Delhi District Court
Kanwar Singh vs Ramesh Mehta on 8 February, 2013
IN THE COURT OF CIVIL JUDGE04 (SOUTH), SAKET
COURT COMPLEX, NEW DELHI
Presided by : Ms. Ritu Singh
Suit no. 126/10
Case ID No. 02406C0330842010
In the matter of :
Kanwar Singh
S/o Sh. Devinder Singh
R/o Flat no. 44, First Floor,
Central Market, Lajpat Nagar,
New Delhi. .....................Plaintiff
Versus
1. Ramesh Mehta
Sole Prop. of M/s. Mehta Wool Company,
89, Central Market, Ground Floor,
Lajpat Nagar, New Delhi.
2. Municipal Corporation of Delhi
Through its Commissioner
Town Hall, Chandni Chowk,
Delhi110006. .................Defendants
Date of Institution :19.03.2008
Suit No. 126/10 1/37 pages
Date of Reserving of Order :28.01.2013
Date of Pronouncement of Order :08.02.2013
J U D G M E N T
1. This is a suit for permanent injunction filed on behalf of plaintiff for restraining the defendant no.1 from depriving the plaintiff from using and enjoying the suit property by removing two split condenser units installed in front of the windows of the plaintiff on the first floor and directing def.no. 2 to initiate action against def.no.1 for violation of Delhi Municipal Corporation Act for digging up basement under the shop and misuse of tehbazari rights.
2. In his plaint, plaintiff has averred that def.no.1 is carrying out business from shop no. 89, Central Market, Lajpat Nagar, New Delhi on ground floor under the name of M/s. Mehta Wool Company. Def.no.2 /MCD has granted tehbazari rights to def.no.1 to extend his shop a few feet subject the condition that neither the plaintiff nor def.no.1 shall use roof/arch of tehbazari portion. Plaintiff has stated that for the last several Suit No. 126/10 2/37 pages years, def.no.1 has been using arch roof by installing split condenser unit of AC on it and a huge board of height 4" over it due to which hot air ignited by the condenser is directed into the windows of the plaintiff and therefore plaintiff has either to keep his windows closed or suffer suffocation by hot air. Plaintiff has stated that about 7 years back plaintiff approached def.no.1 and apprised him of serious health hazards on account of hot air ignited by AC condenser unit. Plaintiff has averred that recently def.no.1 has installed a big heater AC along with 1.05 ton AC causing nuisance and serious health hazards to the plaintiff. Plaintiff has stated that in summer of 2007 plaintiff approached def.no.1 requesting him to remove the two condenser units of AC but to no avail. Plaintiff has averred that a legal notice has been sent to MCD as well as Land and Development office and a notice dt. 3.10.07 was issued to the def. whereby he was called upon to remove the two condenser units but he failed to remove the same. In his plaint, plaintiff has averred that def.no.1 has been violating the terms and conditions of tehbazari rights granted to him by MCD by misusing the roof of tehbazari by installing Suit No. 126/10 3/37 pages one 3 ton and another 1.05 ton condenser on the roof/arch. Plaintiff has stated that def. has infringed the easementary right of plaintiff to enjoy fresh air and natural light.
3. Defendant no.1 has contested the suit by filing WS wherein defendant has taken preliminary objection that the plaintiff has no locus standi and the suit is barred by delay, latches, waiver and acquisance. In his WS def. no.1 has stated that the AC unit as well as the display board was at the same place since the time of purchase of the shop in 1979 and other shopkeepers have also affixed the display board on AC on similar place as there is no other place available. On merits, def.no.1 has denied that tehbazari right granted to def.no.1 is subject to condition that neither plaintiff nor def.no.1 can use roof of tehbazari portion. Def.no.1 has further denied that air conditioning unit and the board was installed after the grant of tehbazari rights by def.no.2 stating that the AC as well as the display board was in place since last 28 years and about 1516 years back when shop was reconstructed the arch was modified by def.no.2. Def.no.1 has denied that the windows of Suit No. 126/10 4/37 pages the plaintiff open in direction of the hot air ignited by the AC units causing heating of the living room of the plaintiff stating that the air ignited by AC unit is directed towards the road side. Def.no.1 has further averred that there is no other place where condenser unit of AC can be affixed and therefore all the shopkeepers of the market have placed their AC over tehbazari roof. In his WS def.no.1 has further stated that the AC condenser units are affixed 5 feet away from the window and as such there is no deprivation of light and fresh air and therefore no easementary right of plaintiff has been infringed by the def. no.1. In his WS, def.no.1 has denied having illegally dug the basement under his shop stating that there is no terms and conditions in the lease deed to bar def. no.1 from constructing basement. Def.no.1 has denied that plaintiff approached him 7 years back in respect of health hazards caused to him by AC condenser unit and has denied that def.no.1 recently installed 3 ton along with 1.5 ton AC unit causing health hazards to the plaintiff stating that the same is at that place since last more than 10 years and 1.5 ton unit was installed in 1979 and above 10 years ago the other unit was Suit No. 126/10 5/37 pages installed. Def.no.1 has denied that he has violated any terms and conditions of tehbazari right by misusing the roof of tehbazari by installing 3 ton and 1.5 ton condenser unit on the roof of tehbazari shop.
4. Def. no.2 has contested the suit by filing WS raising preliminary objection that suit is barred u/s. 477 and 478 of DMC Act and is without any cause of action. In his WS def.no.2 has admitted that neither the plaintiff nor def.no.1 has any right to use the roof of tehbazari portion. Def.no.2 on inspection conducted by officials of Building Department as well as Licensing Deptt., Central Zone has found that suit property comprises of basement to second floor and when the basement was being digged it was booked vide file no. 116/B/UC/CZ/1990 dt. 13.3.90 and demolition order has also been passed. Def.no.2 in his WS has submitted that upon site inspection, it was found that def.no.1 has installed an AC which is not permissible as per the terms and conditions of tehbazari.
5. A Local Commissioner was appointed vide order dt. 23.4.10 to Suit No. 126/10 6/37 pages visit the suit premises along with the Licensing Inspector, pursuant to directions of Hon'ble High Court of Delhi dt. 11.3.2010, to ascertain whether rooftop is being used contrary to tehbazari rules and regulations and whether AC has been installed on the roof contrary to tehbazari conditions. The report of Local Commissioner was filed on 28.4.10. Defendant no.1 had objected to the report of Local Commissioner as LC has not complied with the orders of this court. Report was filed by Licensing Inspector dt. 26.5.2009 according to which the AC installed in the rooftop was stated to have been removed by the owner himself. However, the photographs taken during spot inspection by LC showed outdoor units of two ACs installed on the rooftop.
6. Thereafter, a civil misc. application was filed before the Hon'ble High Court of Delhi wherein the Hon'ble High Court of Delhi vide its order dt. 27.5.2011 had directed the defendant that "to ensure that flow of hot air from air conditioner be caused to be released in a lateral directions of the exhaust away from the residence of the plaintiff by at Suit No. 126/10 7/37 pages least 3 feet so that the same does not cause discomfort to the plaintiff."
7. To ensure the compliance of above said order of Hon'ble High Court of Delhi, a Local Commissioner was appointed vide order dt. 6.9.11 to visit the suit premises and report whether that has been installed to ensure that flow of the hot air from the AC is released in a lateral direction of the exhaust away from the residence of the plaintiff by at least 3 feet so that the same does not cause discomfort to the plaintiff. LC report was filed on 14.9.11. As the issue in controversy between the parties could not be resolved, therefore, the court proceeded to frame the issues.
8. Following issues were framed by this Court:
1. Whether the plaintiff is entitled to a decree of permanent injunction as prayed for ? OPP
2. Whether defendant no. 1 has violated the provisions of Delhi Municipal Corporation Act by digging up the basement illegally and as such, defendant no. 2 should be directed to take action against defendant no. 1? OPP Suit No. 126/10 8/37 pages
3. Whether plaintiff is not entitled to any relief in view of Section 41 (i), Specific Relief Act,? OPD1
4. Whether the plaintiff has a locus to institute the present suit? OPD1
5. Whether the plaintiff is entitled to any other relief ? If so, what?
9. In support of his case plaintiff examined himself as PW1 and tendered his evidence by way of affidavit Ex.PW1/X and relied on the following documents :
1. Ex. PW 1/ 1 (Colly.) copy of legal notice dated 03.10.2007 along with postal receipt.
2. Ex. PW 1/ 2 reply dated 18.10.2007 to Ex. PW 1/1.
3. Ex. PW 1/ 3 copy of rejoinder dated 10.11.2007 to Ex. PW 1/ 2.
4. Ex. PW 1/ 4 and Ex. PW 1/ 5 copy of notice under Section 417 (1) DMC Act, 1957 along with postal receipt.
5. Ex. PW 1/6 to Ex. PW 1/ 11 which are RTI records consisting of 6 pages.
6. Ex. PW 1/ 12 local commissioner's report (objected to on Suit No. 126/10 9/37 pages the mode of proof)
7. Ex. PW 1/ 13 order of the Hon'ble High Court dated 27.05.2011.
8. Ex. PW 1/ 14 site plan. (objected to on the mode of proof)
9. Ex. PW 1/ 15 and Ex. PW 1/ 16 photographs.
10.Sh. Ram Kumar, OI Building, Central Zone, MCD office at Jal Vihar, Lajpat Nagar, New Delhi examined as PW2 and cross examined by Ld. Counsel for the defendant.
11.Sh. Amit Dixit, Licensing Inspector, MCD, Central Zone, New Delhi examined as PW3 to prove documents which are already exhibited as Ex.PW1/9 to Ex.PW1/11.
12.Thereafter plaintiff evidence was closed vide separate statement of plaintiff on 10.2.2012.
13.Thereafter, evidence was led on behalf of defendants.
Defendant no.1 examined himself as DW1 and was cross examined by the counsel for the plaintiff and the evidence was closed on behalf of defendant no.1 vide his statement dt. 11.10.12. Defendant no.2 chose not to lead any evidence and statement of Ld. Counsel for the defendant no.2 to the same effect was recorded on 11.10.2012. Thereafter, defendant Suit No. 126/10 10/37 pages evidence was closed vide order of this court dt. 11.10.2012.
14.Final arguments were heard on 28.01.2012.
15.This court has heard the counsel for both the parties and perused the record.
16.Issue wise findings are as under:
Issue no1.
Whether the plaintiff is entitled to a decree of permanent injunction as prayed for ? OPP
17. Onus to prove this issue was on the plaintiff. According to Section 38 of Specific Relief Act, in order to be entitled to the decree of permanent injunction, party has to establish that there is a right in his favour and the def. has infringed or is likely to infringe the right of plaintiff. In the present matter, plaintiff has averred that he has a easementary right as well as the right to be protected against nuisance as defined in Section 2 (ee) of DMC Act.
18.Plaintiff had been residing in the suit property since last 52 years and therefore has easementary right to fresh air and light. It is plaintiff's claim that his easementary right had been Suit No. 126/10 11/37 pages infringed by the def. no.1 by placing two split condenser units (one of 3 ton and other of 1.05 ton) on the roof of tehbazari area in front of the windows of plaintiff as the hot air emitted by the AC units is heating up the living room of plaintiff. Plaintiff had issued notice to def.no.1 for removing AC units from arch on 03.10.2007 which is exhibited as Ex.PW1/1 (colly.) as well as notice was issued to MCD which is Ex.PW1/4 and Ex.PW1/5. Plaintiff has filed photographs which are Ex.PW1/15 and Ex.PW1/16 in support of his claim showing outdoor AC units lying in front of the windows of plaintiff. Plaintiff has also relied on site plan Ex.PW1/14 to show location of AC units on roof of tehbazari.
19.Def.no.1 was granted tehbazari right by virtue of the allotment letter issued by MCD on 8.7.1985 which is exhibited as Ex.PW1/9. According to allotment letter Ex.PW1/9, def.no.1 was granted permission to cover the shop granted on tehbazari as per the specifications by corporation on following conditions:
"1. The individual shopkeeper will apply for the covered tehbazari site separately.
Suit No. 126/10 12/37 pages
2. The tehbazari fee as fixed by Commissioner from time to time for this covered tehbazari will be paid in advance for three months by the allottee together with arrears, if any.
3. The tehbazari site so allotted will be covered by the shopkeeper at his own cost as per specification of MCD.
4. The shopkeeper allottee of covered tehbazari will not claim title of the site which is being allotted to him purely on covered tehbazari basis.
5. The shopkeeper will withdraw the said Court case by 9th July, 1985."
20.According to Indian Easement Act, 1882, easement is defined as under:
"4. "Easement" defined. An easement is a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of certain other land not his own. Dominant and servient heritages and owners The land for the beneficial enjoyment of which the right exists is called the dominant heritage, and the owner or occupier thereof the dominant owner; the land on which the liability is imposed is called the servient heritage, and the owner or occupier thereof the servient owner.
Suit No. 126/10 13/37 pages Explanation: In the first and second clauses of this section, the expression "land" includes also things permanently attached to the earth; the expression "beneficial enjoyment" includes also possible convenience, remote advantage, and even a mere amenity; and the expression "to do something" includes removal and appropriation by the dominant owner, for the beneficial enjoyment of the dominant heritage, or any part of the soil of the servant heritage or anything growing or subsisting thereon."
21.Section 15 of the Indian Easement Act, 1882 provides right to light and fresh air to the dominant owner of the property and reads as follows:
"15. Acquisition by prescription. Where the access and use of light or air to and for any building have been peaceably enjoyed therewith, as an easement, without interruption, and for twenty years, and where support from one person's land, or things affixed thereto, has been peaceably received by another person's land subjected to artificial pressure, or by things affixed thereto, as an easement, without interruption, and for twenty years, and where a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement and as of right, without interruption, and Suit No. 126/10 14/37 pages for twenty years, The right to such access and use of light or air, support, or other easement, shall be absolute. Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contexted."
22.Therefore, the plaintiff being dominant owner of his property has right to fresh air and light in view of Section 4 read with Section 15 of the Indian Easement Act, 1882 and can enforce his easementary right against the property of servient owner (the property against which the right is enforced), if any action of the servient owner infringes his easementary right.
23.In order to ascertain the legality of act of def.no.1 in placing the outdoor units of two ACs on the roof of tehbazari area, right of the def.no.1 to place the outdoor units of two ACs has to be examined. Def.no.1 has stated in his WS that both the AC units had been installed on the roof of tehbazari since more than last 10 years and in 1979, def. had installed one 1.5 ton unit and 10 years later another unit was installed and about two years back the bigger unit was replaced with new split AC unit. Def.no.1 during his cross examination had deposed that he was Suit No. 126/10 15/37 pages granted permission to use roof of tehbazari and the ACs were installed on the roof of tehbazari in 1985.
24.Plaintiff has averred that def. no.1 has no right to place the outdoor units of his ACs on the roof of tehbazari portion assigned to him, as the same is against the terms and conditions of the tehbazari allotted to the def. Plaintiff has relied on Ex.PW1/9 to show the terms and conditions applicable on tehbazari units. According to Ex.PW1/9, the conditions applicable to tehbazari are listed as follows:
"1. The individual shopkeeper will apply for the covered tehbazari site separately.
2. The tehbazari fee as fixed by Commissioner from time to time for this covered tehbazari will be paid in advance for three months by the allottee together with arrears, if any.
3. The tehbazari site so allotted will be covered by the shopkeeper at his own cost as per specification of MCD.
4. The shopkeeper allottee of covered tehbazari will not claim title of the site which is being allotted to him purely on covered tehbazari basis.
5. The shopkeeper will withdraw the said Court case by 9th July, 1985."
Suit No. 126/10 16/37 pages
25. Def.no.2/MCD in its WS has admitted on merits that neither the plaintiff nor def.no.1 has any right to use the roof of the tehbazari portion.
26.PW3 Sh. Amit Dixit, Licensing Inspector, MCD, Central Zone had admitted during his cross examination that there are restrictions on the usage of tehbazari portion and had denied that no restrictions are imposed on usage of roof of tehbazari property.
27.According to Ex.PW1/9, def. no.1 had the right to cover the tehbazari, however, he could not claim title over the tehbazari.
Further, def.no.2/MCD had admitted in its WS that neither the plaintiff nor def.no.1 had any right to use the roof of tehbazari portion. Def.no.2/MCD is the authority granting tehbazari right to def.no.1 and therefore, the authority granting the right of tehbazari has itself admitted that tehbazari right was granted to def.no.1 without any right to use the roof over the tehbazari portion. Further, Licensing Inspector of MCD, Central Zone/PW3 has deposed in his evidence that there are restrictions on the usage of tehbazari portion, thus, Suit No. 126/10 17/37 pages corroborating the admission made by def.no.2 in its WS.
28.Thus, on the basis of admission made by def.no.2 in its WS, testimony of PW3 and the documentary evidence on record including Ex.PW1/9, it can be safely said that tehbazari right was allotted to def.no.3 without any right to use the roof of the tehbazari portion for any purpose and def. no.1 has no legal right to use roof of tehbazari portion, either for placing outdoor units of AC or for placing sign/advertisement board thereupon.
29.However, plaintiff is seeking relief of permanent injunction against def.no.1 and the principles governing grant of permanent injunction are subject to Section 41 of Specific Relief Act, 1963 as well as by law of equity. Injunction is a discretionary relief and it can be withheld even where the party has established his entitlement to such relief if it attracts Section 41 of Specific Relief Act, 1963. Section 41 of Specific Relief Act, 1963 lay downs various conditions under which relief of permanent injunction can be denied even after plaintiff has established his right for grant of permanent injunction.
Suit No. 126/10 18/37 pages
30.Section 41 of Specific Relief Act, 1963 reads as under:
"41. Injunction when refused. An injunction cannot be granted
(a) to restrain any person from prosecuting a judicial proceeding pending at the institution of the suit in which the injunction is sought, unless such restraint is necessary to prevent a multiplicity of proceedings;
(b) to restrain any person from instituting or prosecuting any proceeding in a court not subordinate to that from which the injunction is sought;
(c) to restrain any person from applying to any legislative body;
(d) to restrain any person from instituting or prosecuting any proceeding in a criminal matter;
(e) to prevent the breach of a contract the performance of which would not be specifically enforced;
(f) to prevent, on the ground of nuisance, an act of which it is not reasonably clear that it will be a nuisance;
(g) to prevent a continuing breach in which the plaintiff has acquiesced;
(h) when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust;
(i) when the conduct of the plaintiff or his agents has been such as to disentitle him to the assistance of the court;
(j) when the plaintiff has no personal interest in the matter."
Suit No. 126/10 19/37 pages
31. Plaintiff has stated in para 4 of his own plaint that "plaintiff humbly submits that for the last number of years, the defendant no.1 has been misusing the 'Arched Roof' by installing a "Split condenser unit" of an air conditioner and at the same time put up a huge board of about 4' height"
Further in para 7 of his plaint, plaintiff has stated that "about 7 years back, the plaintiff approached the defendant no.1 in that behalf and apprised him of serious health hazards which is being caused to him on account of the hot air emitting out of a small split unit"
Plaintiff has alleged that about 7 years back, he apprised def.
no.1 of health hazard causing from hot air emitted from AC units. However, no documents have been placed on record by plaintiff supporting this fact.
32. In the affidavit, plaintiff/PW1 has deposed that :
"In 1998, def.no.1 put two split air conditioner units of 1.5 ton on the arch and has been misusing the arch but in May or June, 2006, def.no.1 has installed a big 3 ton split condenser unit along with 1.05 ton unit of air conditioner as well as put up a huge board of about 4 feet height."
Suit No. 126/10 20/37 pages
33.Therefore, it appears that plaintiff had initially not raised any objection when the def.no.1 started using arch /roof of tehbazari portion by installing split condenser unit and complained to def.no.1 of his act only in 2007 and brought the present action only in 2008 on the ground that def.no.1 has installed on the roof of tehbazari one 3 ton AC along with one 1.05 ton AC recently.
34.From plaintiff's own deposition, it is clear the since 1998 till 2007, plaintiff did not object to the act of def.no.1 of placing his two split AC units on the arch of tehbazari and had put up with the hot air emitted by above two units of split ACs since then. In 2006 allegedly a 3 ton AC along with 1.05 ton AC was installed which as such did not create a new cause of action but merely added to the continuing course of action.
35.Therefore, it can be safely said that the plaintiff had slept over his right since 1998 till 2007, until the notice was issued to def.no.1 by the plaintiff for removal of the AC units. Clearly, plaintiff is guilty of delay and latches Suit No. 126/10 21/37 pages and moreover seems to have assented or acquiesced in the act of the def.no.1 till 2007 before the notice was issued. It is a well settled principle of law that injunction being an equitable relief, cannot be granted where the party is guilty of delay, latches or acquiescence.
36.Secondly, injunction is an equitable relief and as such it requires that party seeking assistance of the court must have approached the court with clean hands. In the plaint, plaintiff did not state the year in which def.no.1 had installed the two units of AC of 1.5 ton, though, he improved his version in his affidavit and plugged the factual loopholes by mentioning the year in which the AC units were installed. Further, in the plaint, plaintiff has not stated the year in which def.no.1 had installed on the roof of tehbazari one 3 ton AC along with one 1.05 ton AC. Plaintiff/PW1 has deposed in his affidavit Ex.PW1/X that plaintiff issued legal notice on 3.10.07 to the defendant no.1 to remove the two condenser unit installed by him. However, during the course of cross examination, plaintiff/PW1 had stated that notice was Suit No. 126/10 22/37 pages issued to def.no.1 on 8.9.2002. Therefore, there is an apparent contradiction between the plaintiff's averment in his affidavit and his admission made during cross examination. As such, plaintiff does not inspire any confidence.
37.Therefore, even though, plaintiff has established his easementary right of fresh air and light in his property and it has been established on the basis of oral and documentary evidence on record that def.no.1 has no right to use the arch roof of tehbazari portion for installing the two split condenser units thereupon, however, conduct of the plaintiff in having acquiesced and slept over his right for several years before initiating action against the def.no.1, does not call for assistance of this Court.
38.Accordingly, in the considered opinion of this Court, plaintiff is not entitled to equitable relief of permanent injunction on account of delay, latches and acquiescence shown by the plaintiff as well as on account of material contradictions in the statement of the plaintiff in his Suit No. 126/10 23/37 pages affidavit and his cross examination.
39.Therefore, issue no.1 is decided against the plaintiff and in favour of def.no.1.
Issue no.2 Whether defendant no. 1 has violated the provisions of Delhi Municipal Corporation Act by digging up the basement illegally and as such, defendant no. 2 should be directed to take action against defendant no. 1? OPP
40.The onus to prove this issue was on plaintiff. Plaintiff has averred in his plaint that def.no.1 had dugged illegal basement under his shop. Plaintiff had deposed in his evidence by way of affidavit Ex.PW1/X that only in January, 2008, he came to know about the alleged illegal basement when the employee of def.no1 was going towards the basement. Def.no.2/MCD had stated in its WS that when the basement was being dugged, it was booked vide file no. 116/B/UC/CZ/1990 dt. 13.3.1990 and after following due process of law, demolition order has also been passed against the alleged illegal basement.
41.However, PW2/OI Building, Central Zone, MCD who was Suit No. 126/10 24/37 pages summoned at the behest of the plaintiff has stated that the file bearing no.116/B/UC/CZ/1990 dt. 13.3.1990 pertaining to property no. 89, Central Market, Lajpat Nagar has been misplaced and accordingly he was declared hostile by the Ld. Counsel for the plaintiff.
42.Def.no.1/DW1 had accepted in his cross examination that no permission was taken from MCD before construction of basement under the shop. Plaintiff has relied upon Ex.PW1/6 to Ex.PW1/11 which is the reply sought from the MCD/def.no. 2 on the action taken against the basement booked under file bearing no.116/B/UC/CZ/1990 dt. 13.3.1990 and as per reply dt. 1.8.2011 from OI (Building), Central Zone which is Ex.PW1/6, no action had been taken in respect of the premises booked under the file bearing no.116/B/UC/CZ/1990 dt. 13.3.1990.
43.During the course of arguments, def.no.1 has relied on National Capital Territory of Delhi Laws (Special Provision) Second Act, 2011 which was notified on 23.12.2011. Def.no.1 has drawn attention of the court on Section 3 (2) and Section 3 (3) of the National Capital Territory of Delhi Laws (Special Suit No. 126/10 25/37 pages Provision) Second Act, 2011 to state that any punitive action is deemed to have been suspended till 31.12.2014.
44.Section 3 of the National Capital Territory of Delhi Laws (Special Provision) Second Act, 2011 reads as under:
"3. Enforcement to be kept in abeyance.(1) Notwithstanding anything contained in any relevant law or any rules, regulations or byelaws made thereunder, the Central Government shall before the expiry of this Act, take all possible measures to finalise norms, policy guidelines, feasible strategies and make orderly arrangements to deal with the problem of encroachment or unauthorised development in the form of encroachment by slum dwellers and jhuggijhompri clusters, hawkers and urban street vendors, unauthorised colonies, village abadi area (including urban villages), and their extensions, existing farm houses involving construction beyond permissible building limits and schools, dispensaries, religious institutions, cultural institutions, storages, warehouses and godowns used for agricultural inputs or produce (including dairy and poultry) in rural areas built on agricultural land, as mentioned below:
(a) orderly arrangements for relocation and rehabilitation of slum dwellers and jhuggijhompri clusters in Delhi in accordance with the provisions of the Delhi Urban Shelter Improvement Board Act, 2010 (Delhi Act 7 of 2010) and the Master Plant for Delhi, 2021 to ensure its development in a sustainable, planned Suit No. 126/10 26/37 pages and humane manner;
(b) scheme and orderly arrangements for regulation of urban street vendors in consonance with the national policy for urban street vendors and hawkers as provided in the Master Plan for Delhi, 2021;
(c) orderly arrangements pursuant to guidelines and regulations for regularisation of unauthorised colonies, village abadi area (including urband villages) and their extensions, as existed on the 31st day of March, 2002, and where construction took place even beyond that date and up to the 8th day of February, 2007;
(d) policy regarding existing farm houses involving construction beyond permissible building limits;
(e) policy or plan for orderly arrangement regarding schools, dispensaries, religious institutions, cultural institutions, storages, warehouses and godowns used for agricultural inputs or produce (including dairy and poulty) in rural areas built on agricultural land and guidelines for redevelopment of existing godowns clusters (including those for a storage of nonagricultural goods) required to cater to the needs of the peopld of the National Capital Territory of Delhi;
(f) orderly arrangements in respect of special areas in accordance with the Building Regulations for Special Area, Unauthorised Regularised Colonies and Village Abadis, 2010 within overall ambit of Master Plan in force; and
(g) policy or plan for orderly arrangements in all other areas of the National Capital Territory of Delhi in Suit No. 126/10 27/37 pages consonance with the Master Plan on its review. (2)Subject to the provisions contained in subsection (1) and notwithstanding any judgment, decree or order of any court, status quo
(i) as on the 1st day of January, 2006 in respect of encroachment or unauthorised development;
(ii) in respect of unauthorised colonies, village abadi area (including urban villages) and their extensions, which existed on the 31st day of March, 2002 and where construction took place even beyond that date and up to the 8th day of February, 2007, mentioned in subsection (1);
(iii) in respect of special areas as per the Building Regulation for Special Area, Unauthorised Regularised Colonies and Village Abadis, 2010; and
(iv) in respect of all other areas within the National Capital Territory of Delhi as on the 8th day of February, 2007, shall be maintained.
Explanation. For the purpose of this subsection, it is hereby clarified that any development approved by the competent authority or the local authority under the relevant laws and the rules or regulations made thereunder, including repairs permissible under the building byelaws in force, shall continue to remain permitted.
(3)All notices issued by any local authority for initiating action against encroachment or unauthorised Suit No. 126/10 28/37 pages development in respect of areas referred to in sub section (1), shall be deemed to have been suspended and no punitive action shall be taken till the 31st day of December, 2014, if
(a) it is constructed prior to the dates specified for different areas as enumerated in subsection (2);
(b) it confirms to the safety standards as in force or such other safety requirement as may be notified by the Central Government; and
(c) it complies with the directions with respect to safety, if any, issued by the Central Government:
Provided that in case punitive action is required to be taken by any local authority, prior approval of the Administrator of the National Capital Territory of Delhi or the officer authorised by him in this behalf, shall be obtained by the authority or officer concerned."
45. Def.no.1 has also relied on the judgment of Hon'ble High Court of Delhi in Chand Ram V. DDA & Others, WP (C) 1445/2011 where the Hon'ble High Court of Delhi had taken cognizance of the fact that MCD is not in a position to initiate demolition action in view of protection granted under National Capital Territory of Delhi Laws (Special Provision) Second Act, 2011 which has been extended upto 31.12.2014.
46.Therefore, the basement constructed under the shop of def.no.
Suit No. 126/10 29/37 pages 1 is admittedly illegal construction and it had already been booked by MCD/def.no.2 and the action has already been directed against the illegal construction of basement by def.no.
2 vide its file no.116/B/UC/CZ/1990 dt. 13.3.1990.
47.Moreover, in light of Section 3 (2) (i) of National Capital Territory of Delhi Laws (Special Provision) Second Act, 2011, status quo is to be maintained in respect of encroachment on unauthorised development and further according to Section 3 (3) of National Capital Territory of Delhi Laws (Special Provision) Second Act, 2011 any action initiated against unauthorised construction is deemed to be suspended till 31.12.2014.
48.In view of the aforesaid position, this Court cannot direct def.no.2/MCD to take any immediate punitive action against unauthorised basement in the suit property. Moreover, in his plaint, plaintiff had only sought a direction from this Court to def.no.2 to initiate action against def.no.1 for digging up illegal basement and as per submissions of def.no.2, the action has already been initiated against the illegal and unauthorised basement vide its file bearing no.116/B/UC/CZ/1990 dt.
Suit No. 126/10 30/37 pages
13.3.1990.
49.Plaintiff has prayed for direction to def.no.2/MCD for initiating action against def.no.1 for digging up illegal basement. However, any punitive action against the illegal construction by the concerned authorities is kept in abeyance in view of National Capital Territory of Delhi Laws (Special Provision) Second Act, 2011 till 31.12.2014. Therefore, at this stage, this Court cannot direct any immediate relief against the illegal basement constructed in the suit property and as the illegal basement in the suit property has already been booked by def.no.2/MCD, no further directions are required to be given to MCD for initiating action against the illegal basement.
Issue no.3 Whether plaintiff is not entitled to any relief in view of Section 41 (i), Specific Relief Act,? OPD1
50.Onus to prove this issue was on def.no.1. Def.no.1 had raised preliminary objection in his WS that plaintiff is guilty of delay, latches, waiver and acquiescence as the plaintiff has Suit No. 126/10 31/37 pages admitted that the unit of AC as well as the display board was installed several years ago. Def.no.1 has deposed in his evidence by way of affidavit Ex.DW1/X that the def.no.1 was granted pakka covered tehbazari rights by def.no.2 in 1985 and after the construction of pakka roof on the said tehbazari site, AC unit was shifted to the pakka tehbazari side and the display board was affixed thereupon. DW1 had reiterated in his cross examination that the AC was installed on the roof of tehbazari in 1985.
51.Plaintiff /PW1 has deposed before this Court in his affidavit Ex.PW1/X that he had been residing at the address above the shop of def.no.1 since last 52 years and def.no.1 had put two split AC units of 1.5 ton on the arch in 1998. Plaintiff /PW1 has further deposed that in May or June, 2006, def.no.1 installed 3 ton split condenser along with 1.05 ton unit of AC as well as put up a huge board of 4 feet height on roof of tehbazari. Plaintiff has averred in his plaint that recently def. no.1 installed big 3 ton AC along with 1.05 ton unit on tehbazari portion and in summer of 2007 plaintiff asked def.no.1 for the first time to remove the above said two units of Suit No. 126/10 32/37 pages AC, however, no specific year has been mentioned in plaint in which one AC of 3 ton and another of 1.05 ton was installed. However, in the affidavit filed by plaintiff/PW1, the facts have been improved upon and PW1 has deposed in his affidavit Ex.PW1/X that in May or June, 2006, def.no.1 installed a 3 ton split condensor unit along with 1.05 ton unit of AC and put up a huge board of 4 feet height. Therefore, during his examination in evidence, plaintiff has improved upon his version stated in the plaint.
52.Therefore, it is apparent from plaintiff's own deposition that the plaintiff had acquiesced in the act of the def.no.1 when def.no.1 had initially placed two AC units of 1.5 tons on the arch in 1998 and since then had not taken any steps or filed any complaint before MCD except till the legal notice was issued in 2007 to the defendant no.1 and the officials of MCD.
53.Plaintiff has himself admitted in his plaint that for last number of years, def.no.1 had installed split condenser unit of AC and a huge board of 4 feet height, which shows that plaintiff had never objected to the installation of the unit of AC and the huge board of 4 feet height until 2007 and thus, had impliedly Suit No. 126/10 33/37 pages assented to or acquiesced in the aforesaid act of def.no.1.
54.Secondly, plaintiff had averred that def.no.1 had illegally dugged basement under his shop. Plaintiff/PW1 has deposed before the court vide affidavit Ex.PW1/X that only in January 2008, plaintiff came to know about the basement under the shop of def.no.1 only when he noticed employee of def.no.1 going towards the basement. However, it is highly improbable for a resident of the same flat who had been residing on the first floor of the flat since last 52 years to have been unaware of the basement dugged under the shop of the ground floor. Moreover, the plaint is completely silent as to when plaintiff came to know about the digging of the alleged illegal basement and the testimony of PW1 is only an improvement over the facts narrated in the plaint.
55.Therefore, it appears that plaintiff has acquiesced in both the acts of def.no.1 of placing two units of AC on Arch Roof of tehbazari as well as digging of illegal basement and thus, relief asked for by plaintiff cannot be granted as it is hit by Section 41 (i) of Specific Relief Act.
56.Accordingly, the issue no.3 is decided in favour of def. no.1 Suit No. 126/10 34/37 pages and against the plaintiff.
Issue no. 4 Whether the plaintiff has a locus to institute the present suit? OPD1
57.The onus to prove this issue was on def.no.1 who had raised the preliminary objection in his WS that the plaintiff is neither the owner of shop no. 89, Central Market,Ground Floor, Lajpat Nagar, New Delhi nor has any right, title or interest thereon and has testified the same in his evidence by way of affidavit Ex.DW1/X.
58.The plaintiff has filed the present suit only to restrain the defendant no.1 from depriving the plaintiff from the use and enjoyment of plaintiff's property by removing two split condenser units from the front of the windows of the plaintiff and a direction to def.no.2 to initiate action against def.no.1 for construction of illegal basement.
59.Plaintiff being the dominant owner in respect of his property i.e. First Floor, Flat no. 44, Central Market, Lajpat Nagar has easementary right to enjoy fresh air and light and can enforce Suit No. 126/10 35/37 pages this easementary right against a property of servient owner.
60.Moreover, plaintiff is residing on the first floor of the property Flat no. 44, Central Market, Lajpat Nagar above the shop of def.no.1 underneath which the alleged illegal basement has been constructed. Therefore, if any statutory action is taken by the concerned officials against illegal construction/basement, plaintiff's right to enjoy his own property will also be jeopardized and therefore, for uninterrupted and peaceful enjoyment of his property and as dutiful citizen, he is entitled to bring action against any illegal construction being carried out in his flat.
61.Accordingly, issue no. 4 is decided in favor of the plaintiff and against def.no.1.
Issue no. 5 Whether the plaintiff is entitled to any other relief ? If so, what?
62.In view of the findings reached on the issues herein above and specifically on issue no.1, this court is of the opinion that the Suit No. 126/10 36/37 pages plaintiff is not entitled to reliefs prayed for by the plaintiff against defendants. Accordingly, the suit is dismissed.
63.No orders as to cost.
64.Decree sheet be prepared accordingly.
65.File be consigned to record room.
Announced in the open Court (Ritu Singh) on 08.02.2013 Civil Judge04 / South District/Delhi Suit No. 126/10 37/37 pages