Delhi District Court
Satish Kumari vs . R.P. Jain & Anr. on 24 March, 2015
Satish Kumari Vs. R.P. Jain & Anr.
IN THE COURT OF MS SURYA MALIK GROVER
SENIOR CIVIL JUDGE-CUM-RENT CONTROLLER (SOUTH)
SAKET COURTS, NEW DELHI
CS No. 245/13
Unique ID No. 02406C0437382010
IN THE MATTER OF:
SMT. SATISH KUMARI
W/o Late Sh. Nutan Deva
R/o 13, (Ground Floor)
DDA Flats, Usha Niketan
Safdarjung Development Area,
Block C, New Delhi-110016 ....PLAINTIFF
VERSUS
1. SH. R.P. JAIN
R/o 14, First Floor
DDA Flats, Usha Niketan
Safdarjung Development Area
Block C, New Delhi-110016
2. THE COMMISSIONER
Municipal Corp. of Delhi
Town Hall, Chandani Chowk
New Delhi. ....DEFENDANTS
DATE OF INSTITUTION : 10.09.2003
DATE OF RESERVING THE JUDGMENT : 19.03.2015
DATE OF DECISION : 24.03.2015
CS No. 245/13 Page 1 of 17
Satish Kumari Vs. R.P. Jain & Anr.
J U D G M E N T
1. This is a suit filed by plaintiff for Permanent Injunction
2. Briefly stated, it is the case of the plaintiff that he is owner of premises bearing no. 13 (Ground floor), DDA Flats, Usha Niketan, Safdarjung Development Area, Block C, New Delhi-110016 which was allotted to her late husband Sh. Nutan Deva by the DDA vide lease deed dated 18.09.1974. The said DDA Flat was got free hold on 23.03.1988.
3. It is stated that the plaintiff's husband left a will dated 23.03.1988 and the said property was bequeathed in the name of plaintiff by her husband who died on 15.12.2002, therefore plaintiff became the sole exclusive owner of the said flat. Defendant no.1 resides at first floor flat no.14 comprising of two rooms, two toilets, covered verandah and open terrace.
4. It is the case of the plaintiff that she found seepage/leakage in the ceiling and walls of drawing room, garage and one bed room and drawing room i.e. the wooden cup-board was flooded with water which resulted in short circuit and the cup-board was damaged and the dwelling unit had become inhabitable. Plaintiff's son visited first floor to find the reason for seepage/leakage, and found that defendant no.1 had dismantled certain walls on the terrace to accommodate pipes CS No. 245/13 Page 2 of 17 Satish Kumari Vs. R.P. Jain & Anr.
for the underneath service outlets and also caused damage to the open terrace. Defendant no.1 also cut holes in the joint walls on the terrace to pass sewerage pipes presumably for the provisions of toilet and some construction was raised on the joint walls of the terrace to construct room presumably with attached toilet, which resulted in heavy seepage/leakage at the ground floor. Plaintiff's son strongly protested the illegal and unauthorized construction but to no avail and continued the construction. Hence, plaintiff had no other option except to approach the Civic Authorities for immediate action vide letter dated 18.08.03.
5. It is further stated that the additional load caused by this heavy structure on terrace may result in collapse of common wall of the ground floor which was not designed to bear so much load at the terrace, which may result in loss of life and therefore, the plaintiff is under constant threat of risk of life.
6. It is further stated that Lease Deed dated 18.09.74. Para 14 contemplates "no erection on any flats to make alteration and addition either externally or internally to such flat without written permission of the lessor." It is further stated that according to the MCD Act 1957 and Bye Laws and Rules framed thereunder, no unauthorized and illegal construction can be raised but defendant no.2 neglected performing their CS No. 245/13 Page 3 of 17 Satish Kumari Vs. R.P. Jain & Anr.
statutory duties regarding illegal/unauthorized construction in the DDA Flats.
7. It is hence prayed that a decree of permanent injunction be passed in favour of plaintiff and against defendant no.1 thereby permanently restraining him from making or raising any unauthorized and illegal construction at first floor of flat no. 14 on the terrace of the ground floor and restraining from demolishing/dismantling and breaking the joint structures as shown in site plan. Further, it is prayed that a decree of mandatory injunction may also be passed to remove illegal and unauthorized structure already constructed and to restore it to the same position as was allotted by the DDA and also rectify the damage caused to the ground floor of the plaintiff in flat no. 13 (Ground Floor).
8. Written Statement has been filed on behalf of the defendant no. 1 submitting therein that he has been permitted to do additions/alterations/additional coverage vide notification / office order of MCD dated 13.08.2003. It is further submitted that in pursuance of the said order, coverage on floor level terrace has been allowed on payment of necessary charges as prescribed.
CS No. 245/13 Page 4 of 17Satish Kumari Vs. R.P. Jain & Anr.
9. It is further submitted that the plaintiff has concealed the material fact that the additional coverage on the floor level terrace of the flat in occupation of the defendant no. 1 has been carried out with oral consent of plaintiff and his family members. It is further submitted that additional coverage has been certified by Sh. Deepak Agaraiya, Engineer to be structurally safe and in accordance with specifications.
10. It is further submitted that after completion of structural work, discussions were held between the son of the defendant no. 1 and son of the plaintiff, when the son of plaintiff proposed to connect said pipes to two sewers provided in the common lawn on the ground floor for disposal, being nearest point for the said purpose and the floor level has been made keeping in view the suggestion of son of the plaintiff and the same was agreed by defendant no. 1 and his son, however, the son of the plaintiff sought time to suggest the mode of laying the said pipes and connecting the same to two sewer manholes existing in the common lawn on the ground floor and thereafter, the present suit has been filed. Defendant no. 1 has denied the other averments made in the plaint and has prayed for dismissal of the present suit with exemplary costs.
11. Written statement has been filed on behalf of defendant no. 2 submitting therein that the present suit is barred under CS No. 245/13 Page 5 of 17 Satish Kumari Vs. R.P. Jain & Anr.
Section 477/478 Act for want of service of notice. It is further submitted that the defendant no. 2 has contemplated action under Section 343/344 of DMC Act against the unauthorized construction carried out by the defendant no. 1 in the suit property and a show cause notice was also issued to defendant no. 1. Defendant no.2 has further stated that regularization application moved by the defendant was rejected due to non submission of consent of the residents of DDA flat in a vertical stand and as they did not apply jointly for permission and regularization of additions/alterations in DDA flats.
12. Separate replications were filed to the written statement filed on behalf of defendant no.1 and defendant no. 2, in which the averments in the plaint were reiterated and the submissions made in the written statements were denied as false and incorrect.
13. The following issues were framed for adjudication on 19.07.2004 :-
1. Whether the plaintiff has not come to the court with clean hands and has suppressed material facts? OPD.
2.Whether the suit of the plaintiff is barred under section 477/478 of DMC Act? OPD
3.Whether the plaintiff is entitled to the CS No. 245/13 Page 6 of 17 Satish Kumari Vs. R.P. Jain & Anr.
decree for permanent injunction as prayed for? OPP
4. Relief.
14. It is noteworthy that as recorded in order dated 08.02.12, neither of the parties had any objections to the framing of the additional issue on 08.02.12 by Ld. Predecessor as under:
"Whether the plaintiff is entitled to the relief of mandatory injunction, as prayed for in prayer clause
(b) & (c)? OPP The said issue shall be treated by this Court as Issue no.3A EVIDENCE ON RECORD
15. The plaintiff in support of her case examined herself as PW1 and Sh. Raju as PW2. Plaintiff i.e. PW1 tendered her affidavit in evidence as Ex. PX. Further, following documents have been tendered i.e copy of lease deed Mark A, free hold document Mark B, Will Mark C, Death Certificate Ex.PW1/4, photographs without negatives Ex.PW1/5, layout plan Mark D, photographs without negatives Ex.PW1/7, letter dated 18.08.2003 Ex.PW1/8, copy of postal receipts Mark E, letter dated 31.08.2003, endorsed by SHO Ex.PW1/11, copy of status report Mark F, copy of letter dated 12.03.2004 Mark G, another copy of letter, copy of document dated 0402.2004 Mark H, CS No. 245/13 Page 7 of 17 Satish Kumari Vs. R.P. Jain & Anr.
status report Mark I, document referred to as Ex.PW1/17 is order passed by this Court. Thereafter PE was closed on 08.02.2012.
16. Defendant no.1 in support of his case examined Sh. S.K. Jain as DW1 and Sh. Deepak Agaraiya as DW2. DW1 tendered his affidavit in evidence as Ex. DW1/A and relied upon the documents i.e. policy of July 2003 allowing additions/alteration in DDA Flat as Ex.DW1/1, copy of office order/notification dated 13.08.2003 as Mark D1, photograph as Ex.DW1/3 which is already Mark A (colly.) photograph as Ex.DW1/4 which is already exhibited as Ex.PW2/D1, photograph exhibited as Ex.DW1/5 in his affidavit exhibited as Ex.PW1/X1, photograph exhibited as Ex.DW1/6 in his affidavit is already Mark B, Ex. DW1/7 and Ex.DW1/8 in his affidavit as Mark D2 and Ex.DW1/9 as Mark D3 and medical record of defendant no.1 as Mark D4 (colly.) DECISION AND LEGAL REASONING
17. It has been argued by the plaintiff that additional coverage which has been done by him on the floor level terrace in his flat is in accordance with building bye laws and no permission whatsoever of the plaintiff was required for said coverage. Further, the said work was undertaken in consultation CS No. 245/13 Page 8 of 17 Satish Kumari Vs. R.P. Jain & Anr.
with M/s GRS Associates and Consultants and other Construction Managers and Structural Designers and Engineers to ensure structural safety of the work carried out and also issued certificate dated 03.09.2003. Further, said work of additional coverage was supervised by qualified Civil Engineers who had also issued certificate dated 06.09.2003 in this regard. Further, it has been argued that though the application of the defendant no. 1 for regularization had been rejected by defendant no. 2, a writ petition was filed by the defendant no. 1 in WP (C) No. 12249/09 and CM Application No.12532/2009 wherein it has been held by Hon'ble High Court that coverage done by the defendant no. 1 does not require consent of the ground floor owners and therefore, does not fall under Sub Clause (1) of Clause III of Policy and Procedure for Permission and Regularization for additions/alteration in DDA Flats and therefore, the only requirement is fulfillment of bye laws and building safety.
18. In rebuttal, Ld. counsel for plaintiff has argued that as the coverage was done without permission of ground floor owner and it resulted in seepage in his property, the defendant no.1 must pay damages as well as remove the said construction as the same had resulted in seepage and leakage in the flat of the plaintiff and safety concerns for the plaintiff as the building safety measures had not been duly complied with. Hence, the CS No. 245/13 Page 9 of 17 Satish Kumari Vs. R.P. Jain & Anr.
suit of the plaintiff deserves to be decreed.
19. I have given careful consideration to the submissions advanced by Ld. counsel for the plaintiff Sh. Bhavesh Kumar and Ld. counsel for defendant no.1 Sh. P.K. Jain. However none represented defendant no.2 at the stage of final arguments.
20. My issue-wise findings are as under:
Issue No. 1:
Whether the plaintiff has not come to the court with clean hands and has suppressed material facts?OPD.
21. The onus to prove this issue was upon the defendant no.
22. The said preliminary objection had been taken by defendant no.1 that the plaintiff had consented to the additional coverage on the floor level terrace of the flat of the defendant no.1 in payment of charges which was permissible. Moreover the plaintiff is himself guilty of converting garage into pucca living rooms without the permission of the authorities and therefore not entitled to any relief from this Court.
CS No. 245/13 Page 10 of 17Satish Kumari Vs. R.P. Jain & Anr.
23. As far as the question whether consent of the plaintiff was taken by defendant no.1, the plaintiff has flatly denied that any consent was ever given by her to the defendant no.1 in her replication as well as cross-examination.
24. As regards the factum whether plaintiff herself has covered her garage and converted it into a room, the same has been denied by the plaintiff. The defendant no.1 has not moved any complaint to the statutory authorities in this regard and hence, nothing can be made out from the judicial record if the garage in question has been covered by the plaintiff in violation of the building bye laws. In any case, there is no evidence on record to show that the garage in question has been booked for unauthorized construction.
25. In the facts and circumstances I am of the considered opinion that the defendant no.1 has failed to prove that plaintiff has not approached the Court with clean hands or has suppressed any material facts from the Court.
26. Hence, the issue stands decided against defendant no.1.
Issue No. 2:
Whether the suit of the plaintiff is barred under section 477/478 of DMC Act?OPD CS No. 245/13 Page 11 of 17 Satish Kumari Vs. R.P. Jain & Anr.
27. The onus to prove this issue was upon the defendant no.
28. The objections raised by defendant no.2 that no statutory notice was served upon the defendant no.2 in terms of Section 478 of DMC Act is totally meritless on account of the fact that Section 478(3) provides that in case of urgent matters where service of statutory notice shall result in defeating the object for which the suit has been filed, exemption of statutory notice is liable to be granted. Hence as the matter has been filed for restraining unauthorized construction, it is covered U/s. 478(3) DMC Act
29. Hence, issue stands decided in favour of plaintiff and against defendant no.1.
Issue No. 3:
Whether the plaintiff is entitled to the decree for permanent injunction as prayed for?OPP and Issue No. 3A:
Whether the plaintiff is entitled to the relief of mandatory injunction, as prayed for in prayer clause (b) &
(c)? OPP CS No. 245/13 Page 12 of 17 Satish Kumari Vs. R.P. Jain & Anr.
30. Issues no.3 and 3A are being decided simultaneously.
The onus to prove both these issues was upon the plaintiff.
31. The parties are not at dispute that the property in question is governed by Policy and Procedure for Permission and Regularization of Additions/Alterations in DDA Flats issued by the Delhi Development Authority in the year 2003. Admittedly, this has also been duly adopted by the MCD. Copy of the said policy is Mark D1.
32. Perusal of the site plan on record, Mark D reflects that the disputed coverage that has been carried out by defendant no.1, is on top of a pre-existing floor level terrace, and not on any floor level terrace that would have become available as a result of fresh coverage of either a courtyard or terrace of the floor below.
33. The sole point of consideration before this Court is whether defendant no.1 was required to obtain consent from the plaintiff who is resident of the flat below him for the additional coverage in question ?
34. This issue has been dealt with by Hon'ble Justice S.K. Mishra in his order dated 09.07.14 passed in W.P(C) 12249/2009 & CM APPL. No. 12532/2009 titled R.P. Jain Vs. CS No. 245/13 Page 13 of 17 Satish Kumari Vs. R.P. Jain & Anr.
MCD in para 6 wherein he has observed reproduced as under:
"According to counsel for the respondent no.3, no additional coverage whatsoever is permitted without prior permission. For this purpose, he relies on the heading of Clause (III). He states that in view of this, even if it is assumed that the matter is covered under sub clause (1) of Clause III, the additional coverage could only be done with the prior permission of both the MCD as well as the flat owner. In substance, the case of the respondent no.3 is that the matter falls within the ambit of sub Clause (2) of Clause III and therefore the consent of the third respondent is compulsorily required. I do not agree. To my mind, the matter does not fall within the scope of sub Clause (ii) of Clause III for the simple reason that the precondition for the application of sub clause (ii) is that the area should have become available, "as a result of coverage of .....", of court yard/ terrace or floor below". Admittedly, in the instant case, that area that was available to the petitioner for coverage, has not become available as a result of coverage that has been carried out in the floor below. It is a pre-existing covered area. Consequently, the coverage in question shall fall in sub clause (1) of Clause III. It follows therefore that the only requirement is the fulfilment of byelaws and building safety, which is within the domain of the Corporation."
(underlining mine)
35. Further in para 7 of the said order, the Hon'ble High Court has observed that the rejection of the application of defendant no.1 for regularization is ex-facie not sustainable and in para 10, MCD has been directed to re-examine the application and decide the same in terms of the policy and procedure without CS No. 245/13 Page 14 of 17 Satish Kumari Vs. R.P. Jain & Anr.
insisting for compliance of para III clause 2 of the said policy and only requirement is fulfilment of bye laws and building safety norms.
36. In view of the aforesaid I am satisfied that defendant no.1 has been able to establish that he was not required to obtain consent from the ground floor owners for the coverage on the floor level terrace.
37. Coming to the next argument raised by the plaintiff that on account of the said construction, there was seepage and leakage in the house of the plaintiff on the ground floor, the plaintiff has failed to prove that the said seepage in her premises was on account of the alleged construction. Neither the opinion of any independent structural engineer or any other independent witness i.e. plumber or person having any technical knowledge in this regard has been led to prove that alleged seepage /leakage was on account of the coverage done by defendant no.1.
38. Further, in cross-examination of plaintiff recorded on 28.01.11, the plaintiff has admitted that there is WC and bath constructed on the floor level terrace of the second floor flat no. 15 but has stated that she does not know if the drain pipe of the said toilet cum bath is installed on the wall of the room of her CS No. 245/13 Page 15 of 17 Satish Kumari Vs. R.P. Jain & Anr.
flat towards east on the ground floor.
39. Furthermore, the witness was shown two photographs to which she has stated that she cannot recognise whether they are of her property. Such a denial of photograph on the grounds that she cannot identify the property clearly appears to be evasive. Further, the photograph on record clearly and visibly shows a pipe coming from second floor up to the ground floor installed against the outer wall of property of the plaintiff. Hence, the case of the plaintiff that the seepage in her property is due to coverage done by defendant no.1 does not inspire confidence.
40. Moreover defendant no.1 has led evidence of Sh. Deepak Agaraiya, DW2 a qualified structural engineer who has issued certificate dated 06.09.03 as Ex.DW2/1 stating that the work was carried out under his supervision and complies with the requisite safety norms.
41. Last but not least, even though the plaintiff has alleged that on account of the alleged construction, the house of the plaintiff has suffered damages, no oral or documentary evidence with regard to the quantum of damages suffered to prove monetary loss/ or to health of the plaintiff or her family has been established on record.
CS No. 245/13 Page 16 of 17Satish Kumari Vs. R.P. Jain & Anr.
42. Hence, as such the plaintiff has been able to establish beyond preponderance of probabilities that the construction in quantum was as per building bye laws and building safety norms.
43. In view of the aforesaid discussion both issue no.3 and 4 stand decided in favour of defendant no.1 and against the plaintiff.
Issue no. 5 Relief
44. In view of the decision of the issues as discussed above, the suit of the plaintiff stands dismissed as meritless.
45. No order as to costs.
46. Decree sheet be prepared accordingly.
47. File be consigned to record room.
Announced in the open Court (Surya Malik Grover) on 24.03.2015 SCJ-cum-RC (South), Saket Courts, New Delhi CS No. 245/13 Page 17 of 17