Delhi District Court
Smt. Indu Garg vs Delhi Development Authority on 7 January, 2012
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IN THE COURT OF SH. JAGDISH KUMAR: JSCCcumASCJcumGJ
KARKARDOOMA: DELHI
SUIT NO. 417/08
Smt. Indu Garg
WD/o Late Sh. O. P. Garg,
R/o Flat no. 125A, Mayur Vihar, PhaseII,
BlockB, Delhi91. ....Plaintiff
Vs.
1 Delhi Development Authority
Through its Chairman.
2 Asst. Director (Lab) H
DDA, Vikas Sadan, INA, New Delhi.
3 Mr. Bansal
PIO/LAB (H), DDA, Vikas Sadan, INA
New Delhi. .....Defendants
Date of Institution : 06.11.08
Date of Arguments : 07.01.12
Date of Order : 07.01.12
Suit no. 417/08 1/15
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JUDGMENT
1 This is suit for declaration and permanent injunction filed by the plaintiff against the defendants. Brief facts of the case as stated in the plaint are that the plaintiff is the owner in possession of flat no. 125A, PocketB, Mayur Vihar, PhaseII, Delhi91 since last 14 years. And residing in the suit premises along with her son, daughterinlaw, grand son and grand daughter. The total floor of the flat is 65.7 sq. meter. Out of which her daughterinlaw is using 19.85 sq. meter for her professionalcum residential use with the consent of the plaintiff. The rest of the area i.e. 45.85 sq. meter is being used by the plaintiffs for residence. It is further averred that plaintiff has been paying property tax regularly without any default. On 12.01.07 plaintiff and her husband had deposited conversion charges vide application no. 077808 to convert the lease hold rights into free hold rights of the suit flat. However, instead of considering her application, vide letter dated 13.02.08, plaintiff was directed to remove the misuse of flat. This Suit no. 417/08 2/15 3 letter was replied on 10.03.08 but defendant did not take any action on the plaintiff's application and issued a notice U/Sec.4(1)(B)(ii)(2) of Public Premises (Eviction of unauthorized Occupants) Act, 1971. Which was also replied by the plaintiff on 04.0708 and explained her position qua the suit flat. Vide letter dated 18.9.08 plaintiff was informed that allotment of her flat has been canceled due to misuse.
2 It is further averred that on 08.10.08 two employees of the defendants attempted to take forcible possession of the suit flat, however, due to intervention of the neighbours they could not succeed and they left the spot extending threats. Hence the present suit for declaration and permanent injunction. 3 After service defendants appeared and filed their joint WS. In WS defendant/DDA contended that plaintiff has no locus standi to file the present suit. The suit flat was allotted to one Ms. Suit no. 417/08 3/15 4 Pamela Puri. The Pamela Puri, vide application no. 29165 dated 22.07.1985, got registered herself for the allotment of SFS category th II Flat under 6 SFS1995. She was allotted a SFS category II Flatb bearing no. 125, PocketB, Trilokpuri through draw held on 30.09.87. On receipt of demand payment and requisite documents, the possession letter was issued to her on 22.10.90. She took over the possession of flat on 20.02.91. Since the allottee/Pamela Puri had misused the suit flat in questino by running Abilasha Maternity and Medical Clinic, a show cause notices were issued on 14.01.04 and 17.02.04 to remove the unauthorized construction/mis use in the suit flat. Thereafter, other show cause notices/final notices were issued to her on 06.10.04, 29.03.05 and 31.05.06. Despite that she did not remove the unauthorized construction and thereafter allotment was cancelled by the concerned authority on account of violation of terms and conditions of allotment. A cancellation letter was issued on 08.11.06. Thereafter Sh. O. P. Garg and Smt. Indu Garg filed an application for conversion of flat Suit no. 417/08 4/15 5 into free hold by furnishing the required documents. On inspection by the enforcement branch (Housing), it was found that the flat was used for residencecumclinic. The courtyard has been covered with the temporary roof unauthorizedly. The said flat is situated in residential area where the commercial activities are carried out unauthorizedly. Thus, vide letter dated 26.05.08 the Estate Officer (Housing) East Zone, DDA was asked to start eviction proceedings and accordingly eviction proceedings were started and the case was lastly fixed for 11.11.08. Thus, it is stated that the present suit is not maintainable as unauthorized construction is done in the suit premises and commercial activity is being run in the residential area. On these grounds defendant/DDA sought dismissal of the suit.
4 Replication to the WS of defendant filed by the plaintiff in which plaintiff has denied the averments of defendant as stated in the WS and reiterated and reaffirmed the contents of his plaint. Suit no. 417/08 5/15 6 5 After completion of pleadings following issues were framed on 13.05.10:
1. Whether the plaintiff is entitled to the relief of declaration? OPP.
2. Whether the plaintiff is entitled to the relief of permanent injunction? OPP.
3. Whether the plaintiff has no locus standi to file the present suit? OPD.
4. Whether the plaintiff is not entitled to the relief claimed in the present suit in view of the provisions of Section 41(a) of Specific Relief Act? OPD.
5. Relief.
6 In PE the plaintiff has examined herself as PW1. The defendant DDA examined Sh. Ramesh Chand, Assistant Engineer, Enforcement Cell, Delhi as DW1.
Suit no. 417/08 6/15 7 7 I have heard the Ld. Counsel for parties and give my thoughtful consideration to the submissions made by them. I also perused the record. My issue wise findings is as under: ISSUE NO. 1 The issue is framed whether the plaintiff is entitled for declaration that the professional work done by daughterinlaw of the plaintiff, as a doctor in the suit property, is not a misuse of the suit property. The Onus to prove this issue is casted upon the plaintiff. In the plaint the plaintiff has asserted that her daughterin law is running a clinic in 19.85 sq. meter area of the suit premises. But the witness through document Ex.PW1/N has contradicted the averment made in the plaint. In document Ex.PW1/N the plaintiff herself admitted that a clinic is being run in the suit property in two rooms of an area of about 23 sq. meters. Moreover, the witness PW1/plaintiff is unable to disclose the area in which the Abhilasha Suit no. 417/08 7/15 8 Maternity and Medical Clinic is being run in the suit property. While she was under crossexamination, she has deposed as, it is correct that my daughterinlaw is running the clinic in the name of Abhilasha Maternity and Medical Clinic. I can not tell in how much sq. feet or meter she is running the same. I can not tell whether Abilasha Maternity and Medical Clinic is about 65.50 sq. meter or not." So from the perusal of testimony of PW1 it proves that she is not able to substantiate the averments made in the plaint. She is unable to brought on record the correct area in which Abhilasha Maternity and Medical Clinic is being run. The PW1 herself admitted in document Ex.PW1/N that the clinic is being run in two rooms. As per site plan Ex.PW1/A there are only three rooms in the suit property. If clinic is being run in two rooms. Then it can not be accepted that clinic is being run in only 19.85 sq. meters, as the total area of the flat is 65.7 sq. meter. The Ld. Counsel for plaintiff brought to my notice the notification issued by Govt. of India in the Gazette of India bearing no. SO 2034(E) dated 12.08.08. The Suit no. 417/08 8/15 9 annexure A to the same at Serial no. 12 page no. 115 para/Clause number of MPD 2021 reads as under the "however, the entire ground floor of DDA flats on mixed use/commercial use area/stretches/roads is allowed for mixed used/commercial use. No amalgamation of two or more DDA flats shall be allowed." This notification is not helpful to the plaintiff. As there is no wishper in the entire pleading whether the suit flat situates on mixed use/commercial use area/stretches/roads is allowed for mixed use/commercial use. Without any assertion in the pleading court can not presume that the suit land falls in the commercial areas permitted for carrying commercial activities.
Even otherwise, on technical grounds the jurisdiction of civil court is barred, U/Sec.15 of Public Premises (Eviction of Unauthorized Occupants) Act, 1971, in the given facts of the case. Admittedly, the proceedings under Public Premises (Eviction of Unauthorized Occupants) Act, 1971 has been initiated for eviction Suit no. 417/08 9/15 10 of the suit premises as reveals from document Ex.PW1/M. Ld. Appellate Court has also took the similar opinion while giving observation at the appellate stage in the appeal filed against order U/O.39 R.1 & 2 CPC by observing that "The allotment of suit property stands cancelled and eviction proceedings have been initiated by issuing notice U/Sec.4(1)(B)(ii)(2) of Public Premises (Eviction of unauthorized occupants) Act. 1971 (hereinafter referred to as an Act). Sec.15 of the Act bars the jurisdiction of the civil court once an action is taken U/Sec. 4 of the Act. In view of this fact, the jurisdiction of civil court is barred. It is not the case of the appellant that notice suffers from any defect. The appellant has not challenged the very legality of the notice in question for the reasons best known to her." Admittedly, the lease has been cancelled for misuse of the suit property. The State Officer has taken the view that there is misuse of suit property and thereafter has cancelled the lease and initiated the proceedings of eviction. Once the State Officer has taken the view that there is misuse of the suit property Suit no. 417/08 10/15 11 and initiated the eviction proceedings. And the eviction proceedings has not been challenged at all. The cancellation of lease deed has also not been challenged at all. So, it is not appropriate for this Court to go in to the question whether the cancellation order is correct or not, in view of Sec.15 of Public Premises (Eviction of Unauthorized Occupants) Act, 1971.
Whatever facts has been deposed by DW1 in his examinationinchief filed by way of affidavit in evidence are discarded. As the DW1 in his crossexamination has admitted as "that the evidence by affidavit was prepared by my legal expert and I read over the same and signed it. It is correct to suggest that I had signed the evidence by affidavit believing it to be true and correct. It is correct to suggest that the averments made in the affidavit were not as per my statement but were made on my report, as per direction of the authorities. The authority is DDA, Director Enforcement Housing. I went to the counsel on 25.08.11. The Suit no. 417/08 11/15 12 affidavit was not attested in my presence, nor I had gone to the Oath Commissioner or Notary Public. I had put my signatures on the site inspection report. I do not remember the date of site inspection." The witness has not placed on record any report on which basis the affidavit has been prepared.
In view of the discussion above the plaintiff has failed to prove on record that she is not misusing the suit property. The issue is decided in favour of plaintiff and against the defendant. ISSUE NO. 2 & 3
Both these issues are taken up together being interconnected. The onus to prove the issue no. 2 is on plaintiff and the onus to prove issue no. 3 is on defendant. It is admitted preposition of law that proceedings for the grant of injunction are always discretionary. A party seeking the injunction must possess some right which the opposite party is trying to invade or there Suit no. 417/08 12/15 13 must be an obligation in its favour whether contractual or otherwise, of which the opposite party is trying to commit breach. The suit property was alloted to Smt. Pamela Puri and allotment of the suit property stands cancelled by the defendant owing to the misuse of suit property. There is nothing on record that Ms. Pamela Puri has executed any document in favour of the appellant with respect to the suit property. The receipts of the payment of property tax don't confer any right, title or interest. The emphasis can be given of the judgment titled as R. V. E. Venkatachala Gounder Vs. Arulnigu Viswesaraswami and V. P. Tample and Ors, AIR 2003 SC 4548. The plaintiff has failed to show about her legal right in the suit property. The issues are decided in favour of the plaintiff and against the defendant.
ISSUE NO. 4
The issue is framed whether plaintiff is not entitled for Suit no. 417/08 13/15 14 equitable relief being barred under Sec.41(a)(i) of Specific Relief Act, 1963. The plaintiff is unable to prove the assertion made in the plaint that her daughterinlaw is running the clinic in 19.85 sq. yards of the suit property. Even in document Ex.PW1/N she has admitted that clinic is being run in 23 sq. meter. But even during the crossexamination she is unable to remain stands on the fact as mentioned in document PW1/N. She is unable to tell whether Abhilasha Maternity and Medical Clinic is being run in 65.50 sq. yards or not. All these evidences reveals that the possibility can not be ruled out that the clinic is not being run in almost all the flat i.e. suit property. The Hon. Apex Court in case titled as M/s Gujrat Bottling Com. Ltd. Vs. Coco Cola Com. AIR 1995, SC 2372 has observed that "the relief of injunction is wholly equitable in nature, the party invoking the jurisdiction of the Court has to show that he himself was not at fault and that he himself was not responsible for bringing about the state of things, complaint of. And he was not unfair or inequitable in his dealing with the party against whom he Suit no. 417/08 14/15 15 was seeking relief. His conduct should be fair and honest. Admittedly, the lease of the suit property has been cancelled for misuse. The eviction proceedings has been initiated. U/Sec.4(1)(B)
(ii)(2) of Public Premises (Eviction of unauthorized occupants) Act. 1971. The order of cancellation of lease deed has not been challenged at all. So, this Court is of the opinion that the conduct of the plaintiff is not just and fair in using the suit property. The suit of the plaintiff is also barred U/Sec.41(a)(i) of Specific Relief Act. The issue no. 4 is decided in favour of defendant and against the plaintiff.
Relief So, in view of the abovesaid discussions I am of the view that the plaintiff is not entitled for the relief as claimed. Accordingly the suit of the plaintiff is dismissed.
(Announced in open Court (JAGDISH KUMAR)
today i.e 07.01.12) JSCC/ASCJ/GJ(East)
KKD COURT
Suit no. 417/08 15/15
16
Suit No. 417/08
07.01.12
Present: None for plaintiff.
Counsel for defendants.
Arguments heard from counsel for defendant. Be
awaited for plaintiff.
(Jagdish Kumar)
JSCC/ASCJ/GJ(East)
KKD COURTS/07.01.12
At 12.35 p.m.
Present: Counsel for plaintiff.
None for defendants.
Arguments heard from counsel for plaintiff.
Put up at 4.00 p.m for order.
(Jagdish Kumar)
JSCC/ASCJ/GJ(East)
KKD COURTS/07.01.12
Suit no. 417/08 16/15
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At 4.00 p.m.
Present: Counsel for plaintiff.
Counsel for defendant.
Vide separate judgment, the suit of the plaintiff is dismissed.
File be consigned to Record Room.
(Jagdish Kumar) JSCC/ASCJ/GJ(East) KKD COURTS/07.01.12 Suit no. 417/08 17/15