Postal Receipt. (OSR)
9. PW-1 was cross-examined by defendant no.1 at length. Further to prove the case, plaintiff summoned Mr. D. P. Sharma, AE (Building), Shahdara South, EDMC (now MCD), Karkardooma, Delhi, who was examined as PW-2. He brought the following summoned records:- Copy of Order sheets, Order dated 29.04.2019 and Proceedings Sheets including documents, which are exhibited as Ex.PW-2/A. (colly. 30 sheets) (OSR).
10. Defendants did not cross-examine PW-2 despite opportunity. The right of the plaintiff to lead further evidence was closed vide order dated 18.10.2019.
11. Thereafter, in order to support the claim of the defendant no.1 - Ms. Lalita Dubey, wife of Shri Ashok Dubey, examined herself as DW-1, who led her evidence by way of affidavit Ex.RW-1/A. She has relied upon photographs of the property in question, which is exhibited as Ex.RW1/1.
12. DW-1 was cross-examined by plaintiff at length.
Thereafter, defence evidence was closed on 24.05.2023.
Civil Suit No.553 of 2015 8083 of 2016 K.R. Pandey Vs. Lalita Dubey Ors. Page 13 of 2713. I have heard the final arguments and gone through the record carefully. The issue wise findings are as follows:
Issue no. 1
(i) Whether the defendant no.1 has carried out any unauthorized construction in her property and if so, whether any prejudice is being caused to the plaintiff because of the same? OPP
14. The onus to prove this issue was on plaintiff. Learned counsel for the plaintiff advanced the following submissions:-
14.1. The plaintiff is aged about 81 years old. That the plaintiff filed the suit for permanent and mandatory injunction for restraining the defendant no.1 from raising the unauthorized construction at property no.98, Kurmanchal Niketan, I.P. Extension, Delhi and defendants be directed to demolish the unauthorized construction in the said property and for removal of CCTV cameras, water motor and electric device from the wall and passage of the plaintiff. To prove his case, plaintiff examined two witnesses i.e. plaintiff himself as PW-1 to prove his complaints and contentions and PW-2 Sh. D.P Sharma, AE (Building), Shahdara South EDMC (now MCD), Delhi, to prove the unauthorized constructions raised by the defendant no.1 and despite demolition Order dated 29.04.2019 defendant no.2 did not demolish the unauthorized construction in the said flat on one pretext to another.Civil Suit No.553 of 2015 8083 of 2016 K.R. Pandey Vs. Lalita Dubey Ors. Page 14 of 27
14.2. The defendant no.1 examined herself as DW-1 and in cross-examination admitted the unauthorized construction as alleged by the MCD in his Order dated 29.04.2019. The relevant portion of the cross-examination is as under:-
Cross examination of DW-1 dated 01.03.2023, at Page No.1:-
"it is correct that I install the said water motor in the common portion but is adjacent to my wall. I have installed the water motor on first floor...."
At page no.2:-
".......it is correct that I had not received any permission letter from EDMCwho carried out the repair work in my flat......" "...... it is correct that all the floors have same architecture like kitchen, rooms, bathroom, dining room and bathrooms are built same. It is correct that the drainage pipe, water pipe, kitchen pipes are common for all the residents of the flats in the building. It is correct that after complaint made by the plaintiff, the officials of the EDMC had inspected my flat wherein l carried out my repair work. It is correct that after inspection the officials of the EDMC booked my property for unauthorized construction. When the officials of the EDMC visit my flat I was present at the time of the inspection....
......it is correct that when I purchased the flat the diagram of my flat was as it is like my second floor flat and ground floor flat and till today...."
14.3. Cross examination dated 24.05.2023 of DW-1 at Page No.2:-
" . . .it is wrong to suggest that water motor that I have install is not allowed as per law in my society....
....it is correct that I had taken the stand in the appeal before the appellant tribunal of MCD that the construction on the basis of which demolition order is passed is compoundable...... .......it is correct that officials of MCD passed the order to remove the unauthorised construction in the shape of removal of wall, changing location of kitchen and toilet, extension of hall towards balcony. It s correct that I filed the appeal against the above said order before the appellant tribunal. It is correct that the above said unauthorized construction mentioned, in the Civil Suit No.553 of 2015 8083 of 2016 K.R. Pandey Vs. Lalita Dubey Ors. Page 15 of 27 order of EDMC of Inspector, I requested to the tribunal the same is compoundable as per EDMC Bye-laws........"
At Page No.3:-
"1 do not have knowledge with regard to the seepage in the flat of the plaintiff due to unauthorized construction in the shape of removal of wall changing location of the kitchen and toilet, extension of hall towards balcony....."
It has been contended that the defendant neither file any document on record nor relied on any document in her evidence to prove her defense.
14.4. As per MCD guidelines on addition and alteration in DDA flats in clause 2 (II) in the head addition/alterations permitted with prior intimation/permission:-
"1. interchange the position of the kitchen, bathroom and WC with proper connections subject to structure safety. To carried out these interchanges all the allottees with one vertical stack will have to apply jointly."
All the allottee with one vertical stack wanted to carried out addition alteration in their flats then only all the allottees with one vertical stack will have to apply jointly otherwise any individual allottee with one vertical stack cannot be permitted to carried out any addition/alternation of his/her flat. As per Section 19 (3) of Delhi Jal Board Act:-
"No person shall install a booster pump or any other appliance without the permission of the board on any water main or service pipe or shall pump water supplied by the board otherwise than in accordance with such conditions as may be specified by regulations made in this behalf."Civil Suit No.553 of 2015 8083 of 2016 K.R. Pandey Vs. Lalita Dubey Ors. Page 16 of 27
14.5. It has been contended that since the defendant no.4 filed his written statement and thereafter proceeded ex-parte and defendant no.2 did not lead any evidence to rebut the allegations made by the plaintiff against them and as such the plaintiff successfully established his case against the defendant no.2 and 4 and relief claimed against the defendant no. 2 and 4 are liable to be decreed.
14.6. It has been contended that from the above facts and submissions, it is crystal clear that the defendant no.1 was carried out unauthorized construction vide order dated 29.04.2019 passed by the officials of the defendant no.2 which cannot be compounded and is liable to be demolished as per law unauthorized construction in the said property and installation of CCTV cameras, water motor and electric device from the wall and passage of the plaintiff are illegal and unauthorized and are liable to be removed and the suit of the plaintiff is liable to decreed with cost.
15. Per contra, the learned counsel for defendant no.1 has raised the following arguments:-
15.1. In the present suit the plaintiff has raised certain issues, out of which there are two substantial issue on which relief is being sought:- (a) Regarding unauthorised carried out by the and illegal construction defendant no.1 in the month of February, Civil Suit No.553 of 2015 8083 of 2016 K.R. Pandey Vs. Lalita Dubey Ors. Page 17 of 27 2015. It is a matter of record that defendant no.1 is the 3 rd purchaser and she has not carried out any material alteration or moderation in the structure of the unit, she had only carried out renovation of the subject unit in the month of February, 2015. All the reports and event of MCD which has been relied upon the plaintiff, even though reflects certain modification, but none of the report at any point of time, refer to the fact that it was carried out by defendant no.1, as there is no evidence to that effect.
15.2. It has been contended that so far as relief with regard to injunction is concerned, it is not even the case of the defendant that she is intending to carry out any unauthorised or illegal construction in the subject premises. So far as Prayer No.3 seeking direction to demolish the unauthorized construction of Flat No.98 is concerned, it has been already brought to the notice of this court that demolition order was passed in respect of Flat No.9,7 which is owned by the plaintiff and Flat No. 98 which is owned by defendant no.1. The defendant no.1 had challenged that order before the MCD Appellate Tribunal and the matter was remanded back to MCD. Thereafter, passed an order which was read by the counsel for the plaintiff during the course of the argument. In this regard, it was pointed out that MCD had written a Letter on 16.03.2017, in response to the Letter written by the defendant no.1 for regularization of structure and construction, the MCD in this Letter 16.03.2017 informed defendant no.1, that the regulation of the construction carried out would be possible Civil Suit No.553 of 2015 8083 of 2016 K.R. Pandey Vs. Lalita Dubey Ors. Page 18 of 27 but only in case if an application is filed for regularization of the entire group housing building society. In this regard the defendant no.1 had given written letter to the RWA on 05.06.2023 and RWA has given a response stating that appropriate decision in this regard shall be taken in the next AGM of RWA.
15.3. It has been contended that, the plaintiff in their plaint has not pleaded the nature of illegal or is construction, if any and has in fact filed a site map, the site map which is marked in red colour which is the entire outer limit of the unit to be demolished.
Since, MCD itself has written a letter to the defendant no. 1 and the society is also in the process of taking decision with regard to regularization of the entire society as several modification and rectification has been done in various units of the society and therefore, the society is inclined to take decision in this regard for regularization of such Structure. In any event, the said structure is framed based structure and any internal changes made if any shall not affect the overall structural stability of the building. Since, such construction is compoundable and can be regularized but the only condition is that the entire society has to file, which the society is presently deliberating upon. In that view of the matter, there is no merit in the case of the plaintiff with regard to prayer 'C' of the plaint for dermolition of any construction at Flat No. B-98, Kurmanchal Niketan, I.P. Extension, Delhi.
15.4. With regard to the Injunction with respect to installation of outer unit of AC, water motor, installation of CCTV camera and Civil Suit No.553 of 2015 8083 of 2016 K.R. Pandey Vs. Lalita Dubey Ors. Page 19 of 27 electric stabiliser, it has been contended that cross-examination of the plaintiff on 04.08.2018 is relevant wherein Ex.PW1/F has been referred to, which according to the Plaintiff is the photograph of installations of AC, water motor, electrical device and CCTV. It has been contended that the perusal of exhibit Ex.PW1/F clearly reflects that the AC and water motor has been installed on the outer wall of the portion of property of the defendant no. 1 and not of the plaintiff. So far as CCTV camera is concerned, that is installed on a common wall on the ground floor adjacent to the staircase only for the purpose of security and that does not any manner encroach upon the privacy or cause any inconvenience to the plaintiff. Similarly, the electrical device is being installed under the stair case which is a common space where other residents of the building also keep their objects which does not in any manner effect the ingress and egress of the plaintiff or any other resident of the building. It has been contended that the intention of the defendant no.1 is never to cause any inconvenience to the plaintiff. The plaintiff himself is guilty of carrying out unauthorised construction in his own premises and therefore, plea with regard to regularization is the only solution in such type of cases. In any event construction which are essential compoundable has been allegedly carried out by the predecessor-in-interest of the defendant no.1 or by the plaintiff or any other resident of the society and that the decision in this regard shall be taken collectively by the society pursuant to the letter issued by the MCD which prohibits regularization of individual flats and permits regularization of the society as a whole. Even otherwise, MCD guidelines on addition and alteration in 'DDA Flats' which is also relied upon by Plaintiff Civil Suit No.553 of 2015 8083 of 2016 K.R. Pandey Vs. Lalita Dubey Ors. Page 20 of 27 clearly stipulated that certain addition and alteration can be carried out without permission of MCD. In the instant case, there is no encroachment of Public Land, no danger to structural stability and even other's right are not interfered.
15.5. In that view of the matter, there is absolutely no merit in the case of the plaintiff and the plaint is therefore liable to be dismissed with heavy cost and appropriate order be passed for regularization in respect of compoundable, alterations in the unit of defendant no.1.
16. The Issue No.1 contains two parts:-
(a) Whether unauthorized construction has been carried out by the defendant no.1 in her property?
(b) Whether the unauthorized construction has been carried out by the defendant no.1 herself?
From the report of the MCD and the cross-examination of DW-1, it is clear that there is unauthorized construction in the property of defendant no.1. However, the plaintiff could not prove that the construction was carried out by defendant no.1 herself. It is settled law that occupier of the premises is liable for unauthorized construction and it is immaterial whether the unauthorized construction was carried out by the occupier or not.
17. The third limb of the issue concerns, whether any prejudice has been caused by the plaintiff because of the unauthorized construction of the defendant no.1.
Civil Suit No.553 of 2015 8083 of 2016 K.R. Pandey Vs. Lalita Dubey Ors. Page 21 of 2718. It is the case of the plaintiff that he has been suffering due to the noise of the motor and the unauthorised construction being done by the defendant no.1. The plaintiff has failed to prove on record as to what damage has been caused to his property by the construction/ modification/ alterations carried out by defendant no.1. The plaintiff in his affidavit has simply stated that the plaintiff and his family members are suffering inconvenience and there is infringement of the rights.
19. The issues in civil cases are to be decided on the scale of preponderance of probabilities. The doctrine of preponderance of probabilities was discussed in the judgment titled Postgraduate Institute of Medical Education and Research v. Jaspal Singh, (2009) 7 SCC 330 which reads as under:
"17. In Syad Akbar v. State of Karnataka (1980) 1 SCC 30 this curt dealt with in details the distinction between negligence in civil law n din criminal law. It has been held that there is marked difference as to the effect of evidence, namely, the proof, in civil and criminal proceedings. In civil proceedings, a mere preponderance of probability is sufficient, and the defendant is not necessarily entitled to the benefit of every reasonable doubt; but in criminal proceedings, the persuasion of guilt must amount to such a moral certainty as convinces the mind of the court, as a reasonable man, beyond all reasonable doubt".
20. In Dr. N.G. Dastane Vs. Mrs. S. Dastane on 19 th March, 1975 AIR 1975 SC 1534, (1975), SCC 326, Hon'ble Supreme Court held as under:-
"24. The normal rule which governs civil proceedings is that a fact can be said to be established if it proved by a preponderance of probabilities. This is for the reason that under the Evidence Act, Section 3, a fact is said to be proved when the court either either believes it to exist or considers its existence Civil Suit No.553 of 2015 8083 of 2016 K.R. Pandey Vs. Lalita Dubey Ors. Page 22 of 27 so probably that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The belief regarding the existence of a fact may thus be founded on a balance of probabilities. A prudent man faced with conflicting probabilities concerning a fact-situation will act on the supposition that the fact exists, if on weighing the various probabilities he links that the preponderance is in favour of the existence of the particular fact. As a prudent man, so the court applies this test for finding whether a fact in issue can be said to be proved. The first step in this process is to fix the probabilities, the second to weigh them, though the two may often intermingle. The impossible is weeded out at the first stage, the improbable at the second. Within the wide range of probabilities the court has often a difficult choice to make but it is this choice which ultimately determines where the preponderance of probabilities lies. Important issues like those which affect the status of parties demand a closer scrutiny than those like the loan on a promissory note : "the nature and gravity of an issue necessarily determines the manner of attaining reasonable satisfaction of the truth of the issue "Per Dixon, J. In Wright v. Wright (1948) 77 C.L.R. 191 at p. 210; or as said by Lord Denning, "the degree of probability depends on the subject- matter. In proportion as the offence is grave, so ought the proof to be clear" Blyth v. Blyth (1966) 1 A.E.R. 534 at 536. But whether the issue is one of cruelty or of a loan on a pronote, the test to apply is whether on a preponderance of probabilities the relevant fact is proved. In civil cases this, normally, is the standard of proof to apply for finding whether the burden of proof is discharged."
This court is of the considered view that the plaintiff has failed to prove on record as to what rights of his are being infringed by the alternations/ construction carried out by defendant no.1. The issue is accordingly decided in favour of the defendant no.1.
Issue No. 2(ii) Whether the defendant no.1 has illegally installed CCTV cameras, water motor and other electricity devices on the wall and passage of the plaintiff? OPP Civil Suit No.553 of 2015 8083 of 2016 K.R. Pandey Vs. Lalita Dubey Ors. Page 23 of 27
21. The onus to prove this issue was on the plaintiff. To prove this issue, plaintiff examined Mr. D.P. Sharma, AE (Building), Shahdara South, MCD as PW-2. The claim of the plaintiff is that the defendant no.1 has illegally installed CCTV Cameras, water motor and other electricity devies on the wall and passage of the plaintiff. With respect to the CCTV Cameras, it has been contended by the plaintiff that the CCTV Camera is facing the house of the plaintiff. After seeing the site plan and photograph of CCTV Cameras, this court is of the considered view that the CCTV Cameras are not invading into the privacy of the plaintiff. Therefore, relief for the CCTV Cameras cannot be granted. With respect to the water motor, it has been contended by the plaintiff that the water motor has been installed by defendant no.1 in violation of the Delhi Jal Board Act, Section
19. Section 19 of the Delhi Jal Board, 1998 reads as under:-
"19. Prohibition of waste or misuse of water or instillation of booster pumps.
(1) No person shall wildfully or negligently cause or suffer any water fittings to be so constructed or so adopted, or to remain out of order in such a manner, that the water supplied to him by the board is, or is likely to be wasted, misused or unduly consumed or contaminated, or that foul air or any impure mature is or is likely to be returned to any pipe belonging to, or connecting with a pipe belonging to the Board.
(2) The Board may without prejudice to its right to proceed against such person under any other provision of law, acquire any person infringing the provisions of sub-section (1), to carry out any necessary repairs or alterations and, if he fails to do so within forty eight hours, may carry out the work and recover the cost incurred in so doing from such person.Civil Suit No.553 of 2015 8083 of 2016 K.R. Pandey Vs. Lalita Dubey Ors. Page 24 of 27
(3) No person shall install a booster pump or any other appliance without the permission of the Board on any water main or service pipe or shall pump water supplied by the Board otherwise than in accordance with such conditions as may be specified by regulations made in this behalf."
The plaintiff has been able to prove that the defendant no.1 has installed water motor/ booster pumps. The said booster pump, water motor is against the Act and the Rules. The plaintiff has been successful in proving that the defendant no.1 has intalled the water motor illegally.
22. The third prayer of the plaintiff is that the defendant no.1 has installed Air Conditioning Unit on the outer wall belonging to the plaintiff. It is contended by the defendant no.1 that the outer wall belongs to the society and the society has no objection in the intallation of the out-door unit of the air conditioner. It has been further contended that there is no suitable place for installation of the air conditioner other than the place on which it has been installed. It has been further contended by defendnt no.1 that the proper pipes for drainage of water have also been installed.
23. After going through the record, this court is considered view that the plaintiff has failed to prove as to how installation of out-door AC Units is affecting any right of the plaintiff. In the circumstances, Issue No.2 is partly decided in favour of the plaintiff. Defendant no.1 is directed to remove the water motor/ booster pump installed by her in the common area being in violation of the Delhi Jal Board Act, 1998.
Civil Suit No.553 of 2015 8083 of 2016 K.R. Pandey Vs. Lalita Dubey Ors. Page 25 of 27 Issue No. 3(iii) Whether the plaintiff has himself carried out unauthorized construction in the suit property and has, therefore, not come to the court with clean hands? OPD1 & OPD2
24. Onus to prove this issue was on defendant no. 1 and
2. To discharge the burden of proof, the defendant examined herself as DW-1. From the report of the MCD, it is clear that the property of the plaintiff has already been booked. From the record, it has been clear that the plaintiff has occupied common area also. From the report of the MCD, with respect to flat of the plaintiff, that is, Flat No.97, following paragraph is relevant:-
"(a)Flat No.97, Kurmanchal Niketan, I. P. Extension, Delhi-
The above flat has already been inspected by the area JE (B)- I/SH (S) on 16.09.2015. This flat belongs to plaintiff. During the inspection, it has been noticed that the flat in question initially developed by the DDA. On inspection, it was found that the unauthorized construction in the shape of extension in the bank side of the flat had been carried out and same was booked vide Booking File No.518/B/UC/SH/S/15 dated 16.09.2015. The Show Cause Notice dated 16.09.2015 was served to the owner/occupier, but the reply of the same has not been received and after following due process of law and the demolition order was passed on 14.10.2015."
It is clear from the report that the property of the plaintiff has also been booked. Therefore, the defendants have been successful in showing that the plaintiff has not approached the court with clean hands.
Civil Suit No.553 of 2015 8083 of 2016 K.R. Pandey Vs. Lalita Dubey Ors. Page 26 of 27Issue No.4
(iv) Relief
25. In the facts and circumstances, the suit is partly decreed in favour of the plaintiff. Defendant no.1 is directed to remove the water motor/ booster pumps installed by her in the common area.
26. Decree sheet be prepared. Parties to bear their own costs. File be consigned to Record Room after due compliance.
Announced in open courts on 09.10.2023.
(Himanshu Raman Singh) Addl. Senior Civil Judge, Shahdara, KKD Court, Delhi/09.10.2023.
Civil Suit No.553 of 2015 8083 of 2016 K.R. Pandey Vs. Lalita Dubey Ors. Page 27 of 27