Delhi District Court
Jai Bhagwan vs Jai Singh on 10 November, 2021
IN THE COURT OF MR. DHARMESH SHARMA
PRINCIPAL DISTRICT & SESSIONS JUDGE : WEST DISTRICT
TIS HAZARI COURTS : DELHI
RCA No. 23/2019
CNR No. DLWT01-001337-2019
In re:
1. Jai Bhagwan
S/o Shri Deepu
R/o 196, Village Nilothi,
Nangloi, Delhi
2. Girraj
S/o Sh. Deepu
R/o 200, Village Nilothi,
Nangloi, Delhi . . . . . . Appellants
Versus
1. Jai Singh
S/o Sh. Prakash
R/o 202-203, Village Nilothi,
Nangloi, Delhi
2. The Commissioner
North Delhi Municipal Corporation
Civic Centre, Minto Road,
New Delhi-110002 . . . . . . . . Respondents
Date of Institution of appeal : 19.02.2019
Date of hearing arguments : 01.11.2021
Date of judgment : 10.11.2021
Appearances:
Sh. Vinay Kumar Arora, Advocate for the appellants.
Sh. K.S. Chauha, Advocate for respondent No.2
Sh. R.K. Kashyap, Advocate for respondent No.2/North-DMC.
RCA Nos. 23/2019 Jai Bhagwan & Anr. v. Jai Singh & Anr. Page 1 of 10
JUDGMENT
1. This judgment shall decide the present Civil Appeal filed by the appellants in terms of Section 96 read with Order XLI Rule 1 of the Code of Civil Procedure, 1908 (in short referred as the 'CPC') against Judgment dated 2301.2019, passed by the Court of Sh. Rajinder Kumar, learned JSCC-cum-ASCJ-cum-GJ, (West), Tis Hazari Courts, Delhi in Suit bearing No. 11848/2016 titled as 'Jai Singh v. Jai Bhagwan & Ors., whereby the suit of the plaintiff/respondent no. 1 was decreed.' FACTS:
2. Briefly stated, the case of the plaintiff is that he is residing at premises No. 202-203, Village Nilothi, Nangloi, Delhi-110041 for the last 14 years and defendant Nos. 1 and 2, who are his real brothers, are residing and in possession of property bearing No. 196 & 200 respectively, Village Nilothi, Nangloi, Delhi-110041. The grievance of the plaintiff was that sometimes in the last week of November-2015 defendant No.2 demolished a portion of his property No. 200 and started raising illegal/unauthorized construction and in the process encroaching upon public land by raising chajja without a sanctioned plan. It was further the grievance of the plaintiff that defendant No.1 also demolished a portion of his property No. 196 adjacent to the property of the plaintiff, and thereby damaged his property so much so that cracks developed in the wall of the house of the plaintiff.
3. The plaintiff sought a decree for permanent injunction in his favour thereby restraining the defendant Nos. 1 and 2, their agents, RCA Nos. 23/2019 Jai Bhagwan & Anr. v. Jai Singh & Anr. Page 2 of 10 labourers, attorney, assignees etc. from raising any illegal or unauthorized construction and sought further directions against the defendant No.3, North-DMC to take action for demolition of unauthorized construction carried out in the suit property No.196 & 200, Village Nilothi, Nangloi, Delhi-110041.
4. The defendant Nos. 1 and 2 filed joint written statement in which inter alia they raised preliminary objections to the effect that suit was without any cause of action and the plaintiff had no locus standi to file the suit as he was in no way concerned with the property at all and residing in the house behind the house of answering defendants and the correctness of the site plan was also challenged; and it was also stated that suit is filed by the plaintiff at the behest of his father, who filed a false suit for permanent and mandatory injunction against the real brother Bhim Singh bearing No. 65/2015 also pending in the same Court; and it was stated that the plaintiff and his father installed a gate at point 'B' in the site plan so as to encroach upon common gali which is a Government land.
5. On merits, the allegations of the plaintiff were denied and it was stated that houses of the answering defendants were old construction and no new construction, addition, alterations had been carried out in the same; and that house of defendant No.1 was an old one lying deserted since long and is residing in another premises bearing No. A-55, Shiv Ram Park, Nangloi and it was denied that any new construction or unauthorized construction or encroachment by way RCA Nos. 23/2019 Jai Bhagwan & Anr. v. Jai Singh & Anr. Page 3 of 10 of construction of chajja has been made by the defendant No.2 and it was stated that the suit property is located in old abadi of Lal Dora area, for which no sanction plan was required.
6. Defendant No.3, Sub-Divisional Magistrate, Punjabi Bagh was also impleaded but deleted from the array of parties vide order dated 24.02.2016. The North MCD also contested the suit and brought out that unauthorised constructions had been raised in the suit property without any sanction plan. However, it raised an objection that no notice under Section 477 & 478 of the Delhi Municipal Corporation Act, 1957 (for short referred as the 'DMC' Act) was given prior to the filing of the suit.
7. On the basis of pleadings of the parties, following issues were framed on 09.08.2016:
"1. Whether the suit is barred by provision of Section 477 and 487 of the DMC Act? OPD1,2 and 4.
2. Whether the plaintiff has no locus standi to file the present suit? OPD 1 & 2.
3. Whether the plaintiff has no cause of action against the defendants? OPD 1 & 2.
4. Whether the plaintiff is entitled for a decree of permanent injunction, as prayed for? OPP
5. Whether the plaintiff is entitled for a decree of mandatory injunction, as prayed for? OPP
6. Relief."
8. Ld. Trial Court vide the impugned judgment dated 23.01.2019 in deciding the issue No.1 held that since the plaintiff had RCA Nos. 23/2019 Jai Bhagwan & Anr. v. Jai Singh & Anr. Page 4 of 10 sough urgent relief, provisions of Section 488(3) of the DMC Act was not applicable. In so far as issue Nos. 2 and 3 are concerned, it was held that defendant Nos. 1 and 2 were occupying the suit property in the neighbourhood and DW-1 in cross-examination conducted on 18.10.2018 conceded that he got construction demolished in the year 2015, which came up in his area of 66.50 Sq. Yards; and that it was also conceded that his brother had raised new construction in his share in the year 2015 itself. It was found that no sanction plan was obtained from the North-DMC and premises were also booked for unauthorized construction. Hence, the issues were decided in favour of the plaintiff and against the defendants.
9. So far as the core issues Nos. 4 and 5 are concerned, the testimony of PW-1 the plaintiff was believed, who reiterated that defendant No.2 had raised unauthorized construction on their plots / house and the learned Court referred to the cross-examination of DW-1 on 09.01.2019, wherein it was conceded that no sanction was obtained for raising construction. Incidentally, the written statement filed by defendant No.4, North-DMC was referred wherein it was stated that suit property No. 196 & 200 were inspected on 24.02.2016 and it was found that boundary wall and partition wall were raised upto six feet height but the construction was abandoned in plot No. 196 whereas on plot No. 200 construction was found completed from ground floor to second floor, which was booked by the North-DMC vide File dated 24.02.2016. Thus, the said issues were decided in favour of the plaintiff and against the defendants, and accordingly a decree of permanent RCA Nos. 23/2019 Jai Bhagwan & Anr. v. Jai Singh & Anr. Page 5 of 10 injunction was passed thereby, restraining defendant Nos. 1 and 2 and their agents, labourers, assignees etc. permanently from raising any illegal or unauthorized construction in suit property No. 196 & 200 situated in Village Nilothi, Delhi-110041 as shown in red in the site plan Ex.PW-1/3. Likewise a decree of mandatory injunction was passed directing the defendant Nos. 3 and 4 to restrain the defendant Nos. 1 and 2 from raising any illegal construction in the suit property and also directed to demolish the illegal and unauthorized construction already carried out by him in the suit property.
IMPUGNED JUDGMENT
10. The impugned judgment is assailed in the present appeal by the appellants inter alia on the grounds that the learned trial Court failed to appreciate that the suit property was existing in old abadi / lal dora area of village Nilothi, and therefore, no sanction plan was required to carry out any construction as per Notification/Circular issued by Delhi Administration (Municipal Corporation of Delhi) dated 23.05.1963' and that the learned trial Court failed to take cognizance of an admitted fact that the suit property was falling in old abadi/lal dora area in terms of Section 57 of the Indian Evidence Act and thereby failed to consider that village Nilothi was exempted from application of Municipal Laws by virtue of Section 507 (3) (b)(i) of the DMC Act. It was submitted that the learned trial Court failed to appreciate that the ratio decidendi in the case of Syed Muzaffar Ali & Ors. v. Municipal Corporation of Delhi, 1995 (Supp) (4) SCC 426, wherein it was held RCA Nos. 23/2019 Jai Bhagwan & Anr. v. Jai Singh & Anr. Page 6 of 10 that demolition of building is last resort in as much as mere departure from the authorized plan can never justify demolition of the property.
DECISION
11. I have given my thoughtful consideration to the rival submissions made at the Bar by the learned Counsel for the parties. I have also perused the trial Court record.
12. At the outset, the impugned judgment dated 23.01.2019 cannot be sustained in law. The reasons are not far to seek and if the properties in question are falling in the old abadi Lal Dora area, the provisions of DMC Act are inapplicable. In arriving at such decision, it would be expedient to refer to provisions of Section 507 of the DMC Act, which provides as under:-
"507. Special provisions as to rural areas.-- Notwithstanding anything contained in the foregoing provisions of this Act-
(a) the Corporation with the previous approval of the *** Government, may, by notification in the Official Gazette, declare that any portion of the rural areas shall cease to be included therein and upon the issue of such notification that portion shall beincluded in and form part of the urban areas;
(b) the Corporation with the previous approval of the *** Government may, by notification in the Official Gazette,-
(i) exempt the rural areas or any portion thereof from such of the provisions of this Act as it deems fit,
(ii) levy taxes, rates, fees and other charges in the rural areas or any portion thereof at rates lower than those at which such taxes, rates, fees and other charges are levied in the urban areas or exempt such areas or portion from any such tax, rate, fee or other charge;RCA Nos. 23/2019 Jai Bhagwan & Anr. v. Jai Singh & Anr. Page 7 of 10
(c) the Corporation shall pay a Gaon Sabha- (i) an amount equal to the proceeds of the tax on profession, trades, callings and employments, as and when that tax is levied in the Gaon Sabha area, and
(ii) an amount equal to such portion of the proceeds of the property taxes on lands and buildings in that area as may from time to time be determined by the Corporation, after deducting the cost of collection from such proceeds.
Explanation.--In this section the expressions"Gaon Sabha"
and "Gaon Sabha area" have the same meanings as in the Delhi Panchayat Raj Act, 1954 (Delhi Act 3 of 1955)."
13. A bare perusal of the aforesaid provision would show that by virtue of Section 507 (b) (i) of the DMC Act certain rural areas are exempted from applicability of the provisions of the DMC Act and judicial cognizance of the Notification dated 24th August, 1963 can be taken, which came into effect on 19.11.1959 and provides as under:-
S. No. Sections Brief Extent
Description
1. 332, 333, 334, Building Only such portions of the Rural
335, 336, 342 Regulations areas as lie within the village
and 347 abadies as defined in revenue
records provided that the
exemption shall not apply to
Factories, Warehouses, Cold
Storage & Slaughter Houses.
14. Though, the copy of said Notification was not placed on the record, the said Notification dated 24.08.1963 finds a mention and approved in the case of Municipal Corporation of Delhi v. Dalmia Dairy Industries Ltd & Anr., 32 (1987) Delhi Law Times 390 (DB) decided by the Hon'ble High Court of Delhi as also in another case titled as Dr. B.L. Wadhera v. Govt. of NCT of Delhi & Ors., 113 RCA Nos. 23/2019 Jai Bhagwan & Anr. v. Jai Singh & Anr. Page 8 of 10 (2004) DLT 263(DB), also decided by the Hon'ble High Court of Delhi. In the case of MCD v. Dalmia Dairy Industries (supra), it was held that notification dated 24.08.1963 is of general nature and it applies to all the rural areas as lie within the village abadi as defined in terms of revenue records.
15. Finally, the issue is set at rest by the Notification No. F.7/79/ADLB/2016/CD-000383132/3827-3841, Delhi the 16th May, 2017 whereby His Excellency the Lieutenant General of National Capital Territory of Delhi declared certain areas ceasing to be rural areas deeming them to be urban areas and village Nilothi is mentioned at Sr. No.5 in Zone 'K-1' 5 No. If that is case, it goes to show that as on the date of filing of the plaint/suit i.e. 11.01.2016, Village Nilothi was falling in the old abadi Lal Dora area and exempted from application of DMC Act but as on today the said area ceases to be a rural area and shall be deemed to be urban area.
16. The ultimate result is that as on the date of filing of the suit, there was no cause of action in favour of the petitioner/revisionist as no sanctioned plan was required by the defendants/appellants for raising construction on their properties. There was no case of the plaintiff that the unauthorized construction impacted his easementary rights or damaged his property in any manner. The suit appears to have been filed to settle personal scores over the rival brothers/appellants and ill- motivated. In any case, the construction was not in the nature of Factories, Warehouses, Cold Storage or slaughter house. The RCA Nos. 23/2019 Jai Bhagwan & Anr. v. Jai Singh & Anr. Page 9 of 10 Notification dated 16.05.2017 cannot be applied retrospectively. Therefore, issue Nos. 2, 3, 4 and 5 must be held to be decided against the respondent No.1/ plaintiff, and accordingly, the present appeal is allowed and the impugned judgment dated 23.01.2019 is set aside. In the facts and circumstances of the case, the respondent No.1 / plaintiff is imposed with token costs of Rs.10,000/-. The appellants shall be entitled to costs of the legal proceedings as well. Decree-sheet be prepared accordingly.
17. Trial Court record along-with copy of Judgment be sent back to the Ld. Trial Court for information and records. The file of appeal be consigned to the Record Room. DHARMESH Digitally signed by DHARMESH SHARMA SHARMA Date: 2021.11.10 22:17:23 +0530 Announced in the open Court (DHARMESH SHARMA) th on 10 November, 2021 Principal District & Sessions Judge (West) Tis Hazari Courts: Delhi RCA Nos. 23/2019 Jai Bhagwan & Anr. v. Jai Singh & Anr. Page 10 of 10