Delhi District Court
Mst. Naseem Ishaque vs Mst. Azra Begum on 30 September, 2013
1
IN THE COURT OF SHIRISH AGGARWAL, CIVIL JUDGE -1
CENTRAL DISTRICT, DELHI
SUIT NO: 608/09
UNIQUE CASE ID: 02401C0276392009
Mst. Naseem Ishaque
D/o Late Md. Ishaque,
1510, Ishaque Building,
Pahari Ranjan, Chitli Qabar,
Delhi-110006
...Plaintiff
VERSUS
1.Mst. Azra Begum, Wd/o Iqbal Saeed,
2. Faizal Saeed, S/o Late Iqbal Saeed,
3. Saba Saeed, D/o Late Iqbal Saeed,
4. Zoha Saeed, D/o Late Iqbal Saeed,
5. Khalida Saeed, D/o Late Iqbal Saeed, All R/o 1506, Ishaq Building, Pahari Ranjan, Chitli Qabar, Delhi-110006
6. Municipal Corporation of Delhi Town Hall, Chandni Chowk, Delhi-110006 .... Defendants Date of Institution : 01.7.2009 Date of Pronouncing Judgment : 30.9.2013 SUIT FOR PERMANENT AND MANDATORY INJUNCTION
1. By this judgment, I shall decide suit for permanent and mandatory injunction.
Naseem Ishaque v. Azra Begum & Ors. Suit No. 608/09 Page No:1/10 2 Version of Plaintiff
2. The relevant facts as pleaded in the plaint are that the plaintiff is owner of property bearing no.1506, Ishaque Building, Pahari Ranjan, Chitli Qabar, Delhi-10006 as shown in red colour in the site plan filed alongwith plaint (hereinafter referred to as "the suit property"). It is further stated that defendants no.1 to 5 have been occupants of this property. It is stated that defendants no.1 to 5 have illegally done further construction, addition and alteration in the suit property without the consent of the plaintiff. It is further stated that defendants no.1 to 5 intend to do further construction, addition and alteration in the suit property. It is stated that the construction, addition and alteration is illegal in as much as, consent of the owner was not sought before doing the same nor was sanction obtained from defendant no.6 as is required under Section 332 of Delhi Municipal Corporation Act, 1957. It is further stated that construction, addition and alteration has been done in contravention of building bye laws. It is also mentioned that due to construction, addition and alteration, the building in which the suit property is situated may collapse as it was constructed way back in 1940s. It is stated that if the building collapses, it will result in loss of lives and properties of inhabitants of the building and of adjoining properties.
3. It is further stated that the plaintiff requested the defendants no.1 to 5 to not construct or make any addition and alteration in the suit property. However, the defendants did not abstain from committing the aforementioned illegal acts. When the defendants continued in construction, addition and alteration, the plaintiff filed complaints to the police and defendant no.6. However, no action was taken by them against defendants no.1 to 5.
4. Therefore, plaintiff has filed the present suit for restraining defendants no.1 to 5 from raising any construction in the suit property without obtaining requisite sanction and permission from defendant no.6. It has Naseem Ishaque v. Azra Begum & Ors. Suit No. 608/09 Page No:2/10 3 further been prayed that defendants no.1 to 5 be directed to demolish the unauthorized construction which has already been carried out in the suit property and to restore it to its original position. It has further been prayed that defendant no.6 be directed to take action against defendants no.1 to 5 by stopping construction, sealing, demolition and prosecution of wrong doers.
Version of Defendants
5. Defendants no.1 to 5 have not filed Written Statement. In the Written Statement filed by defendant no.6, it is stated that the suit is barred by Sections 477 & 478 of Delhi Municipal Corporation Act, 1957. It is further stated that the suit property was inspected on 16.01.2010 and it was found to consist of Ground Floor, First Floor and Second Floor. It is further stated that the same was without any sanctioned building plan. It is also stated that as per visual inspection, it was revealed that the property is old and no new construction has been raised in it in the recent past. It is further stated that no building material was found at the site nor was any unauthorized construction going on.
Issues
6. The following are the issues framed by the Ld. Predecessor of the Court by order dated 07.12.2011:
1. Whether the plaintiff is entitled to the decree of permanent injunction as prayed for? OPP
2. Whether the plaintiff is entitled to the decree of mandatory injunction as prayed for? OPP
3. Whether no unauthorized construction raised by the defendant no.1 to 5? OPD-6
4. Relief Evidence
7. To prove her case, the plaintiff examined herself as PW1. She deposed the facts as mentioned in the plaint and relied upon the following documents:
Naseem Ishaque v. Azra Begum & Ors. Suit No. 608/09 Page No:3/10 4 Ex.PW1/1 : Site plan Ex.PW1/2 : Copy of rent receipt Ex.PW1/3 to Ex.PW1/7 : Photographs Ex.PW1/8 & Ex.PW1/9 : Copy of complaints submitted to MCD & Police Ex.PW1/10 : Photograph showing change in height of ceiling
8. She further stated that during pendency of the suit, defendants no. 1 to 5 completed construction in the suit property by raising the height of the roof and additions, alterations and construction in the shape of kitchen and bathroom in the open court yard was done by them. It was further deposed that on the date when inspection was conducted by defendant no.6, defendants no.1 to 5 had completed their construction work. It is further stated that even though defendant no.6 admits that there is no sanctioned building plan, it has not booked the construction.
9. Plaintiff's evidence was closed on 22.7.2013.
10. Defendants' evidence was closed on 08.8.2013.
11. I have perused the record and have heard arguments. The suit has been filed within the period of limitation. This court has jurisdiction to try the present suit. The issue-wise findings are as under:
Issue No.1 Whether the plaintiff is entitled to the decree of permanent injunction as prayed for? OPP
12. Onus to prove this issue was upon plaintiff. The plaintiff has prayed for permanent injunction to restrain defendants no.1 to 5 from raising any construction in the suit property without obtaining requisites sanction and Naseem Ishaque v. Azra Begum & Ors. Suit No. 608/09 Page No:4/10 5 permission from defendant no.6 as is provided under Delhi Municipal Corporation Act, 1957.
13. It has been deposed by the plaintiff that defendants no.1 to 5 have carried out illegal construction, addition and alteration in the suit property without obtaining requisite sanction and permission from defendant no.6. This gave a cause of action to plaintiff to institute the present suit.
14. Sections 332, 333 & 334 of Delhi Municipal Corporation Act, 1957 require that sanction be obtained from the Commissioner in certain cases. The plaintiff has testified that the suit property is within the jurisdiction of Municipal Corporation of Delhi. This testimony has gone unchallenged and uncontroverted. Therefore, in cases prescribed in Sections 332, 333 & 334 of Delhi Municipal Corporation Act, 1957, obtaining sanction is mandatory. Thus, defendants no.1 to 5 cannot raise construction in the suit property without obtaining sanction from the Commissioner as is provided Delhi Municipal Corporation Act, 1957. Therefore, this issue is decided in favour of the plaintiff and against the defendants.
Issue No.3 Whether no unauthorized construction raised by the defendant no.1 to 5? OPD-6
15. Onus to prove this issue was upon defendant no.6. Defendant no.6 has not led any evidence to prove that no unauthorized construction has been done by defendants no.1 to 5.
16. On the other hand, the plaintiff has deposed that defendants no.1 to 5 have illegally done construction, addition and alteration in the suit property without the consent of the plaintiff. To substantiate that defendants no.1 to 5 have carried out construction, addition and alteration in the suit Naseem Ishaque v. Azra Begum & Ors. Suit No. 608/09 Page No:5/10 6 property, plaintiff has proved photographs of the suit property as Ex.PW1/3 to Ex.PW1/7. It has been testified that the construction, addition and alteration is illegal in as much consent of the owner was not sought before doing the same nor was sanction obtained from defendant no.6 as is required under Section 332 of Delhi Municipal Corporation Act, 1957. It has further been deposed that construction, addition and alteration has been done in contravention of building bye laws.
17. It has further been testified that during pendency of the suit, defendants no.1 to 5 completed construction in the suit property by raising the height of the roof. It has further been deposed that additions, alterations and construction in the shape of kitchen and bathroom in the open court yard was done by them. It was further deposed that on the date when inspection was conducted by defendant no.6, defendants no.1 to 5 had completed their construction work. Plaintiff has proved a photograph showing the change in height of ceiling as Ex.PW1/10.
18. Moreover, defendant no.6 has admitted that there is no sanctioned building plan of the suit property.
19. Also, the plaintiff has not been cross-examined. There is no reason to disbelieve the case of the plaintiff. Failure to cross-examine plaintiff implies acceptance of correctness of her testimony. Nothing has been brought on the record that could discredit the said witness or impeach her testimony. Correctness of the documents filed by the plaintiff has also not been disputed by the defendants. The defendants have also not adduced any evidence to rebut or controvert the testimony of plaintiff.
20. There is no reason to disbelieve the case of the plaintiff that defendants no.1 to 5 have carried out unauthorized construction in the suit Naseem Ishaque v. Azra Begum & Ors. Suit No. 608/09 Page No:6/10 7 property. Therefore, it is held that defendants no.1 to 5 have carried out unauthorized construction in the suit property. This issue is decided in favour of the plaintiff and against the defendants.
Issue No.2 Whether the plaintiff is entitled to the decree of mandatory injunction as prayed for? OPP
21. Onus to prove this issue was upon plaintiff. Plaintiff has prayed for mandatory injunction directing defendants no.1 to 5 to demolish the unauthorized construction carried out by them in the suit property and to restore it to its original position. She has further prayed that defendant no.6 be directed to take action against defendants no.1 to 5 by stopping them from doing construction, sealing, demolition and prosecution of wrong doers.
22. The plaintiff has admitted that she has not issued notice to defendant no.6 as is required under Section 478 of Delhi Municipal Corporation Act, 1957. In the plaint, she has prayed for exemption from service of this notice. No such exemption has been granted till date. The suit is now at the final stage of disposal. I am of the considered opinion that in case plaintiff is not exempted from service of this notice, the suit shall be liable to be dismissed. On the other hand, in case exemption is granted, no prejudice shall be caused to defendant no.6, more so because, even if the present suit is decreed in favour of the plaintiff, the defendant no.6 shall not be at a loss as by the present suit, all that the plaintiff is seeking against defendant no.6 is that it should take action against defendants no.1 to 5 in accordance with law. In these circumstances, the plaintiff is exempted from issuance and service of notice as is required under Section 478 of Delhi Municipal Corporation Act, 1957.
Naseem Ishaque v. Azra Begum & Ors. Suit No. 608/09 Page No:7/10 8
23. It has been stated in Written Statement of defendant no.6 that the present suit is barred by Section 477 of Delhi Municipal Corporation Act, 1957. I am of the considered opinion that the present suit is not barred by Section 477 of Delhi Municipal Corporation Act, 1957 as by the present suit, no relief is sought against defendant no.6 which shall prejudice it or put it at a loss.
24. The plaintiff has deposed that the plaintiff is owner of the suit property. It has already been held while deciding issue no.3 that defendants no.1 to 5 have carried out unauthorized construction in the suit property.
25. The plaintiff has testified that due to the unauthorized construction, the building in which the suit property is situated may collapse as it was constructed way back in 1940s. It has been deposed that if the building collapses, it will result in loss of lives and properties of inhabitants of the building and of adjoining properties.
26. It has further been testified that the plaintiff had requested the defendants no.1 to 5 to not construct or make any additions and alterations in the suit property. However, the defendants no.1 to 5 did not abstain from committing the aforementioned illegal acts. When the defendants no. 1 to 5 continued in construction, addition and alteration, the plaintiff filed complaints to the police and defendant no.6. To substantiate that plaintiff submitted complaints to defendant no.6, she has proved copy of the complaints submit to defendant no.6 as Ex.PW1/8 & Ex.PW1/9. However, no action was taken by them against defendants no.1 to 5.
27. It is further stated that even though defendant no.6 admits that there is no sanctioned building plan, it has not booked the construction.
28. The plaintiff has not been cross-examined. There is no reason to Naseem Ishaque v. Azra Begum & Ors. Suit No. 608/09 Page No:8/10 9 disbelieve the case of the plaintiff.
29. From the uncontroverted testimony of the plaintiff, it is evident that inspection of the suit property was carried out by defendant no.6 only after construction was completed by defendants no.1 t o 5. No reason has been cited by defendant no.6 for not taking any action even though the suit property is admittedly without any sanctioned building plan.
30. It has been proved by the plaintiff that defendants no.1 to 5 did not obtain permission of the owner of the suit property before carrying out construction, addition and alteration in the same. This is not permissible under law. The defendants no.1 to 5 ought to have taken permission of the owner of the suit property of which they are occupants, before carrying out construction, addition and alteration in the same. Necessary permissions and sanctions are as are required to be obtained under the Delhi Municipal Corporation Act, 1957 were also not taken. Moreover, in case the building collapses, it may result in loss of lives and properties. Therefore, defendants no.1 to 5 ought to demolish the unauthorized construction carried out by them in the suit property and restore it to its original position.
31. Defendant no.6 ought to be directed to take action of demolition, sealing and stopping construction as per and after following of the procedure provided under the Delhi Municipal Corporation Act, 1957.
32. However, the prayer for directing defendant no.6 to lodge prosecution against the wrong doers is not maintainable as the same is barred by section 41 (h) of Specific Relief Act, 1963. The plaintiff has an equally efficacious relief to this prayer which is provided under the Code of Criminal Procedure, 1973.
33. This issue is accordingly decided in favour of plaintiff and against Naseem Ishaque v. Azra Begum & Ors. Suit No. 608/09 Page No:9/10 10 defendants, in part.
Relief
34. In the aforementioned facts and circumstances, the suit is decreed in favour of the plaintiff and against the defendants, in part. Defendants no.1 to 5 are restrained from carrying out construction in the suit property bearing no.1506, Ishaque Building, Pahari Ranjan, Chitli Qabar, Delhi-10006 without obtaining requisite sanctions and permissions as are required to be obtained under the Delhi Municipal Corporation Act, 1957. Defendants no.1 to 5 are directed to demolish the unauthorized construction carried out in this property and restore it to its original position. Defendant no.6 is directed to take action of demolition, sealing and stopping construction in the suit property as per and after following of the procedure provided under the Delhi Municipal Corporation Act, 1957.
The plaintiff is also entitled to recover costs of the suit from the defendants no.1 to 5.
Decree sheet be prepared accordingly.
File be consigned to record room.
(ANNOUNCED IN THE OPEN COURT (SHIRISH AGGARWAL)
ON 30.9.2013) CIVIL JUDGE-1
CENTRAL DISTRICT
DELHI
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