Delhi District Court
Shri Bhagat Singh vs Shri Hira Lal on 6 July, 2007
1
IN THE COURT OF SH. GIRISH KATHPALIA,
ADDL. DISTRICT JUDGE, DELHI
SUIT NO. 163/04
SHRI BHAGAT SINGH
S/O LATE SHRI GURBANT SINGH
R/O C-325, KHASRA NO. 574/328
SITUATED AT SHARDANAND GALI
NANAK CHAND BASTI
KOTLA MUBARAKPUR
NEW DELHI. .....PLAINTIFF
versus
1. SHRI HIRA LAL
R/O C-325, KHASRA NO. 574/326
SITUATED AT SHARDANAND GALI
NANAK CHAND BASTI
KOTLA MUBARAKPUR
NEW DELHI.
2. MUNICIPAL CORPORATION OF DELHI
THROUGH ITS COMMISSIONER
TOWN HALL
CHANDNI CHOWK
DELHI. .....DEFENDANTS
DATE OF INSTITUTION: 29/08/2000
ARGUMENTS CONCLUDED ON: 23/05/07
DATE OF DECISION (post summer vacation): 06/07/07
Counsel for plaintiff: Sh. Sachin Verma, Advocate
Counsel for defendant no.1: Sh. V.P. Johri, Advocate
Counsel for defendant no.2.: Sh. Ikrant Sharma, Advocate
JUDGMENT
1. This is a suit seeking permanent injunction to restrain CS/163/04 Page 1 of 24 pages 2 the defendants from raising any further construction and to demolish the illegal structure erected by defendant no. 1 on the government land (herein after referred to as the "suit property") that falls in between khasra no. 574/326 and khasra no. 574/328, Shardanand gali, Nankchand Basti, Kotla Mubarakpur, New Delhi. Plaintiff and defendant no. 1 are neighbours, being residents of houses in between which the suit property is situated while defendant no. 2 is the Municipal Corporation of Delhi. This suit was initially filed before the Hon'ble Delhi High Court and subsequently got transferred to this court upon change in pecuniary jurisdiction. Vide order dated 01/09/2000, Hon'ble Delhi High Court issued an exparte ad interim injunction, thereby restraining the defendants from carrying out any construction in the suit property.
2. As pleaded in the plaint, plaintiff is owner and in possession of premises no. C-325 situated in khasra no. 574/328, Kotla Mubarakpur, New Delhi and defendant no. 1 is in possession of plot of land bearing no. C-325 in khasra no. 574/326, Kotla Mubarakpur, New Delhi exactly opposite the CS/163/04 Page 2 of 24 pages 3 house of the plaintiff. In between the houses of plaintiff and defendant no. 1, there is a vacant plot of land which is being used by both the parties as a common passage and the same is the only access to plaintiff's house from main road. As per plaintiff, main gate of his house opens into the said plot of land, described herein as the suit property which is shown red in the site plan annexed with the plaint.
3. On 07/08/2000 defendant no. 1 tried to encroach upon a portion of the suit property by erecting wooden partition so as to join the same with his house. Plaintiff strongly resisted the attempt as the suit property is common passage.
4. On 12/08/2000 defendant no. 1 in collusion with some muscle men suddenly dumped bricks and building material in the suit property and on the night intervening 12th and 13th August 2000, defendant no. 1 started raising illegal and unauthorized construction over the suit property. Plaintiff was threatened by muscle men of defendant no. 1 and he did not take law in hand. However on 16/08/2000 plaintiff approached the local police, who advised him to approach the defendant no. 2. On 17/08/2000 plaintiff brought to the CS/163/04 Page 3 of 24 pages 4 notice of defendant no. 2 the illegal encroachment and construction being carried out. Despite extending assurance, defendant no. 2 officials did not take any action and defendant no. 1 succeeded in raising brick walls and roof top over more than half the suit property which is not only obstructing plaintiff's passage but is also an illegal encroachment.
5. Hence this suit seeking permanent injunction to restrain defendant no. 1 from carrying on any further construction and mandatory injunction to direct the defendants to demolish the illegal construction and encroachment on the suit property.
6. In his written statement, the defendant no. 1 pleaded that there was never a gali/street between the property of plaintiff and that of defendant no. 1. This claim of defendant no. 1 is based on agreement to sell dated 06/10/98 where under house of the plaintiff had been purchased. As per description of the sold property in the said agreement to sell, there was no gali between houses of the parties.
7. Defendant also pleaded that plaintiff is not in possession of his house and the same is occupied by Sh. Banarasi Dass and Smt. Munni Devi who have not been impleaded as party in CS/163/04 Page 4 of 24 pages 5 the suit, as such the suit must fail for non joinder.
8. Defendant no. 1 pleaded that he did not raise any construction and had just repaired his dilapidated house. Plaintiff has brought the present suit to pressurize defendant no. 1 into selling his house to the plaintiff.
9. Defendant no. 1 denied the incident of 07/08/2000 as alleged by the plaintiff and pleaded that for carrying out repairs no permission from MCD is required.
10. MCD, the defendant no. 2 pleaded in its written statement that the suit is barred by provisions of section 477/478, Delhi Municipal Corporation Act for want of statutory notice. At the same time, defendant no. 2 also pleaded that the suit has become infructuous as MCD has already initiated action against the illegal and unauthorized construction raised by defendant no. 1 which was noticed by them. A show cause notice dated 27/03/01 was issued to defendant no. 1 and after considering his reply, the competent authority issued demolition notice dated 09/04/01.
11. Defendant no. 2 also pleaded that plaintiff is not owner of his house and the documents on the basis of which he CS/163/04 Page 5 of 24 pages 6 claims title do not confer any right or title on the plaintiff, so the discretionary relief of injunction cannot be granted.
12. As reflected from proceedings dated 05/05/03 before the ld Joint Registrar, Delhi High Court ld counsel for plaintiff opted not to file replication.
13. On the basis of pleadings my ld predecessor framed the following issues:-
1. Whether the plaintiff is the owner of property no. C-325, Khasra No. 574/328 and entitled to relief of injunction? OPP
2. Whether the suit is not maintainable for want of statutory notice under section 477/478 of the D.N.C. Act, 1957, against defendant no. 2? OPD-2.
3. Whether the suit has become infructuous as unauthorized construction has already been demolished by the MCD on 27/01/01? OPD-2.
4. Relief.
14. In support of his case, plaintiff appeared as his solitary witness while on behalf of defendant no. 1 as many as eight witnesses were examined; no evidence was adduced on behalf CS/163/04 Page 6 of 24 pages 7 of defendant no. 2 despite repeated opportunities. I have heard ld counsel for all the parties and perused the record. My findings on the issues framed are as under:- ISSUE NO. 1
15. Plaintiff stepped into the box as PW1 to depose on oath the contents of his plaint and proved on record the relevant documents as Ex.PW1/1-11. PW1 deposed that he is owner and in possession of property no. C-325 situated in khasra no. 574/328, Shardanand gali, Nanak Chand Basti, Kotla Mubarakpur, New Delhi by virtue of agreement to sell Ex.PW1/1 and general power of attorney Ex.PW1/2 both dated 06/10/98 executed in his favour by the earlier owner Sh. Ganga Ram. He placed on record site plan as Ex.PW1/3, showing both houses and the suit property and stated that the same is being jointly used by him as well as the defendant who resides across the said passage. PW1 stated that main gate of his house opens into the suit property. In his testimony, PW1 narrated the incidents of 07/08/2000 and 12/08/2000 on oath. PW1 specifically deposed that on 17/08/2000 he had brought to the notice of defendant no. 2 the ongoing CS/163/04 Page 7 of 24 pages 8 encroachment and illegal construction by defendant no. 1 but officials of defendant no. 2 gave a bare assurance to take action and no action was taken by them. He also placed on record the photographs Ex.PW1/4-11 showing illegal construction. PW1 deposed that defendant no. 1 who is neither owner nor in possession of the suit property has been carrying on illegal encroachment and construction due to which plaintiff's passage is being completely obstructed. He also deposed that defendant no. 2 has statutory duty to ensure that no illegal construction is carried out within its jurisdiction, but defendant no. 2 has failed to perform its statutory obligations despite knowledge of encroachment and illegal construction by defendant no. 1.
16. In his cross examination on behalf of defendant no. 2, PW1 stated that he did not know full details but was aware that MCD had taken some action against the unauthorized constructions in the area. He did not know that demolition notices have been sent to defendant no. 1. In cross examination on behalf of defendant no. 1, PW1 stated that the property he purchased admeasures 39 sq. yards and when he CS/163/04 Page 8 of 24 pages 9 purchased the same, he was given possession of only one room. He stated that on west of plot no. 321 khasra no. 574/328 there is a passage of 6 feet width. On 12/08/2000 when defendant no. 1 started construction, he approached police but they directed him to the MCD. PW1 did not have copy of the said police complaint. As per PW1, he is residing in his father's house which is behind the suit property and he does not have any ration card in respect of his house. PW1 denied the suggestion that he is not owner of his house and has filed the present suit to grab the property of defendant no.
1. He also denied the suggestion that he had offered Rs.5,00,000/- to defendant no. 1 for purchase of his property.
17. Defendant no. 1 appeared as DW1 to depose on oath the contents of his written statement. He stated that there was never any passage of 6 feet width between his property and the property of plaintiff. He stated that plaintiff is not in possession of his house and in fact the same is occupied by Sh. Banarasi Dass and Smt. Munni Devi who have not been impleaded as party. As per DW1 he did not raise any fresh construction and was carrying out only repairs of his CS/163/04 Page 9 of 24 pages 10 dilapidated house. In order to show that his house is in existence since the year 1960, DW1 also placed on record certain house tax bills as Ex.DW1/1-5.
18. In his cross examination, DW1 stated that he did not have title deeds of his house which admeasures 16 feet in width and 23 feet in length. On being shown photograph Ex. PW1/4, DW1 stated that the building under construction shown in the photograph is not his house. DW1 admitted that he had received notice from MCD regarding unauthorized construction and the same construction was demolished by the MCD. He denied having raised any construction over the area shown red in the site plan though he could not locate his house in the site plan Ex.PW1/3. DW1 stated that all the houses in khasra no. 326 are joined with each other and have only one opening towards Shradanand gali. DW1 could also not identify his house in photographs Ex.PW1/4-11. He denied the suggestion that a 6 feet gali existed between his house and house of plaintiff.
19. DW2 to DW8 are residents of the same locality, who furnished same and stereo typed chief affidavits, deposing that CS/163/04 Page 10 of 24 pages 11 there was no gali between the houses of plaintiff and defendant no. 1 and that defendant no. 1 did not carry out any new construction or encroachment though he had repaired his old house.
20. But in their cross examination, substantial contradictions and implausibilities came up. Rather, a court observation was recorded during the cross examination of DW3 to the effect that the witness spoke a sentence without even being asked any question, which reflects that the witness was tutored one. Not only this, DW8 at the very inception of cross examination stated that he was not aware as to what was written in his chief affidavit and also stated that he had affixed thumb mark on the affidavit at directions of counsel for defendant no. 1. Almost all the witnesses of defendant including the defendant no. 1 himself expressed inability to read site plan Ex.PW1/3 and to locate the house of defendant no. 1 from photographs, which was a deliberate attempt to avoid cross examination on vital facts.
21. DW2 stated that premises no. 325 consist of four houses while DW3 stated that the said premises consist of three CS/163/04 Page 11 of 24 pages 12 houses. Both these witnesses stated that they could not read site plan. DW2 stated that he cannot identify the premises shown in photographs Ex.PW1/4-11 while DW3, without even being asked, stated on her own that she cannot identify the premises shown in the photographs on which the court observation was recorded. While DW2 stated that he did not know if MCD had taken any action against the defendant no. 1, DW3 stated that MCD had come to demolish a part of the house of the defendant no. 1 but they did not demolish the same completely as it was in dilapidated condition.
22. While other witnesses of defendant no. 1 stated that defendant no. 1 had carried out repairs of his dilapidated house, DW4 stated that the defendant no. 1 only white washed his house. DW4 stated that the MCD did not come to demolish the house of defendant no. 1 in his presence as he was away for Rajasthan for 15 days.
23. DW5 in his cross examination stated that the house of Banarasi Dass opens in Shradanand gali which is towards the west side of the house. He also stated that on east side of the house of defendant no. 1, Banarasi Dass is residing. He also CS/163/04 Page 12 of 24 pages 13 stated that house of defendant no. 1 is on west side of the house of Banarasi Dass. Almost all the witnesses of the defendant no. 1, including the defendant no. 1 himself, stated that plaintiff's house is being occupied by Banarasi Dass and Munni Devi. That being so, it is established from defendant's own evidence that there was a gali between the house of defendant no. 1 and the plaintiff.
24. DW5 also admitted that gali Shradanand goes ahead of the defendant's house till the main road, which also goes to support plaintiff's case that the suit property gali is the only access for plaintiff to the main road. DW5 stated that MCD had demolished a part of defendant's house though not in his presence.
25. DW6 stated that MCD had demolished balcony of house of defendant no. 1 and admitted that till date the said balcony exists though slightly damaged. DW6 also admitted that for going to the house of Banarasi Dass, which is, as per plaintiff, his house, one passes through a street. That also shows existence of a gali, the suit property between the houses of plaintiff and defendant no. 1. DW7 stated that there is no CS/163/04 Page 13 of 24 pages 14 street connecting the house of Mr. Jain and house of the defendant but at the same time stated that these two houses are not adjacent and there is a passage between the houses. In contradiction with testimony of DW6, DW7 denied that there is a passage going till the house of Banarasi Dass.
26. All the witnesses of defendant claimed to know about the lay out of defendant's house but each gave a different picture of the same.
27. Evidence must be qualitative and not merely quantitative but in this case even the quantitative evidence adduced on behalf of defendant is totally self contradictory and unreliable, when read in its entirety. For, the evidence of defendant read in its totality shows that all the witnesses of defendant were not just tutored ones but also unclear about the topography of the area.
28. On behalf of defendant no. 2, the MCD, a status report prepared by Junior Engineer(Bldg) and Assistant Engineer(Bldg) of Central Zone, MCD was filed to the effect that the suit property stands booked for action vide file dated 27/03/01 and as per MCD records, due to stiff resistance from CS/163/04 Page 14 of 24 pages 15 local residents, only a part of demolition was taken on 24/04/01; subsequently demolition was planned several times but could not be done due to non availability of police or shortage of time.
29. It was argued on behalf of defendant no. 1 that plaintiff not being owner of his house has no right to bring this suit. It was argued that since no sale deed exists in the name of plaintiff, the suit ought to have been filed in the name of earlier owner of plaintiff's house. It was also argued that since plaintiff is residing with his father, he cannot claim that his passage is getting blocked. Ld counsel for defendant no. 1 placed reliance on agreement to sell Ex.PW1/1 by way of which plaintiff purchased his house. The said agreement to sell describes the house of plaintiff as bound by house of Shera Sen in east, house of Mangal Ram in west, house of Gurwant Singh in north and house of Nank Chand in south. It was argued that even plaintiff's documents show no gali connected with his house.
30. Ld counsel for plaintiff argued that even as per MCD status report there was a partial demolition of defendant's CS/163/04 Page 15 of 24 pages 16 house, which pertains to the portion encroached upon in gali. It was argued that defendant no. 1 stated in his testimony that he did not have title deeds of his house and the same was done to conceal the exact portion owned by defendant no. 1. Ld counsel for plaintiff also pointed out various infirmities in the testimony of defendant's witnesses as discussed above.
31. So far as agreement to sell Ex.PW1/1 is concerned, a very substantial emphasis of defendant is that the same does not show any gali. The argument is fallacious. For, there cannot be a house, that too an occupied one (which is also the case of defendant no. 1), which is bound by houses from all four sides, without any exit space. Apparently the agreement to sell Ex.PW1/1 does not properly describe the house of the plaintiff and instead of declaring a road followed by a house, it simply describes the house. For this purpose, no reliance can be placed on description of plaintiff's house in agreement to sell.
32. Defendant's argument that plaintiff is not owner of his house and suit should have been filed in the name of earlier owner also is merit less. Plaintiff has placed on record as CS/163/04 Page 16 of 24 pages 17 Ex.PW1/1&2 the registered General Power of Attorney and notarized agreement to sell and affidavit executed by earlier owner Ganga Ram in the name of plaintiff. It is now a settled legal position that in Delhi, owing to its peculiar circumstances, transfer of immovable property by way of agreement to sell and registered general power of attorney etc is a valid transfer in the eyes of law.
33. As per testimony of PW1, he is in possession of one of the rooms of his house, though he is residing with his father. As per defendant no. 1, the house of plaintiff is occupied by Banarasi Dass and Munni Devi. Merely because plaintiff is presently not residing in his house does not disentitle him from bringing this suit in order to protect his ingress and egress of his house.
34. Plaintiff has also placed on record as Ex.PW1/4-11, photographs of the suit property. Not only defendant's witnesses, even the defendant no. 1 himself expressed inability to locate house of defendant no. 1 in the photographs. It would be important to note that none of the witnesses, nor even the defendant no. 1 claimed that these photographs do not pertain CS/163/04 Page 17 of 24 pages 18 to the disputed area. These photographs clearly show a blatant encroachment on a gali, which is the suit property and that too to the extent of blocking passage to plaintiff's house. Even the aerial views Ex.PW1/8,10&11 would show the separate freshly constructed structure by the side of an old construction of defendant's house, the fresh construction being an encroachment on the suit property.
35. Not only from the evidence brought by plaintiff but also from evidence of defendant's own witnesses, coupled with MCD status report it is clearly established that there was a gali, which is the suit property between the houses of plaintiff and defendant no. 1 and some construction undertaken by defendant no. 1 has been booked by the MCD but complete demolition could not be done due to resistance of local residents.
36. In view of above discussion, issue no. 1 is decided in favour of plaintiff and I accordingly hold it proved that plaintiff is owner of property no. C-325, khasra no. 574/328, Shradanand gali, Nank Chand Basti, Kotla Mubarakpur, New Delhi and is entitled to the relief of injunction.
CS/163/04 Page 18 of 24 pages 19 ISSUE NO. 2
37. Despite the onus to prove this issue being on defendant no. 2, neither any evidence was adduced nor any arguments advanced on behalf of defendant no. 2 on this score. As per MCD status report also, there has been an illegal construction undertaken by the defendant no. 1 which could not be demolished due to public resistance. It is not the case of MCD that there is no illegal construction or an encroachment done by the defendant no. 1.
38. For the erection of a new building or of reconstruction of any building, the procedure is prescribed under chapter XVI of the Delhi Municipal Corporation Act. Section 331 defines the expression " to erect a building." Section 332 provides that no person shall erect or commence to erect any building or execute any of the works specified in section 234 except with the previous sanction of the Commissioner. Section 343(1) of the Act empowers the Commissioner to order demolition of the offending erection work or any building covered by the Act. The proviso to the section mandates the issuance of show cause notice before demolition is ordered. Section 343(2) CS/163/04 Page 19 of 24 pages 20 prescribes procedure for appeal against the order of Commissioner made under section 343(1). Section 343(3) deals with power of the appellate tribunal to stay enforcement of the impugned order. Section 343(4) of the Act which is the centre point of present issue is as under:-
"No court shall entertain any suit, application or other proceeding for injunction or other relief against the Commissioner to restrain him from taking any action or making any order in pursuance of the provisions of this section."(emphasis supplied) The other important provision, relevant for present purposes is section 347E of the Act, which is reproduce as follows:-
"1. After the commencement of section 7 of the Delhi Municipal Corporation (Amendment) Act,1984, no court shall entertain any suit, application or other proceedings in respect of any order or notice appealable under section 343 or section 347B and no such order or notice shall be called in question otherwise than by preferring an appeal under those section.
2. Notwithstanding anything contained in sub-section (1), every suit, application or other proceeding in any court immediately before the commencement of section 7 of the Delhi Municipal Corporation (Amendment) Act, 1984, in respect of any order or notice appealable CS/163/04 Page 20 of 24 pages 21 under Section 343 or Section 347B, shall continue to be dealt with and disposed of by that court as if the said section had not been brought into force."
Section 477 of the Act affords protection of the bonafide action of corporation etc. against any suit or prosecution. Section 478(1) of the Act mandates issuance of two months written notice to the MCD before instituting any suit against it. Section 478(3) of the Act contemplates that the notice under section 478(1) of the Act may be dispensed with where in a suit the only relief claimed is an injunction, object whereof would be defeated by giving notice or by postponement of institution of suit.
39. Sections 477 and 478, Delhi Municipal Corporation Act pertain to only the acts and the intended acts of the corporation and not to the omissions. Even in the landmark judgment of SHIV KUMAR CHADHA vs MCD, (1993) 3 SCC 161 Hon'ble Supreme Court held that the civil court should not ordinarily entertain a suit in connection with the proceedings initiated for demolition and should direct the aggrieved person to the appellate tribunal and then to the Administrator. There is no bar to sue MCD seeking a mandate CS/163/04 Page 21 of 24 pages 22 that MCD should do its statutory duty of ensuring that no illegal construction is undertaken in its area.
40. In view of above discussion, issue no. 2 is decided0 against defendant no. 2 and I hold it not proved that the suit is not maintainable for want of statutory notice under section 477/478 of the DMC Act.
ISSUE NO. 3
41. On this issue also, despite the onus being on them, the MCD neither led any evidence nor addressed any argument. Rather, the status report filed by MCD shows that the suit property has already been booked by them on which partial demolition was undertaken but due to stiff resistance from residents, the demolition could not be completed. As reflected from testimony of defendant's own witnesses also the MCD did only a cosmetic demolition by damaging a part of balcony constructed by the defendant no. 1.
42. This is not a case of mere unauthorized construction by the defendant no. 1 in his house without getting the building plans sanctioned; this is a case of encroachment upon public land, which must be taken very seriously by not just the CS/163/04 Page 22 of 24 pages 23 defendant no. 2 but by the local police and other authorities as well.
43. Issue no. 3 is decided against defendant no. 2 and I hold it not proved that the suit has become infructuous on account of demolition done by the MCD on 27/01/01.
ISSUE NO. 4(RELIEF)
44. In view of above discussion, suit of the plaintiff succeeds and is decreed against both the defendants thereby restraining defendant no. 1 permanently from raising any unauthorized construction in his house being house no. C-325, situated in khasra 574/326 Shradanand gali, Nank Chand Basti, Kotla Mubarakpur, New Delhi and/or encroaching upon any land in the adjoining area and directing both the defendants to demolish the structure which is existing in the form of brick walls and roof on the suit property being the plot of land in between the houses of plaintiff in khasra no. 574/328 and of defendant no. 1 in khasra no. 574/326 (shown red in the site plan Ex.PW1/3) in Shradanand gali, Nank Chand Basti, Kotla Mubarakpur, New Delhi. Plaintiff shall also be entitled to cost of the suit.
CS/163/04 Page 23 of 24 pages 24
45. Decree sheet be accordingly drawn up and file be consigned to record room.
Announced in the open court on 6th July, 2007 (GIRISH KATHPALIA) ADDL. DISTRICT & SESSIONS JUDGE DELHI.
CS/163/04 Page 24 of 24 pages