Delhi District Court
Maan Singh vs Ram Gopal Tiwari on 23 January, 2012
1
IN THE COURT OF SH. JAGDISH KUMAR: JSCCcumASCJcumGJ
KARKARDOOMA: DELHI
SUIT NO. 541/10
Maan Singh
S/o Sh. Kartar Singh,
R/o E77, West Vinod Nagar,
Delhi92. ....Plaintiff
Vs.
1 Ram Gopal Tiwari
R/o E77, West Vinod Nagar,
Delhi92.
2 Sh. Akram
R/o E77, West Vinod Nagar,
Delhi92.
3 Delhi Development Authority,
Through its vice Chairman,
INA Market, Vikah Sadan,
Delhi.
Suit no. 541/10 1/18
2
4 Municipal Corporation of Delhi
Through its Chairman, Town Hall
Chandni chowk, Delhi6. .....Defendants
Date of Institution : 04.10.05
Date of Arguments : 23.01.12
Date of Order : 23.01.12
JUDGMENT
1 This suit has been filed by the plaintiff against the defendants for permanent and mandatory injunction. Brief facts of the case as stated in the plaint are that the plaintiff is a neighbour of the defendants no. 1 and 2 and is having its office at E77, West Vinod Nagar, Delhi92. It is submitted that defendants no. 1 and 2, after encroaching upon the land of defendant no. 3 have started raising unauthorized construction without obtaining any sanction plan and prior permission from the defendant no. 4. It is submitted that the defendant no. 2 demolished two properties, both bearing no. E77, West Vinod Nagar, Delhi92 which has been shown in the Suit no. 541/10 2/18 3 site plan in the year 20002001 and since then the said plot/property was lying vacant with the board of DDA. But the defendants no. 1 and 2 in connivance with the officials of defendant no. 3 have started construction after removing the board of DDA from that plot.
2 It is further submitted that the defendants no. 1 and 2, since July, 2005 have started unauthorized construction on the said plot and the defendant no. 4 has, till date, not raised any objection to that effect. Moreover, the said construction is being done on the land of the DDA/government land. It is further submitted that the plaintiff has several times made complaint regarding the same to the officials of the DDA and MCD on telephone but till date no action has been taken either by any of them and the defendant no. 1 and 2 is constructing its unauthorized building. It is submitted that the defendants no. 1 and 2 have no right, title or interest in the suit property. But are attempting to grab the property of defendant Suit no. 541/10 3/18 4 no. 3 by adopting illegal methods.
3 It is further submitted that on 20.08.05 at about 4.30 p.m. when the plaintiff was coming on his bike to his office through the road wherein the suit property is situated and the construction are being carried out, the plaintiff got stuck and his bike had hit the bamboos being fixed/installed on the 6 feet road/gali to provide support to the labourers in raising constructions. After installing/fixing the bamboos on the road there is hardly any space left for the pedestrians to walk. The plaintiff called upon the defendants no. 1 and 2 and complaint him regarding the said encroachment, hearing so the defendants no. 1 and 2 started threatening the plaintiff of uneven consequences and made a bold declaration that he is a very influential person and have good contacts with the police and the politicians of the locality. It is submitted that then the plaintiff approached to the concern police station, but instead of taking any action against defendants no. 1 Suit no. 541/10 4/18 5 and 2, the police officials started threatening the plaintiff to implicate him in false case.
4 It is further submitted that the defendants no. 1 and 2 has completely blocked the road for his construction purpose as all the concrete and sand are lying just out side the suit property and bamboos are also fixed on the road itself. It is submitted that the plaintiff on 24.09.05 again requested the defendants no. 1 and 2 to remove the construction material from the road. But instead of co operating with the plaintiff the defendants no. 1 and 2 without any reason started abusing the plaintiff and threatened to show dire consequences. It is further submitted that the defendants no. 1 and 2 is a very influential person and having good relations with the police officials of the concern police station. It is submitted that the defendants no. 1 and 2 has been raising unauthorized construction without any sanction plan and the defendant no. 4 deliberately and intentionally is not taking any action against the defendants no. 1 Suit no. 541/10 5/18 6 and 2. It is submitted that the plaintiff made complaints to SHO PS Mandawali, MCD, DDA and to LG. It is submitted that the act of the defendants are highly illegal, arbitrary and against the principal of natural justice. Hence the present suit for permanent and mandatory injunction.
5 After service defendants appeared and filed their WS. In WS defendant no. 1 and 2 have denied almost all the allegations leveled against them in the plaint by the plaintiff. However it is submitted that the plaintiff has filed the present suit without any sufficient reasons and the plaintiff has not approached the court with clean hands. It is submitted that the plaintiff is not owner of the suit property. It is submitted that the plaintiff has not properly verified the plaint. It is submitted that the suit is filed to harass and black mail the defendants. It is submitted that the defendants no. 1 and 2 has not encroaching upon the land of defendant no. 3 and not raised any unauthorized construction. It is submitted that the Suit no. 541/10 6/18 7 allegations made by the plaintiff against the defendants are wrong and based on the fabricated facts. It is further submitted that the plaintiff is habitual for blackmailing the persons with the intention to extort handsome amount from the peoples. It is submitted that the plaintiff had already filed a civil case against one Deepak Jain in respect of the property bearing no. E77, Multi Storey building, West Vinod Nagar, Delhi. It is further submitted that the plaintiff has withdrawn the said case in the month of AprilMay, 2004 after receiving a plot of 70 sq. yards from the said Deepak Jain as extortion. It is further submitted that the plaintiff also filed a civil case against his uncle Ch. Kadam Singh. It is submitted that in the said case the plaintiff had also received Rs.3 lacs from his uncle as a extortion amount. On these grounds defendants no.1 and 2 sought dismissal of the suit.
6 In WS defendant no. 3/DDA submitted that plaintiff is neither the owner nor has any right, title and interest over the suit Suit no. 541/10 7/18 8 land. It is further stated that both the plaintiff and defendants are encroachers on the govt. land as the West Vinod Nagar is an unauthorized colony. The suit property falls in khasra no. 923, Village Mandawali, Fazalpur which is an acquired land of DDA vide award no.49C/7071 and the possession was taken over by the DDA U/Sec.22(1) vide notification no. F.8(21) 79/L&B dated 23.07.86. The disputed land is a vacant land on which DDA raised their boundary wall and has placed DDA Board on the same. Plaintiff and defendants no. 1 and 2 have encroached upon the adjoining land of the suit property. It is further stated that suit is not maintainable for want of statutory notice U/Sec.53B of DD Act. It is stated that defendant no. 2 has raised construction in 2005 after dismantling the old structure and accordingly the property was booked and demolition orders were passed on 20.12.2005. It is further stated that concerned JE has inspected the site and it was found that defendant no. 2 has removed the earlier construction for raising the fresh construction but the construction was not on the Suit no. 541/10 8/18 9 vacant DDA land as alleged by plaintiff. Rest of the allegation are denied. On these grounds DDA sought dismissal of the suit. 7 Defendant no. 4 MCD has also filed WS in which MCD has submitted that the suit is not maintainable for want of statutory notice U/Sec.477 & 478 of DMC Act. It is further stated that the building activities of the area in which the property falls, is still under the charge of DDA. All the activities relating to the sanctioned building plan, unauthorized construction etc. are being dealt by DDA and MCD has nothing to do in the present suit. On the basis of these grounds defendant no. 3 sought dismissal of the present suit.
8 Replication to the WS of defendants filed by the plaintiff in which plaintiff has denied the averments of defendants as stated in the WS and reiterated and reaffirmed the contents of his plaint. Suit no. 541/10 9/18 10 9 After completion of pleadings following issues were framed on 24.01.07:
1. Whether the plaintiff has no locus standie to file the present suit? OPD.
2. Whether the plaintiff has not come to the court with clean hands and suppressed the material facts? OPD.
3. Whether the plaintiff is entitled for a decree of permanent injunction as prayed for? OPP.
4. Whether the plaintiff is entitled for a decree of mandatory injunction as prayed for? OPP.
5. Whether the suit is not maintainable for want of statutory notice U/Sec.53(b) of DDA Act? OPD.
6. Relief.
10 In PE the plaintiff has examined herself as PW1. In DE defendants no. 1 and 2 examined defendant no. 1 as DW1. Defendant no. 3 and 4 have not led any evidence. Suit no. 541/10 10/18 11 11 I have heard the Ld. Counsel for parties and give my thoughtful consideration to the submissions made by them. I also perused the record. My issue wise findings is as under: ISSUE NO. 1 Whether the plaintiff has no locus standie to file the present suit? OPD.
The plaintiff has filed the present suit for injunction. The law of injunction is very much clear that relief of injunction is an equitable relief. The person claiming equitable relief must come to the Court with clean hands and has to show that any obligation is existing in his favour and against the defendant. The Hon. High Court of Delhi in case titled as Newtech State & Industries Pvt. Ltd. Vs. Inder Singh Oberoi 2004 (72) DRJ 420 that : "The plaintiff may pray for perpetual or mandatory injunction to prevent the breach of an obligation existing in favour of the plaintiff, Suit no. 541/10 11/18 12 however, there was no application contractual or otherwise on the part of the plaintiffs towards the defendants which required the defendant to construct on his own land in agreements with the perpetual rules and regulations."
In the present suit it has come on record through the pleadings as well as evidence of the parties that the plaintiff as well as defendant no. 1 are sitting on the govt. land. Both are encroacher upon the govt. land. The plaintiff is relying upon a GPA Ex.PW1/2 but same is having no meaning as plaintiff himself admitted in his crossexamination that the property bearing E77, West Vinod Nagar exists on a govt. land. So, I am of the considered view that plaintiff is having no locus standie to file the present suit. Issue no. 1 is disposed of accordingly. ISSUE NO. 2
Whether the plaintiff has not come to the Court with clean hands? OPD.
Suit no. 541/10 12/18 13 The plaintiff himself admitted that he is encroacher upon the govt. land, while he was under crossexamination. The plaintiff has not come to the Court with clean hands as he is encroacher upon the govt land. The equity does not lies in his favour. The defendant has unable to brought on record whether the plaintiff has concealed any material from the Court. The issue is decided according by holding that the plaintiff has not approached the Court with clean hands.
ISSUE NO. 3
Whether the plaintiff is entitled for permanent injunction as prayed for? OPP.
The Ld. Counsel appearing on behalf of plaintiff, during the course of arguments, has argued that this issue has become infructuous as defendants no. 1 and 2 have constructed at the suit property. The Ld. Counsel for plaintiff has not pressed this issue. Suit no. 541/10 13/18 14 The issue is disposed of accordingly by holding that same has become infructuous.
ISSUE NO. 4
Whether the plaintiff is entitled to the decree of mandatory injunction as claimed for? OPP.
Vide this issue plaintiff is seeking demolition of suit property constructed by the defendants no. 1 and 2. The defendant no. 1 as well as defendant no. 2 have not specifically denied that they have not newly constructed over the suit property. The defendant no. 3 also stated in its WS that the defendant no. 2 has done fresh construction after removing the earlier construction. The defendant no. 1 has admitted in his crossexamination that the property shown in document Ex.PW1/1 is his property. The same is the suit property. From the perusal of document Ex.PW1/1 it reveals that the construction over the suit property has been Suit no. 541/10 14/18 15 constructed newly. The DW1 further admitted that he has not got any building sanctioned plan for construction over the suit property. So, it has been come on record that the construction done by the defendant no. 1 and 2 at the property bearing no. E77, West Vinod Nagar is newly construction. It has come on record that same has been constructed by the defendants no. 1 and 2 by removing the old construction. The DDA defendant no. 3 has also admitted in its pleading that defendants no. 1 and 2 had not constructed any new construction over the vacant land of DDA. With respect to factum of site plan the plaintiff is unable to prove the same as he in his cross examination is unable to prove the site plan and deposed contrary, on the preparation and drawing of the document i.e. site plan. So, it has been proved on record from the evidence adduced on record that defendants no. 1 and 2 constructed over the suit property shown in Ex.PW1/1, which was in their possession after demolishing the old one. They have not encroached upon the vacant land fancied by the DDA.
Suit no. 541/10 15/18 16
Now the question arises whether the plaintiff is entitled for mandatory injunction as claimed by him. As I have hold above the plaintiff has not come to the Court with clean hands. He is also encroacher upon the govt. land, so he is not entitled for any equitable relief of injunction as prayed for. The Hon. Supreme Court in case titled as Baksi Ram Vs. DDA, 1995 DRJ (32) has observed "it is established beyond any reasonable doubt that the petitioner being a trespasser and encroacher of public land is not entitled to relief from this Court. The process of Court would not be leand a helping hand to the trespasser and the encroachers of public land."
The govt./DDA is always at liberty, to remove the encroachment over their land as per their policy. The govt./DDA is always at liberty to remove the construction done by the defendants no. 1 and 2 at the suit land as shown in document Ex.PW1/1. The issues is disposed of accordingly by holding that plaintiff is not Suit no. 541/10 16/18 17 entitled for any equitable relief.
ISSUE NO. 5
Whether the suit is not maintainable for want of statutory notice U/Sec.53(b) of DDA Act? OPD. The onus to prove this issue is on the defendant. The plaintiff has filed the present suit for injunction against the defendants. As per provisions of Sec.53B(3) of the DD Act, a suit for injunction can be filed against DDA without giving notice in case of suits filed for injunctions. Issue is disposed of accordingly. Relief So, in view of the abovesaid discussions I am of the view that the plaintiff is not entitled for the relief as claimed. However, govt./DDA is at liberty to take action against illegal construction done by the defendants no. 1 and 2 at the suit property shown in Ex.PW1/1, as per their policy. Accordingly the Suit no. 541/10 17/18 18 suit of the plaintiff is dismissed.
(Announced in open Court (JAGDISH KUMAR)
today i.e 23.01.12) JSCC/ASCJ/GJ(East)
KKD COURT
Suit no. 541/10 18/18
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Suit No. 541/10
23.01.12
Present: Plaintiff in person.
Counsel for defendants.
Arguments heard from counsel for defendants. Pass over seeks by plaintiff for arguments for 2.00 p.m. (Jagdish Kumar) JSCC/ASCJ/GJ(East) KKD COURTS/23.01.12 At 2.15 p.m. Present: Plaintiff with counsel.
None for defendants.
Arguments heard from counsel for plaintiff. Put up at 4.00 p.m. for order.
(Jagdish Kumar) JSCC/ASCJ/GJ(East) KKD COURTS/23.01.12 Suit no. 541/10 19/18 20 At 4.00 p.m. Present: Plaintiff in person.
Son of defendants.
None for defendants no. 3 and 4.
Vide separate judgment the suit of the plaintiff is dismissed. However, govt./DDA is at liberty to take action against illegal construction done by the defendants no. 1 and 2 as per their policy.
File be consigned to Record Room.
(Jagdish Kumar) JSCC/ASCJ/GJ(East) KKD COURTS/23.01.12 Suit no. 541/10 20/18