Delhi District Court
Smt. Renu Jain vs Sh. Vinod Srivastava on 23 March, 2015
IN THE COURT OF SH. SHAILENDER MALIK
SCJCUMRC (N/W) : ROHINI COURTS : DELHI
RCA No. 3/14
Vinod Kumar Jain
S/o Late Sh. Hari Chand Jain
R/o 455, Nimri Colony,
Near Gurudwara, Delhi52
Sh. Pramod Kumar Jain
S/o Late Sh. Hari Chand Jain
R/o 182, Nimri Colony,
Delhi52
Smt. Renu Jain
W/o Sh. Vinod Kumar Jain
R/o 455, Nimri Colony,
Near Gurudwara, Delhi52 ..........Appellants
Vs
Sh. Vinod Srivastava
S/o Late Sh. Sheo Parsah Lal
R/o Flat no. 181, Nimri Colony,
Ashok Vihar, Delhi52
North Delhi Municipal Corporation
17th floor, Civic Centre,
Minto Road, Delhi
Through its Commissioner
Page No. 1/11
Smt. Nutan Jain
W/o Sh. Sukhmal Jain
D/o Late Sh. Hari Chand Jain
R/o H No. 25B, Laxmi Nagar,
Delhi92
Smt. Rekha Jain
W/o Sh. Dinesh Jain
D/o late Sh. Hari Chand Jain
R/o H No. 415, Village and P.O. Tuklakabad
Delhi44 ........Respondents
Date of institution: ....... 16.04.2014
Date of reserving order: ....... 24.02.2015
Date of announcing order: ....... 23.03.2015
JUDGMENT
1. This is an appeal against judgment dated 25.03.2014 passed by Ld. Civil Judge in civil suit no.273/14, filed for relief of permanent injunction whereby suit of the respondent no.1 herein/plaintiff was decreed for the relief as prayed.
2. Factual background of the matter leading to filling the present appeal precisely stated that respondent no.1 herein Vinod Srivastava had filed the suit against defendant no.1 predecessor of interests of appellant herein, who had expired during the course of trial as well as against MCD (defendant no.
2) with the facts that plaintiff/respondent no.1 herein is in occupation of ground floor flat No.181, Nimri Colony, Ashok Vihar, Delhi, defendant no.1 Page No. 2/11 (Hari Chand Jain, since deceased) is allottees in occupation of first floor flat no. 182, Nimri Colony, Ashok Vihar, Delhi. It is stated that defendant no.5 (MCD) is the lessor, there are only two floors in the building structure, ground floor is with the plaintiff and first floor is with the defendant no.1. As per para II (vii) of lease deed executed in favor of plaintiff by defendant no.5 / MCD, it was provided that occupant / lessee will not erect or reerect any flat or will not make any alternation or addition either externally or internally in the flats without previous permission /sanction of MCD. It is alleged in the plaint that defendant no.1 has unauthorizedly build up the entire second floor and is in the process of raising unauthorized construction on the 3rd floor, in connivance with officials of MCD/ defendant no.5, which is not taking any action on the complaint of plaintiff in respect of such unauthorized construction. It is alleged that defendants have installed marble, name plat on the wall of plaintiff giving such an impression as if the ground floor of the said building structure is owned by them. It is further alleged that defendant no.1 to 4 interfered with the fencing of ground floor and had tress passed into the bounds of plaintiff at ground floor and thereby caused nuisance in the house of plaintiff at ground floor. It is further alleged that defendants have also misused the drain pipe meant for draining rain water by connecting the same with an unauthorized bathroom constructed at second floor which would render courtyard of the plaintiff at ground floor dirty and filthy. It is also alleged that defendant no.1 to 4 have denied the plaintiff to have access to the terrace of first floor in which plaintiff has equitable right with defendants, plaintiff has not allowed to installed T.V. antenna, or had water tank etc. it is also alleged that defendant kept on throwing the waste on the courtyard of the plaintiff's flat at ground floor.
3. It is further alleged that defendant no.1 to 4 have also inducted illegally tenant in unauthorized construction raised on the first floor in their occupation in total disregard to the fact that foundation of the whole Page No. 3/11 structure of ground floor and first floor is weak, as such while alleging various incidents of unauthorized construction and misuse, suit was filed before trial court with the prayer for decree of injunction to restrain defendant no.1 to 4, from raising any structure of 3rd floor on the first floor and also to restrain from indulging in all the unauthorized/ illegally activities, details of which have been given in para 12 of the plaint. Plaintiff has also prayed for giving the directions to remove the unauthorized construction at second floor.
4. Defendant no.1 to 4/appellant have filed their joint WS, pleading therein that suit is not maintainable as plaintiff has no right or title in respect of flat no.182, first floor, as plaintiff is the allottee of flat no.181, Nimri Colony, Ashok Vihar, Delhi, whereas defendant no.1 (Hari Chand Jain) is the allottee / owner of flat no.182, which is at first floor. It is stated that suit of the plaintiff is based on false facts and is not sustainable on account of misjoinder of parties, filed only with the intention of harassing the defendant no.1 to 4 being the counter blast to the suit of defendant no.1 (being suit no.275/14), which was decided by Trial Court simultaneously with the present suit no.273/14. It is further pleaded that in fact, defendants have lodged the complaint against plaintiff for his unauthorized construction on the municipal land of the ground floor meant for common use of plaintiff as well as of defendants. It is when plaintiff started collecting building material for raising boundary wall around the open municipal land on 29.05.93 and defendant no.1 asked the plaintiff not to raise any unauthorized construction, plaintiff did not listen and rather threatened to raise the high boundary wall therefore, report was lodged in the PS and suit was filed. It is thereafter, the present suit has been filed. It is alleged that plaintiff is not entitled to any equitable relief of injunction as plaintiff himself has raised illegally construction on municipal land by fencing iron gate with concrete around the cemented and also fixed barbed wire around the open municipal land Page No. 4/11 unauthorizedly.
5. Defendant no.5/MCD filed the WS taking the usual objection that suit is hit by provisions of Section 477478 of DMC Act for want of prior notice. It is pleaded that on 22.12.93 it was reported to MCD that unauthorized construction is going on in flat no.182 and immediately, unauthorized construction was demolished on the same day. It is pleaded that unauthorized construction is still exist on the second floor which is old one and same is also actionable as per the provisions of DMC Act.
6. Plaintiff has filed the replication and on the basis of pleadings, Ld Trial court framed the following issues.
1. Whether the suit of the plaintiff is not maintainable in the present form?OPD.
2. Whether the suit of the plaintiff is bad for misjoinder of parties or cause of action?OPP.
3. Whether the plaintiff is entitled to decree of permanent injunction as prayed for?OPP.
4. Relief.
7. During the course of trial, the suit no.273/14 and connected suit no.275/14, filed at the instance of appellants were simultaneously tried and decided and evidence was recorded in both the cases jointly in suit no.275/14 and this fact has been noted by Trial Court in para 7 of the impugned judgment.
8. During the course of trial plaintiff in suit no.275/14 was examined as DW1 whereas defendant no.1 in the present suit was examined as PW1 in suit no.275/14 beside two other witnesses.
Page No. 5/119. Trial Court upon considering all the evidence as come on record and the documents proved, decided the issue no.1 and 2 in favor of plaintiff by holding that suit is maintainable and is also not bad for misjoinder of parties. Issue no.3 was also decided in favor of plaintiff concluding that it has come on record by status report of MCD that there exist a 3rd floor which has been constructed on second floor of the building, without the permission of MCD and MCD has also pleaded in its WS regarding raising of unauthorized construction. Ld. Trial Court also held in para 19 of the judgment that status report of MCD says that CWP No.3587/94 though is pending before Hon'ble High Court regarding regularization of unauthorized construction / encroachment carried out by various allottees of Nimri Colony, Delhi . But the construction raised by defendant no.1 over the flat no.182, Nimri Colony, is against the directions of Hon'ble High Court given in S.L. Gupta & Ors vs MCD reported 2006 (v) AD, (Delhi) 591 and thus concluded that suit of the plaintiff is liable to be decreed and therefore, restrained the defendant no.1 to 4 from raising any unauthorized construction and also gave directions to MCD to demolish unauthorized construction raised on second floor of flat no.182, Nimri Colony, Delhi, in the shape of 3rd floor to enable the plaintiff to have access on the terrace for the purpose of repair / cleaning the water tank and also for fixing the antenna at the convenient hour of the day. However, other reliefs as mentioned in para 12 of the plaint were not granted by trial court.
10. It is above said findings given by Trial Court in the impugned judgment has been challenged in the present appeal on the ground that Ld. Trial court has erred in giving directions to MCD to demolish the construction on second and third floor of property no.182, Nimri Colony, Ashok Vihar, because even if there is any unauthorized construction raised, DMC Act applies and therefore, before taking an action of demolition of an Page No. 6/11 unauthorized construction, show cause notice as per Section 343 of DMC Act is required to be served to the owner / occupier and upon being service of such notie and considering the reply given by the owner /occupier, demolition notice in terms of Section 344 of DMC Act is also required to be served. It is stated that as per the status report dated 10.01.2011 filed by MCD, unauthorized construction existing on the second floor was booked vide file no.349/B/UC/RZ1/2007 dated 05.10.2007, whereas, no show cause notice was ever served to late Hari Chand Jain or to his LR's. It is stated that ld. Trial court has failed to appreciate the evidence as come on record to show that it was plaintiff/ respondent no.1 herein who has carried out unauthorized construction and encroached the municipal land and thereby caused blockade to drainage system of rain water / sewer of flat no.182. It is stated that plaintiff being himself guilty of raising unauthorized construction on the open municipal land on the front and back side of the ground floor no.181, was not entitled for any relief of injunction. It is stated that during the pendency of the suit before Trial Court, CWP No.3597/94 filed by upper flat Resident Association against MCD was decided by Hon'ble High Court on 19.1.2012. It would be clear from order of Hon'ble High Court dated 19.01.2012 that Hon'ble High Court accepted the resolution no.386 dated 25.09.2000 of Standing Committee of MCD which recommended the lay out plan and permission for regularization of unauthorized construction in those flats of Nimri Colony, Delhi. It is stated that on the basis of that order dated 18.01.2001, MCD allowed to different flat owners to deposit extra amount as per the resolution no.386 dated 25.09.2000 and MCD made demand of sum of Rs.2,30,663/ from late Hari Chand Jain (predecessor of interest in the appellants) for regularization of unauthorized construction made by Late Hari Chand Jain on the second floor of flat no.182, Nimri Colony, Delhi and late Hari Chand Jain deposited sum of Rs.2,30,664/ on 21.01.2008 with MCD.
Page No. 7/1111. During course of trial, trial court called upon the status report from MCD regarding the status of suit property and the construction, MCD gave the status report wherein it was stated that late Hari Chand Jain has already deposited the cost in respect of flat no.182, Nimri Colony. It is stated that trial court has failed to accept the status report filed on behalf of the MCD and has also failed to appreciate the evidence as come on the record and has misread the judgment of Hon'ble High Court in S.L. Gupta's case (Supra).
12. I have heard Ld. Counsel for the appellant as well as respondent no.1 and have gone through the record carefully. I have also gone through the written arguments.
13. Since, most of the emphasis of ld. Counsel for appellants was that defendant no. 1 (being predecessor of interest of appellants herein) had deposited the amount as per demand letter of MCD for regularization of unauthorized construction raised in that area of Nimri Colony as resolution no. 386 of MCD and accepted by Hon'ble High Court while disposing off CWP no. 3587/94 on 19.01.2012, so according to ld. Counsel for appellant, unauthorized construction was regularized and this fact according to counsel was not considered by ld. Trial Court.
14. It be noted that in the area of Nimri Colony, MCD had constructed 640 flats and flat no. 1 to 324 were allotted to MCD employees (including parties present proceedings) and rest of the flats were sold to general public. Subsequently, MCD employees whom flats were allotted on lease hold basis, were conferred ownership rights by MCD in 1984. Occupant raised unauthorized construction and encroached municipal land, so CWP no. 387 was filed by "Upper Association, Nimri Colony" and other and in that proceedings as per order of High Court, MCD carried out removal of Page No. 8/11 encroachment/unauthorized construction in respect of some of the flats, but not completely. Therefore, contempt petition was filed in those proceedings and as per directions of High Court, MCD constituted a committee of senior officers of MCD to give report after physical survey of above said colony and to analyze the mode of regularization (if any) after considering byelaws and layout plans. Accordingly, said committee of MCD passed a resolution no. 386 on 25.09.2000, wherein it was inter alia recommended that layout plan of colony should be revised and each flat be permitted coverage of 100 sq. meters on plot area of 135 sq. meter by envisaging extension depth of plot by 8 ft. in front and 22 ft. in rear of existing flat. Ground and first floor/upper floor owner, shall have same covered area permissible i.e. 100 sq. meter. Any construction beyond permissible area shall be demolished. Flat owners shall pay augmentation charges etc.
15. Hon'ble High Court vide order dated 18.01.2001 in above mentioned CWP no. 3587/94, permitted MCD to ask the flat owners to deposit charges as per above said resolution no. 386. Therefore, defendant no. 1 Late Hari Chand Jain (predecessor of interests of appellants) received letter dated 28.03.2001 for depositing of land premium, compounding fee as well as augmentation charges, total of which was Rs. 2,30,663/ which was deposited only in year 2008 (after about 7 year of receiving above mentioned letter dated 28.03.2001).
16. It is on the basis of this receipt of depositing of Rs. 2,30,664/ dated 21.01.2008 ld. Counsel for appellant submits that any unauthorized construction raised in their flat no. 182, Nimri Colony (first floor) was regularized. But first of all it be noted that there is no evidence led regarding payment of such amount during the trial. Now, even if we accept it, being not disputed by MCD and mentioned about in its status report, filed before Trial Court, still I find mere depositing of such amount does not establish that Page No. 9/11 whole of unauthorized construction which was raised in flat no. 182, was regularized. In the same status report, of MCD in para 4 it was mentioned that second floor of flat no. 182 was unauthorizedly constructed and therefore was booked in year 2007. So, when layout plan of that colony is such, where there was only ground and first floor flat only is permissible in that flat no. 182 of Nimri Colony, there is third floor, as per status report of MCD, which as per resolution no. 386 of MCD can never be regularized.
17. Now, if we examine the evidence as come on the record, since evidence of suit no. 273/14 and suit no. 275/14 was recorded jointly on record of suit no. 275/14, it has come in the evidence of Sh. Hari Chand Jain, when he appeared as PW1, when he in his cross examination admits that he has raised construction unauthorizedly of second floor in his flat no. 182. This admission coupled with status report and WS of MCD makes it clear that it is defendant no. 1 who had raised unauthorized construction. Trial Court in para 17 and 19 of impugned judgment has correctly noted that on flat no. 182, Nimri Colony, another second floor was unauthorizedly constructed which has already been booked in year 2007. So mere fact that on behalf of appellants any amount was deposited, that too after 7 years of letter and also after when construction was found to be unauthorized and has already been booked in year 2007. Appellants cannot take benefit of deposit of said amount of Rs. 2,30,664/ in year 2008.
18. Rather I find MCD officials for reasons best known to them, did not take appropriate steps despite booking such unauthorized rather illegal construction of another floor on first floor flat in year 2007, which was not at all permissible. It is already 2015. Thus, considering the evidence and facts of present case, I find no merits in the appeal, hence same is dismissed.
19. In terms of the earlier directions of Trial Court, MCD is directed to Page No. 10/11 demolish the construction of second and third floor above the flat no. 182, Nimri Colony, Ashok Vihar, as per site plan Mark A. It is also being made clear that such construction is not unauthorized rather illegal, therefore, cannot be exempted even under Special Provisions Act of NCT of Delhi of 2014. MCD is directed to comply with the directions within 3 months and file report of compliance. Copy of this judgment be sent to Commissioner, North MCD for compliance.
20. Appeal accordingly, stands dismissed. TCR be sent back with the copy of this judgment. File be consigned to record room.
Announced in open court on 23th March 2015 SHAILENDER MALIK (SCJRC, ROHINI COURTS, DELHI) Page No. 11/11