Delhi District Court
Zulfiqar Ahmad vs Zonal Engineer (Executive) on 30 November, 2018
: 1:
IN THE COURT OF DHANASHREE DEKA, CIVIL JUDGE05:
CENTRAL DISTRICT:TIS HAZARI COURTS:DELHI
CS No. 96740/2016
ZULFIQAR AHMAD
S/O SH. SHARIFUDDIN
R/O 6360, GALI BABU BASHAT,
QASABPURA, SADAR BAZAR,
DELHI.
.....PLAINTIFF
Versus
1. ZONAL ENGINEER (EXECUTIVE)
BUILDING DEPARTMENT
CITY ZONE MCD
THROUGH COMMISSIONER
MUNICIPAL CORPORATION OF DELHI
TOWN HALL, CHANDNI CHOWK,
DELHI110006.
2. THE SHO
PS SADAR BAZAR,
DELHI110006.
3. SH. RIAZUDDIN S/O SH. BABU
R/O 6359, BABU BASHAT,
QASABPURA, SADAR BAZAR,
DELHI110006.
4. SH. NAEEM S/O SH. AHAAN
R/O 6360, BABU BASHAT,
Zulfiqar Ahmad v. Zonal Engineer & Ors. P. no. 1 of 22
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QASABPURA, SADAR BAZAR,
DELHI110006.
5. SH. BABUDDIN S/O MOHD. YAQOOB
R/O 6362, BABU BASHAT,
QASABPURA, SADAR BAZAR,
DELHI110006.
6. SMT. MOONA W/O SH. GHHAYASUDDIN
R/O 6363, BABU BASHAT,
QASABPURA, SADAR BAZAR,
DELHI110006.
.....DEFENDANTS
SUIT FOR PERMANENT, PROHIBITORY & MANDATORY INJUNCTION
Date of Institution : 20.07.2005
Date of Judgment : 30.11.2018
JUDGMENT
1. Vide this judgment, I shall decide the present suit filed by plaintiff against the defendants seeking permanent, prohibitory and mandatory injunctions. The present suit was initially filed against defendant no.1 and 2 but subsequently, by way of allowing an application under Order 1 Rule 10 CPC on 22.10.2007, defendant no. 3 to 6 were impleaded in the present suit.
2. Brief facts of the case, as per plaint, are as follows:
(a) Father of the plaintiff Sh. Sharifuddin is the owner of properties bearing municipal no. 6359 to 6363, Gali Babu Bashat, Qassabura, Delhi Zulfiqar Ahmad v. Zonal Engineer & Ors. P. no. 2 of 22 : 3: 110006 (hereinafter referred to as "suit properties"). The said properties are more than hundred years old and four tenants are residing therein for the last more than 50 years. The suit properties are in a dilapidated condition and are likely to collapse. Local authorities were informed about the danger to the suit properties on 30.06.97 and 24.06.2002, when the balcony and chhajja of the suit properties had collapsed.
(b) Notices were served upon the tenants regarding the dangerous condition of the suit properties, asking them to vacate the same with immediate effect. Some tenants have already vacated part of the suit properties in their possession while others have locked certain part which were in their possession. MCD is bound to take action of demolition and grant permission for reconstruction of the suit property to the plaintiff/landlord only, but MCD is ignoring to do the same.
In this background, plaintiff has filed the present suit against the defendant seeking issuance of direction to the MCD, to initiate demolition action with the help of defendant no.2, to grant permission to the plaintiff to reconstruct the suit properties according to law and to direct the defendant not to grant permission to carry out the repairs in the suit properties to any person other than the family of the plaintiff.
3. Defendant no.1 filed its WS wherein it denied the averments in the plaint and averred that the suit is barred by provisions of Sections 477/478 and Section 3 of The Delhi Municipal Corporation(hereinafter referred to as "DMC") Act,1957.
Zulfiqar Ahmad v. Zonal Engineer & Ors. P. no. 3 of 22 : 4: DMC Act, 1957. It is also averred that the suit properties are not in a dangerous condition and are repairable under Clause 6.4.1 of Building Byelaws (hereinafter referred to as "BBL"), for which no permission is required from the answering defendant. On merits, it is averred that the structural condition of the suit properties is not dangerous and that the same is repairable. It is stated that a letter bearing no. D/EE(Bldg)/C.Z/ 05/3137 dated 06.09.2005 was issued to the plaintiff by the answering defendant, asking the plaintiff to submit certain documents pertaining to the structural condition of the suit properties but the same has not been complied with by the plaintiff. Regarding the collapse of balcony and chhajja of the suit properties, it is averred that the plaintiff approached the defendant to declare the suit properties as dangerous but subsequently, did not take any step for the purpose, as required under the DRC Act. Defendant no.1, alleging that suit of the plaintiff is devoid of merit, prays for dismissal of the same.
4. Defendant no.3, 5 and 6, who are tenants in different portions of the suit properties, filed their joint written statement wherein they denied that the suit properties are in a dilapidated condition or that the same is beyond repair. It is averred that the present suit has been filed malafide by the plaintiff to evict the answering defendants from the suit properties as he had earlier filed an eviction petition to evict them but the same was dismissed. It is denied that on 30.06.1997 and on 24.06.2002, balcony and chhajja of the suit properties had collapsed. Denying all allegations in Zulfiqar Ahmad v. Zonal Engineer & Ors. P. no. 4 of 22 : 5: the plaint, they pray for dismissal of the suit
5. Defendant no. 4, who is a tenant in a portion of the suit properties, filed his written statement wherein he took preliminary objection that suit is not maintainable as plaintiff has not impleaded other legal heirs of late Ahsan Ali, who is the father of the defendant no.4 and the original tenant through whom, defendant no.3 became a tenant in the portion concerned of the suit properties. It is further averred that despite various requests, plaintiff did not repair the suit properties and failed to maintain the same. Alleging that the suit has been filed with malafide intent to get it vacated by the tenants, defendant no. 4 prays for dismissal of the same.
6. Defendant no.2/SHO filed a reply on 19.02.2007, stating that it has no concern with demolition/construction of properties. Subsequently, on 23.07.2016, plaintiff dropped defendant no.2 from the array of parties.
7. Plaintiff filed replication to the WS of defendant no.1 wherein he denied the averments in the said WS and reiterated the contents of the plaint.
8. On 27.04.2011, the then Ld. Presiding Officer of this court had directed a joint inspection of the suit properties by defendant no.1/MCD and the plaintiff. However, the suit properties could not be jointly inspected in terms of aforesaid order. Therefore, on 26.05.2015, court gave another opportunity to plaintiff and the defendant no.1 to carry out a joint inspection of the suit properties. On 01.06.2011, a status report was filed by MCD, wherein it was stated that there was no imminent danger to the structure of Zulfiqar Ahmad v. Zonal Engineer & Ors. P. no. 5 of 22 : 6: the suit properties. On 01.06.2011, then Ld. Presiding Officer of this court directed the Commissioner of defendant no.1/MCD to file another status report, which was filed on 10.06.2011. Plaintiff filed objection to the said status report on 23.01.2012.
9. On the basis of the pleadings, Ld. Predecessor Judge vide order dated 23.07.2016, framed the following issues.
1. Whether plaintiff is entitled to the decree of mandatory Injunction, as prayed for? OPP
2. Whether the suit is not maintainable for want of notice? OPD1
3. Whether the plaintiff want to resolve his grievances with his tenants in the garb of this suit to get it vacated? OPD1
4. Whether the suit property is not a dangerous building and MCD has no knowledge of it and MCD is not supplied with relevant documents? OPD1
5. Whether the suit of the plaintiff is without any cause of action and is liable to be dismissed u/o VII Rule 11 PC? OPD1
6. Whether MCD has taken action or not for demolition and sanction of building plan according to law and has not done its statutory and mandatory duty and deliberately ignoring its legal duty? OPD1
7. Whether the suit of the plaintiff is bad for want of necessary party? OPD4.
8. Relief.
10. Plaintiff stepped into the witness box as PW1. He tendered his evidence by way of affidavit which is Ex. PW1/A. He relied upon following documents:
(i) Original site plan as Ex. PW1/1.
(ii) Copy of sale deeds both dated 21.01.1965 as Ex. PW1/2 (OSR)
Zulfiqar Ahmad v. Zonal Engineer & Ors. P. no. 6 of 22
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and Ex. PW1/3 (OSR)
(iii) Copy of translations as Ex. PW1/2A and Ex. PW1/3A.
(iv) House tax receipt as Ex. PW1/4 (OSR) (v) Survey Report as Mark A.
PW1 was crossexamined by counsel for the defendant.
11. Vide separate statement of counsel for plaintiff recorded on 15.09.2017, PE was closed.
12. Matter was then put up for DE. On 30.05.2018, counsel for defendant no.1 stated that defendant no.1 does not wish to lead any DE. Vide separate statement of counsel for defendant no.1, DE of defendant no.1 was closed. Other defendants also did not lead any DE.
13. Matter was then put up for final arguments. Final arguments heard on behalf of plaintiff. No final arguments were advanced on behalf of defendants, despite opportunities being given. Record perused.
14. My issuewise finding are as under.
15. For the sake of a reasoned flow of the Judgment, issue Nos. 2,3,5&7, onus of which are placed upon the defendants concerned and which pertain to maintainability of the suit will be decided prior to the issue No. 1 and 4. Issue no.1 and 4 being interconnected, will be taken up and decided together. Issue no. 6 will be dealt with thereafter. Issue no. 2.
Whether the suit is not maintainable for want of notice? OPD1 Zulfiqar Ahmad v. Zonal Engineer & Ors. P. no. 7 of 22 : 8:
16. Onus of proving this issue is upon defendant no.1. In its WS, defendant no.1 has raised the preliminary objection that suit of the plaintiff is barred by Section 477 and 478 of DMC Act, 1957, as the plaintiff did not serve statutory notice upon defendant no.1, prior to filing the present suit. In his replication, plaintiff has averred that the present matter is already in the notice of the defendant no.1/MCD as the plaintiff had made an application to defendant no.1 in 1997, for demolition of the suit properties and for grant of permission to reconstruct the same. It is not the case of the defendant no.1 that plaintiff had not applied for demolition of the suit properties and for permission to reconstruct the same. As such, what transpires is that defendant no.1 had notice of the facts concerning the present matter. Even otherwise, on basis of the facts and circumstances of a case, the requirement of serving statutory notice may be waived by the court. In the present matter, the then Ld. Presiding Officer of this court had issued summons upon the defendants of the present suit, which implies by necessary implication that the requirement of a serving a separate statutory notice was waived by the court. In view of above discussion, court is of the finding that the present suit is not bad for nonserving of statutory notice upon defendant no.1. Present issue is accordingly decided in favour of plaintiff and against the defendant no.1. Issue no. 3.
Whether the plaintiff want to resolve his grievances with his tenants in the garb of this suit to get it vacated? OPD1 Zulfiqar Ahmad v. Zonal Engineer & Ors. P. no. 8 of 22 : 9:
17. Onus of proving this issue is upon defendant no.1. Defendant no.1 as well as the remaining defendants have raised the objection that the plaintiff has filed the present suit with malafide intention to evict the tenants from the suit properties. Defendant no.3, 4, 5 and 6 who are tenants in different portions of the suit properties, vide their respective written statements, have further averred that the plaintiff had earlier filed an eviction petition against them u/S 14(1)(e) r/w Section 25(B) of Delhi Rent Control(DRC) Act, thereby seeking to evict the said tenants from the suit properties. The said eviction petition, however, was dismissed. The said defendants, therefore, allege that after dismissal of the aforesaid eviction petition, plaintiff has filed the present suit with intent to get the suit properties vacated. In his replication, plaintiff admits that he had filed an eviction petition seeking to evict the aforesaid defendants from the suit properties but denies that the present suit is filed with malafide intention to evict the said defendants from the suit properties. As such, the fact that an eviction petition was filed by the plaintiff against defendant no.3, 4, 5 and 6 and that same was dismissed, is an admitted fact.
18. However, merely because an eviction petition was earlier filed against defendant no.3 to 6 and the same was dismissed, it does not per se imply that the present suit has been filed to evict the said defendants from the suit properties. A plain reading of the present plaint reveals that vide the present suit, plaintiff seeks issuance of directions to defendant Zulfiqar Ahmad v. Zonal Engineer & Ors. P. no. 9 of 22 : 10 : no.1/MCD to demolish the suit properties on the ground that the same is in a dilapidated and dangerous condition. Further, defendant no.1 and 3 to 6 have led no evidence to show that the present suit has been filed by the plaintiff with the ultimate motive of evicting defendant no.3 to 6 from the suit properties. As such, the aforesaid objection of the said defendants is a bare averment and the same is unsubstantiated by any material on record. In view of above discussion, court reaches the finding that defendant no.1 has failed to discharge the onus of proving this issue.
Present issue is accordingly decided in favour of the plaintiff and against defendant no.1.
Issue no. 5.
Whether the suit of the plaintiff is without any cause of action and is liable to be dismissed u/o VII Rule 11 PC? OPD1
19. Onus of proving this issue is upon defendant no.1. Defendant no.1, vide its written statement, has raised the preliminary objection that the plaintiff has no cause of action to file the present suit. However, defendant no.1 has not explained as to how the suit of the plaintiff is without a cause of action or how the present plaint fails to disclose any cause of action. Defendant no.1 has also not led any evidence to substantiate the aforesaid objection raised by him. Further, a bare perusal of the plaint reveals that the plaintiff has averred therein that the suit properties, of which he is the owner, is in a dilapidated condition and accordingly, he prays for issuance of directions to defendant no.1/MCD to Zulfiqar Ahmad v. Zonal Engineer & Ors. P. no. 10 of 22 : 11 : demolish the same and to further direct defendant no.1/MCD to grant permission to the plaintiff to reconstruct the suit properties.
20. In view of the above averments in the plaint, it cannot be said that the present plaint fails to disclose a cause of action. A cause of action is a bundle of facts which the plaintiff must prove in order to get the relief claimed in the plaint. Since the plaintiff in the present suit have stated the facts on the basis of which the present suit was filed, it cannot be said that the suit of the plaintiff is without any cause of action. Accordingly, present issue is decided in favour of the plaintiff and against the defendant no.1. Issue no. 7.
Whether the suit of the plaintiff is bad for want of necessary party? OPD4.
21. Onus of proving this issue is upon defendant no.4. Defendant no.4, vide his written statement, has averred that his father late Sh. Ahsan Ali was the original tenant with respect to a portion of suit properties and that he has expired leaving behind three sons namely Sh. Saleem Ali, Sh. Nadeem Ali and Sh. Naeem (defendant no.4). It is further averred that Sh. Saleem Ali and Sh. Nadeem Ali were made parties in an eviction petition filed by the plaintiff u/s 14(1)(e) of DRC Act, however, they have not been impleaded as parties in the present suit. Alleging that Sh. Saleem Ali and Sh. Nadeem Ali were necessary parties in the present suit, defendant no.4 avers that present suit is bad for nonjoinder of aforesaid parties. However, Zulfiqar Ahmad v. Zonal Engineer & Ors. P. no. 11 of 22 : 12 : defendant no.4 has led no evidence to substantiate his averment that Sh. Saleem Ali and Sh. Nadeem Ali were impleaded in the aforesaid eviction petition filed by plaintiff under Section 14(1)(e) of DRC Act. In fact, defendant no.4 has failed to lead any evidence in the present matter. Further, defendant no.4 has also not made any averment to the effect that any portion of the suit properties is currently in the possession of Sh. Saleem Ali and Sh. Nadeem Ali. As such, there is no material on record for the court to reach the finding that Sh. Saleem Ali and Sh. Nadeem Ali were necessary parties to the present suit. Accordingly, no ground is made out for dismissal of the present suit on account of nonjoinder of Sh. Saleem Ali and Sh. Nadeem Ali. Present issue is accordingly decided in favour of plaintiff and against defendant no.4.
Issue no. 1.
Whether plaintiff is entitled to the decree of mandatory Injunction, as prayed for? OPP.
Issue no.4.
Whether the suit property is not a dangerous building and MCD has no knowledge of it and MCD is not supplied with relevant documents? OPD1.
22. The onus of proving issue no.1 is upon the plaintiff and onus of proving issue no. 4 is upon defendant no.1. Defendant no.1 has the raised the defence that the suit properties are not in dangerous condition and that it is repairable by the plaintiff under Rule 6.4.1 of BBL. Defendant no.1 has further averred that plaintiff has not supplied defendant no.1 with Zulfiqar Ahmad v. Zonal Engineer & Ors. P. no. 12 of 22 : 13 : relevant documents regarding the structural construction of the suit properties, which were sought from the plaintiff. As such, issue no.4 essentially pertains to the defence raised by defendant no.1 vide its WS. In this manner, issue no.1 and 4 are interconnected and therefore, they are taken up together.
23. Case of the plaintiff is that the suit properties are in a dilapidated condition and as such, they are imminently dangerous and that despite requests made to defendant no.1 to demolish the same, defendant no.1 has not taken any step for its demolition. In order to successfully discharge the onus of proving this issue, the plaintiff is required to show that the suit properties are in an imminently dangerous condition and that defendant no.1/MCD ought to demolish the same. In support of his case, plaintiff has filed on record site plan, two sale deeds in Urdu alongwith their English translations, house tax receipt and a survey report. Perusal of the English translations of the sale deed in Ex. PW1/2A shows that half undivided portion of property bearing no. 6356 to 6363 (new), Ward no. 14, Mohalla Qassabpura, Sadar Bazar, Delhi was sold by one Sh. Qamruddin to Sh. Sharifuddin, who is the father of the plaintiff. Perusal of English translated sale deed in Ex. PW1/3A shows that vide the aforesaid deed, one Sh. Mohd. Ishaq @ Badshah had sold half undivided portion of property bearing no. 6356 to 6363 situated at Mohalla Qassabpura, Gali Babu Bashat, Sadar Bazar, Delhi to Sh. Sharifuddin i.e. father of plaintiff. On the basis of the aforesaid sale deeds, plaintiff claims that his father Sh.
Zulfiqar Ahmad v. Zonal Engineer & Ors. P. no. 13 of 22 : 14 : Sharifuddin became the owner of the suit properties and that subsequently, the plaintiff derived his title to the suit properties through his father. Ex. PW1/4 is a document showing payment of house tax for the suit properties and MarkA is a report showing the floors and rooms in the suit properties. The defendants have led no DE in the present matter. As such, the aforesaid documents filed and relied upon by the plaintiff have not been challenged. Failure to crossexamine PW1 on the aforesaid documents imply that the content of the aforesaid documents are not disputed. However, from perusal of the aforesaid documents, what is noticed is that they merely show the title of the plaintiff and of his father to the suit properties and reflect payment of house tax qua the same. Although the defendants have led no evidence, it is a well settled principle of law that the case of the plaintiff has to stand on its own footing. Thus, in order to successfully discharge the onus of issue no.1, it was incumbent upon the plaintiff to show that the suit properties are in an imminently dangerous condition. However, nothing in the documents placed on record by the plaintiff, go on to show the alleged imminent dangerous condition of the suit properties.
24. The question as to whether a particular property is in such a condition which can be termed as imminently dangerous is a matter which require leading of evidence by an expert in the field. In the present matter, it is the plaintiff who has averred and deposed that the suit properties are in an imminently dangerous condition. It is noticed that he has not filed Zulfiqar Ahmad v. Zonal Engineer & Ors. P. no. 14 of 22 : 15 : any report from any expert, certifying the suit properties to be imminently dangerous. Nor any such expert witness or architect has been summoned as a witness to depose on the point that the suit properties are in an imminently dangerous condition. As such, plaintiff has led neither documentary nor any oral evidence to substantiate the averment in the plaint that the suit properties being dangerous, ought to be demolished. Further, plaintiff could have summoned official from the MCD, which is a statutory body to deal with matters of unauthorized and dangerous constructions, so as to substantiate his averment that the condition of the suit properties is dangerous. However, for reasons best known to the plaintiff, no such official from MCD was summoned.
25. Having said that, court now proceeds to appreciate the defence raised by defendant no.1 which is to the effect that plaintiff is not entitled to an injunction thereby directing the defendant no.1 to demolish the suit properties, as it is open to the plaintiff to repair the same under Rule 6.4.1 of BBL. In his replication, plaintiff has made a bare denial of the same. In view of the aforesaid defence raised by defendant no.1 in its written statement, it was incumbent upon the plaintiff to lead evidence to show that the suit properties are not repairable under Rule 6.4.1 of the BBL and that the same ought to be demolished by the MCD. However, plaintiff has brought no material on record to establish the same. As such, the denial in the replication to the effect that the suit properties are not repairable under Rule 6.4.1 of BBL is a bare and evasive denial, Zulfiqar Ahmad v. Zonal Engineer & Ors. P. no. 15 of 22 : 16 : unsubstantiated by any material on record. Proceeding further, defendant no.1/MCD is a statutory authority to deal with dangerous constructions and to take necessary steps qua the same. When the defendant no.1 has averred to the effect that suit properties are repairable under Rule 6.4.1 of BBL by the plaintiff himself, court finds no reason to doubt the same. This is more so for reason that plaintiff has failed to bring any material on record to establish that suit properties fall outside the purview of Rule 6.4.1 of BBL and that the same ought to be demolished by MCD itself.
26. Defendant no.1, in para3 of Reply on Merits of its WS has raised another defense to the effect that vide its letter dated bearing no. D/E.E.(Bldg.)/C.z/05/3137 dated 06.09.2005, it had called upon the plaintiff to submit certain documents qua the structural condition of the suit properties but the plaintiff has not complied with the same. In his replication, plaintiff denied the content of the aforesaid para of WS of defendant no.1 as wrong and incorrect. Again, in para1 of the replication, plaintiff admits that the aforesaid letter was issued by defendant no.1 to him. However, there is no averment to the effect that plaintiff has complied with the requirements of the aforesaid letter of defendant no.1. What transpires from the above is that firstly, the aforesaid letter dated 06.09.2005 was duly sent to the plaintiff by defendant no.1, secondly, vide the said letter, defendant no.1 had called upon the plaintiff to furnish certain documents qua the structural condition of the suit properties and thirdly, plaintiff has failed to comply with the requirements of the Zulfiqar Ahmad v. Zonal Engineer & Ors. P. no. 16 of 22 : 17 : aforementioned letter.
27. Defendant no.1/MCD being a statutory body, it has a set procedure to adhere to for its functioning. Once the defendant no.1/MCD had issued a letter seeking certain documents from the plaintiff, plaintiff was required to comply with the same so as to enable defendant no.1 to carry out its procedural requirements. Without explaining why the documents sought by the MCD qua the suit properties were not provided by the plaintiff, plaintiff seeks issuance of injunction against the MCD thereby directing the defendant no.1/MCD to demolish the suit properties. This conduct of the plaintiff defies logic and does not inspire the confidence of the court.
28. Further, plaintiff has averred in the replication that vide aforesaid letter dated 06.09.2005, defendant no.1 had acknowledged the dangerous condition of the suit properties. However, plaintiff has not placed the aforesaid letter dated 06.09.2005 on record. As such, the above averment in the replication is a mere bald averment and is unsubstantiated by any material on record. Accordingly, court finds no reason to rely on the same.
29. Even if, for sake of arguments, it is assumed that the suit properties are in a ruinous condition and ought to be demolished, the plaintiff was further required to explain what prevents him from demolishing the same and why the MCD itself ought to demolish the same. Perusal of Section 348 of DRC Act shows that it provides therein that if it appears to Zulfiqar Ahmad v. Zonal Engineer & Ors. P. no. 17 of 22 : 18 : the Commissioner that any building is in a ruinous condition or is likely to fall, he may require its owner or occupier to demolish the said building. It further provides that the Commissioner may also take steps for its demolition. However, nothing in the aforesaid provision mandates the Commissioner to demolish any such building. In present suit, plaintiff has neither explained nor cited any provision of law which mandates the MCD to demolish the suit properties. Thus, plaintiff has failed to establish that the suit properties are in an imminently dangerous condition and that the MCD is liable to demolish the same.
30. At this juncture, it is pertinent to refer to the status report filed by defendant no.1 qua the suit properties and objections raised thereto by the plaintiff. The MCD, in its status report dated 10.06.2011, has submitted that the condition of the suit properties as on the date of filing the aforesaid status report, was not imminently dangerous. Plaintiff has raised various objections to the aforesaid report. One such objections raised by the plaintiff is that MCD has power to demolish properties which are dangerous and as such, it ought to have taken action to demolish the suit properties, which allegedly are imminently dangerous. This objection of the plaintiff does not inspire confidence of the court for reasons that firstly, in absence of any expert report, there is no material on record to establish that the suit properties are in an imminently dangerous condition and secondly, plaintiff has failed to show that the suit properties are not repairable under Rule 6.4.1 of BBL by the plaintiff himself and that they Zulfiqar Ahmad v. Zonal Engineer & Ors. P. no. 18 of 22 : 19 : ought to be demolished by MCD only.
31. Plaintiff has also raised the objection that as per Section 348(1) of DMC Act, the Commissioner is to decide whether any building is in a ruinous condition and that this discretion to be exercised within the four corners of the said statute. However, plaintiff has brought no material on record to show that the commissioner of the MCD has not functioned within the four corners of the concerned statute while submitting the status report to the effect that suit properties are repairable under Rule 6.4.1 of BBL.
32. Plaintiff has also averred that it is wrongly reported in the aforesaid report that one Md. Imran did not allow the officials of the defendant no.1 to inspect property bearing no. 6363, which forms a part of the suit properties. However, same is a bare averment made by the plaintiff and the same is unsubstantiated by any material on record. As such, it does not inspire confidence of the court.
33. Plaintiff has also averred in his objection to the aforesaid status report that contents of the aforesaid status report is contradictory, as at one point it states that the suit properties require extensive repair while at another point, it states that plaintiff does not require any permission of MCD to repair the same, as per Rule 6.4.1 of Unified Building Byelaws. However, from perusal of the status report, the two averments in the said status report are not found to be contradictory to each other for the reason that the report merely states that the suit properties need extensive repair Zulfiqar Ahmad v. Zonal Engineer & Ors. P. no. 19 of 22 : 20 : and that such extensive repair can be made by the plaintiff himself. Merely because a property require extensive repair, it cannot be said that it becomes incumbent upon the MCD to demolish the same. As such, no inconsistency is found in the aforesaid status report and accordingly, this objection of the plaintiff is found to be devoid of merit.
34. Plaintiff has also placed certain photographs on record alongwith his objections to substantiate the allegations that the suit properties are so imminently dangerous that defendant no.1 ought to demolish the same. However, perusal of the aforesaid photographs shows that nothing in the aforesaid photographs go on to show that they pertain to the suit properties. From perusal of the said photographs, what can at best be said is that the property seen in the said photographs appear to be in a dilapidated condition and that the same may require extensive repair. However, the said fact is not even disputed by defendant no.1. Defence of defendant no.1 is that any such extensive repair which is required to be made in the suit properties can be made by the plaintiff himself, as per Rule 6.4.1 of Unified Building Byelaws, without any permission from MCD and for the same reason, MCD is not liable to demolish the same. Nothing in the photographs filed by the plaintiff go on to demolish the aforesaid defence of defendant no.1.
35. In nutshell, what transpires from the above discussion is that firstly, plaintiff has brought no material on record to show that the suit properties are in an imminently dangerous condition. Secondly, it has not Zulfiqar Ahmad v. Zonal Engineer & Ors. P. no. 20 of 22 : 21 : been explained by the plaintiff as to why he had not complied with the requirements of the letter of the defendant no.1 dated 06.09.2005. Thirdly, plaintiff has brought no evidence to establish that the suit properties cannot be repaired by him and that it ought to be demolished by MCD.
36. In view of above discussion, court reaches the finding that the plaintiff has failed to discharge the onus of proving this issue. Accordingly, present issue is decided against the plaintiff and in favour of defendant no.1.
Issue no.6.
Whether MCD has taken action or not for demolition and sanction of building plan according to law and has not done its statutory and mandatory duty and deliberately ignoring its legal duty? OPD1
37. Onus of proving this issue is upon defendant no.1. Plaintiff has alleged that defendant no.1 is ignoring its legal duty by not demolishing the suit properties. In the discussion made under issue no. 1 and 4, court has already reached the finding that plaintiff has failed to establish that defendant no.1 is liable to demolish the suit properties. Plaintiff has further alleged that despite acknowledging the dangerous condition of the suit properties vide its letter dated 06.09.2005, defendant no.1 has not sanctioned building plan of the suit properties. However, plaintiff has brought no material on record to show that it had made any application for sanction of a building plan qua the suit properties. In absence of any such material, court finds no reason to arrive at the Zulfiqar Ahmad v. Zonal Engineer & Ors. P. no. 21 of 22 : 22 : conclusion that defendant no.1 has ignored its legal duty. This issue is accordingly decided against the plaintiff and in favour of defendant.
38. In view of discussion made above, court reaches the finding that plaintiff has failed to establish its case. Accordingly, suit of the plaintiff is dismissed. No order as to costs.
39. Decree sheet be prepared accordingly.
40. File be consigned to record room after due compliance.
Digitally signed by DHANASHREE DHANASHREE DEKA Announced in the open court DEKA Date: 2018.12.01 on 30th November, 2018. 14:19:43 +0530 (Dhanashree Deka) Civil Judge05, Central District Tis Hazari Courts,Delhi
Present judgment consists of 22 pages and each page is signed by me.
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