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Delhi District Court

(2). Sh. Kamal Kapoor vs (1). Sh. P.N. Luthra on 10 December, 2013

Suit No. 186/2012                                             1

      IN THE COURT OF SH. MANISH GUPTA SENIOR CIVIL 
      JUDGE­CUM­RENT CONTROLLER (NORTH DISTRICT), 
                 ROHINI COURTS,  DELHI

CASE No. 186/2012
UNIQUE CASE ID NO. 02404C0017612012

(1).  Sh. N.C. Jain,
S/o late Sh. R.S. Jain,
R/o 25­A, Dhruva, Apartments,
Sector­13, Plot 43,
Rohini, Delhi­110085.

(2). Sh. Kamal Kapoor,
S/o late Sh. Kahan Chand Kapoor,
R/o 25­B, Dhruva Apartments,
Sector­13, Plot No. 43,
Rohini, Delhi­110085..............................................................Plaintiffs
                                      Versus
(1). Sh. P.N. Luthra,
S/o Shri Ram Lal Luthra
R/o 14­C, Dhruva, Apartments,
Sector­13, Plot No. 43,
Rohini, Delhi­110085.

(2). Sh. S.B. Singhal,
S/o Shri S.R. Singhal,
R/o 16­C, Dhruva, Apartments,


                                                                                       Contd.....
 Suit No. 186/2012                                             2

Sector­13, Plot No. 43,
Rohini, Delhi­110085.

(3). The Delhi Pradesh Co.op Group Housing 
Society Pvt. Ltd.,
Through its President/Secretary,
Dhruva, Apartments,
Sector­13, Plot No. 43,
Rohini, Delhi­110085.

(4). Municipal Corporation of Delhi,
Through its Commissioner,
Town Hall, Chandni Chowk,
Delhi­110006.

(5). The Station House Officer,
Police Station, Rohini,
Delhi­110085...........................................................................Defendants

DATE OF INSTITUTION                                               :        13.08.1997
DATE OF HEARING ARGUMENTS                                         :        05.12.2013
DATE OF FINAL ORDER                                               :        10.12.2013

JUDGEMENT

1. This is a suit for Permanent and Mandatory Injunction.

2. I have already heard final arguments and perused the Contd.....

record.

3. In brief the case of the plaintiff as mentioned in the plaint is that the plaintiffs are members and allottees of respective flats in defendant no. 3 society and are residing therein. The defendant no. 3 is a Registered Society which has got constructed the plot/property under the name of 'Dhruva Apartments' according to the sanctioned lay out plan whereunder different building/apartments blocks have been constructed and space have been demarcated in the lay out plan inter­alia for underground water reservoir, pump house, community hall, green areas, parks etc. and there is no specific demarcation or sanction regarding the construction of any temple/religious place in the said plan. It is further mentioned that the defendants no. 1 and 2 are the members of the said society and residing in the flats. It is further mentioned that said defendants started committing serious illegal and unlawful activities by raising totally unauthorised construction on the property of the said society and which construction is directly prejudicial to the individual right and interests of the plaintiffs.

Contd.....

4. It is further mentioned in the plaint that the defendants no. 1 and 2 alongwith some others have encroached upon the open platform above the underground water reservoir and the fire fighting tank built within the premises of the society with a view to construct a temple thereupon and the said defendants have raised illegal construction in the portion shown in the red in the plan by raising pillars and placing asbestos sheets roofing thereupon. It is further alleged that the defendants intend to convert the said construction into commercial shops. It is further alleged that the entrance to the said temple is directly opposite to the entrance and staircase leading to the flats of the plaintiffs and is at bare distance of less than 15 ft. It is further mentioned that earlier defendants no. 1 and 2 were using the stilted and vacant portion of flat no. 28A for performing religious ceremonies for the past four years. It is further mentioned that the plaintiffs came to know that the defendants no. 1 and 2 alongwith some others were intending to encroach upon the said platform/open space above the underground water tank and make some illegal construction thereupon proposed to commence on 28.4.1997 and the plaintiffs immediately wrote a letter dated 19.4.1997 to the defendant no. 3 informing about the said illegal designs and proposed Contd.....

encroachment and also requested for suitable steps to be taken in the matter. It is further mentioned that pursuant thereto the defendants no. 1 and 2 approached the plaintiffs and categorically assured that no illegal construction or encroachment would be done upon the society's land/ property and the proposed construction of temple would be done only after obtaining requisite sanction from the concerned authorities and at the proper demarcated place as per the revised sanctioned lay out plan of the society.

5. It is further mentioned that contrary to their assurance the defendants no. 1 and 2 started raising construction upon the said underground water tank after 9.5.1997. It is further mentioned that the plaintiffs took steps against the illegal designs of the defendants no. 1 and 2 by lodging complaint dated 21.4.1997 to the Lt. Governor of Delhi and copies to DDA, police and others including defendant no. 3 and the plaintiffs also wrote letter dated 1.5.1997 to the DCP (Task Force) intimating about the said unauthorised construction proposed to be done by the said defendants and the plaintiffs even got issued and served a legal notice dated 5.5.1997 upon the defendant no. 3 Society and all concerned requesting to ensure that no illegal/unauthorised Contd.....

encroachment and construction is undertaken in the property belonging to the Society. It is further mentioned that the plaintiffs received a reply dated 5.5.1997 from the Secretary of the defendant no. 3 Society informing that the defendant no. 3 Society is not associated with the construction of the temple and further that the notification dated 30.4.1997, as already issued by the President of the defendant no. 3 Society, was also enclosed with the said reply. It is further mentioned that upon the aforesaid complaint of plaintiffs dated 21.4.1997, one police official from the Police Station Rohini inspected the site on 23.5.1997 and which was confirmed and followed up by the letter dated 23.5.1997 sent by the plaintiffs to the defendant no. 5/SHO, Police Station Rohini. It is further mentioned that the plaintiffs also received acknowledgement letters dated 26.5.1997 and 27.5.1997 regarding complaint no. 3211 from the office of Lt. Governor of Delhi in acknowledgement of the earlier complaint and the plaintiffs were advised to meet the Special Secretary to the Lt. Governor of Delhi after 15 days of the receipt of the letter in case no appropriate action is taken in the matter and the plaintiff no. 1 also received letter dated 27.5.1997 from the office of the Joint Director (Building), DDA informing that the area in question i.e. Sector­13, Contd.....

Rohini stands de­notified and accordingly DDA is not in a position to take any action and further requesting to pursue the matter with the MCD and thereafter the plaintiff wrote letter dated 3.6.1997 and 9.6.1997 to the Special Secretary to Lt. Governor, Delhi and Deputy Municipal Commissioner, Rohini Zone, Delhi respectively requesting action against the unauthorised construction and the plaintiff also wrote two more letters dated 9.6.1997 and 16.6.1997 to the Special Secretary to the Lt. Governor, Delhi and intimated about the threats advanced by defendants no. 1 and 2 and their accomplices to the plaintiff and his family members. The plaintiff also wrote several letters subsequently to various authorities. It is further mentioned that the plaintiff received only a copy of letter dated 14.7.1997 from the office of Commissioner of MCD, Delhi and addressed to Deputy Municipal Commissioner, Delhi forwarding his earlier complaint in the matter and instructions for stoppage of construction and removal of portion constructed. It is further mentioned that no effective action was taken by the said defendants no. 4 and 5 in the matter despite several requests and reminders. It is further mentioned that the defendants no. 1 and 2 are continuously raising illegal and unauthorised construction over the said underground water tank and Contd.....

such actions are seriously prejudicial to the rights and interests of the plaintiffs as individual occupants of the flats directly in front of the said unauthorised construction and also as regards the plaintiffs' rights as members of the said Society, which owns the said land/property. The plaintiffs have given different reasons due to which it is alleged that the actions of defendants no. 1 and 2 are absolutely illegal, void , null and bad in law. These are mentioned in para no. 15 of the plaint. One of the reason is that the said construction infringes upon the right of privacy of the plaintiffs and the entrance to the said construction/temple is less than 15 feet away from the entrance door to the flat of the plaintiffs. Other reason is that the said construction shall result in huge noise and sound pollution resulting from the usages of loud speaker/music instrument, kirtans and other religious programmes etc in the proposed temple. Yet another reason is that the said unauthorised construction shall be a threat to the security of the plaintiffs and other members of the Society. Other reason is that the said unauthorised construction in the form of temple shall ultimately be utilized for religious­cum­commercial activities which shall disturb the peace and tranquility of the Society. It is further mentioned that in case the defendants no. 1 and 2 are permitted to Contd.....

continue with their illegal activity, it shall cause irreparable loss and injury to the plaintiffs for which there is no re­compense available. It is further mentioned that the defendant no. 3 is not inclined to take positive action in the matter for the reasons best known to them and despite their categorical and published stand as per their earlier notification/resolution passed in the meeting of the Management Committee held on 2.1.1994. In plaint it is mentioned that no relief is claimed against the defendant no. 3.

6. It is further mentioned that under the Delhi Municipal Corporation Act, 1958 (As amended) and also the building bye­laws framed thereunder, both the defendants no. 4 and 5 are fully authorised and empowered to take immediate action in the matter and stop the illegal construction raised by the defendants no. 1 and 2 and their accomplices/agents and further to demolish the said illegal construction. It is further mentioned that the said defendants are also liable to be directed by way of mandatory injunction to act as prayed in the matter. It is further mentioned that the plaintiffs do not have any other alternative efficacious remedy in the matter. It is further mentioned that illegal threats and criminal intimidation done by the Contd.....

defendants no. 1 and 2 and their accomplices/goondas to the family of the plaintiff no. 1 has resulted in serious ill health of the wife of the plaintiff no. 1 and consequent inconvenience, monetary expenditure, tension and loss occasioned thereby has caused grave damage to the said plaintiff no. 1 for which the plaintiff reserves his right to take appropriate legal action including compensation for damages suffered etc. against the defendants no. 1 and 2, at a later stage.

7. With this background the plaintiffs have filed the present suit and have prayed for a decree of Permanent Injunction in their favour and against the defendants no. 1 and 2 thereby restraining the said defendants, their agents etc. from raising any construction at, upon, above and around the underground water reservoir and pump­ house as shown in red in the site plan .

8. That plaintiffs have also prayed for a decree of Mandatory Injunction against the defendants no. 4 and 5 thereby directing the said authorities, their officers, staff etc. to demolish the illegal and unauthorised construction made by said defendants no. 1 and 2 over the underground water tank in a part of Plot No. 43, Sector­13, Rohini, Contd.....

Delhi­110085 and further to take appropriate legal/statutory action against the said defendants in accordance with law.

9. Defendants no. 1 and 2 have filed their written statement jointly in which some preliminary objections have been taken. It is mentioned in the WS that the present suit is bad for non­joinder of necessary party and further mentioned that other members of the Managing Committee of the temple in the Society are also necessary parties to the present suit because the temple has been raised by all the members collectively and not by the defendants no. 1 and 2 alone. It is further mentioned that the suit is barred under the provisions of section 91 and 92 of the Delhi Cooperative Societies Act, 1972 and the Rules framed thereunder. It is further mentioned that no notice under the provisions of Delhi Cooperative Society Act, 1972 has been served upon the Registrar Cooperative Society, Delhi.

10. It is further mentioned that the plaintiffs have not approached the court with clean hands. It is mentioned that the plaintiffs were also present in the meeting of the temple committee of which the plaintiffs are also members and consented to the raising of Contd.....

the temple at the place it exists now subject to the objections of the plaintiffs that the penalty may be imposed for raising construction of the temple by the Municipal Corporation of Delhi. It is further mentioned that even otherwise no suit can be maintained because there is no unauthorised construction and whatever has been constructed is not at all construction in the eyes of law and even otherwise the said construction raised for a temple is compoundable. It is further mentioned that the construction in the Society is still continuing and the entire construction has not been completed and after the completion of the construction the Society will apply for grant of completion certificate and at that time the Municipal Corporation of Delhi i.e. defendant no. 4 would inform the Society regarding the deviation in the construction and which of the deviations are compoundable and which are non­compoundable and it is further mentioned that as the construction raised on the water tank for the purposes of temple is compoundable, therefore, the same would be regularised on payment of penalty which will be paid by the temple committee comprising of the members of the society. In reply on merits it is mentioned in written statement that for construction of religious place or temple no sanction is granted under any provisions Contd.....

of DMC Act. It is further mentioned in the WS that all the members of the Society present at the meeting decided that the temple should be constructed for the purpose of worship by the members of the Society so that the members would not have to go out for the purpose of worship at other place and in the said meeting the plaintiffs were also present and did not object to the raising of the temple. In written statement it is denied that the defendants no. 1 and 2 alongwith some others have encroached upon the open platform above the underground water reservoir and the fire fighting tank built within the premises of the Society with an intent to construct a temple thereupon. It is also denied that the defendants have raised illegal construction in the portion shown in red in the site plan by raising pillars and placing Asbestos sheets' roofing thereupon. It is further mentioned that no pillars have been raised and the Asbestos sheets cemented sheets have been put on the iron pipes and no permanent construction of the pillars has been raised on the spot. It is further mentioned in written statement that the construction has been raised of temple and not of commercial shops and there is no intention of any of the members of the Society to raise any commercial shops and with that keeping in view, no entrance has been kept from the boundary wall because the Contd.....

temple constructed where it exists is only for private worship of all the members of the Society and not for public worship. It is further denied that the entrance to the said temple is directly opposite to the entrance and staircase leading to the flats of the plaintiffs and at a bare distance of less than 15 ft. It is further denied that earlier the defendants no. 1 and 2 were using the vacant portion of flat no. 28A for the purpose of religious ceremony for the past four years. It is further mentioned that the defendants no. 1 and 2 never approached the plaintiffs and whatever has been decided, it was in the General Body Meeting of the members of the Society called for the purpose of raising of the temple and no personal talk ever took place between the plaintiffs and the defendants no. 1 and 2. It is further mentioned that the construction was raised by the members of the Society by raising voluntary funds and not by the defendants no. 1 and 2. It is further mentioned that the defendants no. 1 and 2 have no knowledge of the issuance of any notification dated 30.4.1997. It is further mentioned in written statement that in fact all the members of the Society unanimously wanted to raise construction of the temple and there was no question of any action being taken by the defendant no. 3 against its own members who form the defendant no. 3. It is further Contd.....

mentioned in para 16 of the written statement that the temple has been raised by the joint funds of all the members of the Society and as such no restraint order can be passed against the defendants no. 1 and 2 alone, however, the defendants no. 1 and 2 have no intention to raise any construction except what has been raised. It is further mentioned that the interest of the plaintiffs cannot clash with the interest of the other 148 members of the Society as in all there are 150 members of the Society. Defendants no. 1 and 2 have prayed for dismissal of the suit.

11. The plaintiffs have also filed replication w.r.t. written statement of defendants no. 1 and 2 in which it is mentioned that as a matter of fact the plaintiffs are not the members of any temple committee. It is further mentioned that the plaintiffs were not present at any meeting held on 24.3.1997 or otherwise concurred with the contents/minutes thereof. It is further mentioned that the plaintiffs put their objections and signed the note under mob coercion by the defendants no. 1 and 2 subsequently on 13.4.1997. It is further mentioned that the original of the said note/document is in custody of defendants no. 1 and 2 and said defendants had supplied the Contd.....

photocopy to the plaintiffs' upon their demand at the relevant time. It is further mentioned that the defendants have raised unauthorised construction by making pucca brick wall. It is further mentioned that all the members of the Society have not agreed/consented to the said unauthorised construction. It is further mentioned in the replication that the plaintiffs have never consented to the construction of unauthorised temple and especially at the space now encroached upon by the defendants no. 1 and 2.

12. The defendant no. 3 has filed written statement in which it is mentioned that it is correct that in the initial sanction/lay out plan there is no specific demarcation regarding construction of any temple/ religious place therein. It is further mentioned that it is also correct that the defendants no. 1and 2 alongwith some others are making some construction in the Society land and plot in the form of temple over the underground water reservoir located in the Society plan. It is also mentioned that present Managing Committee of the Society was duly elected on 9.2.1997, however, no effective charge pertaining to the books/records/layout plan of the Society were handed over to the present Managing Committee by the outgoing Managing Committee Contd.....

in which the defendant no. 2 was Secretary despite requests in this regard. It is also mentioned that it is correct and is admitted that in case there is no sanction plan/revised plan from the concerned authorities for the construction of the temple, the said construction shall tantamount to the unauthorised construction and shall be prejudicial to the interest of the individual members of the Society. It is also mentioned that it is correct that said construction is very near to the flats of the plaintiffs. It is further mentioned that the said construction/structure in the shape of the temple etc. has come up very recently after 9.5.1997 and contrary to the notification dated 30.4.1997 issued by the President of the defendant no. 3 Society directing that no one except the Society is authorised to make any construction over the Society land and plot. It is also admitted by the defendant no. 3 that letter dated 19.4.1997 was received from the plaintiffs regarding the said construction and it is further mentioned that the defendant no. 3 through its President duly got issued a notification dated 30.4.1997 for general intimation to all the members clearly warning that no one should indulge in construction activity except the Society on the land/property belonging to the Society. It is further mentioned that it appears that the subject construction done by Contd.....

the defendants no. 1 and 2 is neither legal nor authorised. It is further mentioned that the defendants no. 1 and 2 alongwith their supporters did start the construction above the underground water reservoir without obtaining any formal approval or sanction. It is admitted by defendant no. 3 that the defendant no. 3 had issued the notification dated 30.4.1997 as well as letter dated 5.5.1997 in order to safeguard and protect the interests of the members as well as the Society in general. It is further mentioned in para 14 of the written statement of defendant no. 3 that the Show Cause Notice dated 17.7.1997 was received by the defendant no. 3 through its Secretary from the defendant no. 4 MCD regarding the said unauthorised construction in the society premises. It is further mentioned that to the knowledge of the answering defendant no. 3, during the term of the present Managing Committee, no sanction or approval has been sought/ received from the concerned authorities till date regarding said construction over the underground water reservoir. It is further mentioned that the notification dated 30.4.1997 is correct, valid and binding on all the members and the resolution dated 2.1.1994 passed by the previous Managing Committee of the Society is also correct, valid and binding. It is further mentioned in para 15 of the written Contd.....

statement that it is correct that the said construction/temple is very near to the entrance door of the flat of the plaintiff. Defendant no. 3 has prayed for dismissal of the present suit against the defendant no. 3.

13. Plaintiff has filed replication w.r.t. the written statement of defendant no. 3 and has reaffirmed and reiterated the allegations as mentioned in the plaint. In replication it is also mentioned in para no. 14 that issuance of Show Cause Notice u/s 344(1) of the DMC Act dated 17.7.1997 is not denied. It is further mentioned that as a matter of fact even demolition order dated 1.8.1997 has been passed pursuant to the said Show Cause Notice, as disclosed by defendant no. 4 i.e. MCD.

14. Defendant no. 4 has also filed written statement in which it is mentioned that in fact the site was inspected by the concerned officer and it was found that unauthorised construction of a tin shed for Mandir at the ground floor was in existence and accordingly the unauthorised construction was booked vide file No. 196/B/UC/RZ­ B/97 on 17.7.1997 and thereafter the defendant no. 3 was served with the Show Cause Notice dated 17.7.1997. It is further mentioned that Contd.....

the Secretary, Dhruv Apartments did not give any reply to the said Show Cause Notice and as such the demolition orders were passed for the demolition of the unauthorised construction of shed of Mandir. It is further mentioned that the demolition orders were passed on 1.8.1997. It is further mentioned that the answering defendant i.e. MCD has taken each and every step against the said unauthorised construction as provided under the DMC Act and at no point of time, anyone has been permitted to do unauthorised construction. It is further mentioned that the answering defendant has initiated the requisite action against the defendant no. 3 for the unauthorised construction as per the provisions of DMC Act and further undertakes to take action as per the orders of this court. Defendant no. 4 i.e. MCD has prayed for dismissal of the suit qua MCD.

15. Plaintiff has also filed replication w.r.t. the written statement of defendant no. 4.

16. On the basis of the pleadings of the parties, the following issues were framed on 10.10.2005:­ (1). Whether the suit of the plaintiff is barred under section 91 Contd.....

& 92 of Delhi Co­operative Society Act, 1972? If so, its effect? OPD (2). Whether the suit of the plaintiff is bad for non­joinder and mis­joinder of the parties as alleged by the defendants? OPD (3). Whether the suit of the plaintiff is not maintainable in view of the section 477/478 of the DMC Act? OPD (4). Whether the plaintiff is entitled to the decree for permanent injunction as prayed for in the plaint? OPP (5). Relief.

Further, on 21.8.2010 an additional issue was framed as follows:­ Issue No.­(6). Whether the plaintiff is entitled for a decree of Mandatory Injunction as prayed for? Onus on parties.

17. I have already heard final arguments and perused the material on record.

18. Now I shall give my issue­wise findings which are as under:­ Contd.....

Issue No. 1:­ The objection w.r.t. the Section 91 and 92 of the Delhi Co­operative Societies Act, 1972 was raised by the defendants no. 1 and 2 in the written statement. It is further mentioned in said written statement that no notice under the provisions of the Delhi Co­ operative Society Act, 1972 was served upon the Registrar of Cooperative Society, Delhi and without notice being served for not less than three months, no suit can be maintained against the defendant no. 3. During the course of the arguments the counsel for the plaintiffs argued that said provisions are not applicable to the facts of this case. Section 91 of the said Act refers that Companies Act shall not apply to the Cooperative Societies. Section 92 refers "Saving of existing societies". It seems that the defendants no. 1 and 2 wanted to raise the objection regarding section 90 of the above Act. Section 90 of The Delhi Co­operative Societies Act, 1972 reads as under:­ Section 90. Notice necessary in suits.

No suit shall be instituted against a co­operative society or any of its officers in respect of any act touching the business of the society until the expiration of three months next after notice in writing has been delivered to the Registrar or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims, and the plaint Contd.....

shall contain a statement that such notice has been so delivered or left.

Said provision is applicable w.r.t. any act touching the business of the Society. The dispute in question in this case is not touching the business of the Co­operative Society. This a suit for injunction. The raising of construction i.e. the alleged unauthorised construction of temple in the Society premises is not an act touching the business of the Society. Hence, the present suit is not hit by the provisions of Section 90 or the other provisions as mentioned above as alleged by the defendants. Hence, this issue is decided in favour of the plaintiffs and against the defendants.

19. Issue No. 2:­ The onus to prove this issue was upon the defendants. The plea of the defendants was that the other members of the Managing Committee of the temple in the Society are also necessary parties to the present suit because the temple had been raised by all the members collectively and not by the defendants no. 1 and 2 alone. It is not disputed on behalf of the defendants that the defendants no. 1 and 2 have raised the alleged construction. In written statement it is also mentioned by the defendants no. 1 and 2 that there Contd.....

are 150 members of the Society including the plaintiffs. The defendant no. 3 is the Society which is made a party in this case. The main allegations are against the defendants no. 1 and 2. The detailed facts of the case have already been highlighted above while discussing the pleadings. The nature of the present case is not such that all the 150 members are necessary to be impleaded as defendants. The defendants who have been impleaded in this case are necessary and proper party. No other person was required to be impleaded in this case and, moreover, defendant no. 4 and 5 are also proper and necessary parties in this case. None of the defendants has been misjoined as party in this case. None of the defendants was to be deleted in this case from the array of the parties. Hence, the present suit is neither bad for non­joinder of the parties nor for mis­joinder of the parties as alleged by the defendants. Hence, the present issue is also decided in faovur of the plaintiffs and against the defendants.

20. Issue No. 3:­Onus to prove this issue was upon the defendants. I have perused the relevant provisions of law. For ready reference the provisions of Section 477 and 478 of The Delhi Contd.....

Municipal Corporation Act, 1957 are reproduced hereunder:­ Section 477:­ Protection of action of [a Corporation], etc. No suit or prosecution shall be entertained in any court against [a Corporation] or against any municipal authority or against a municipal officer or other municipal employee or against any person acting under the order or direction of any municipal authority or any municipal officer or other municipal employee, for anything which is in good faith done or intended to be done, under this Act or any rule, regulation or bye­law made thereunder.

Section 478:­Notice to be given of suits (1). No suit shall be instituted against [a Corporation] or against any municipal authority or against any municipal officer or other municipal employee or against any person acting under the order or direction of any municipal authority or any municipal officer or other municipal employee, in respect of any act done, or purporting to have been done, in pursuance of this Act or any rule, regulation or bye­law made thereunder until the expiration of two months after notice in writing has been left at the municipal office, and, in the case of such officer, employee or person, unless notice in Contd.....

writing has also been delivered to him or left at his office or place of residence, and unless such notice states explicitly the cause of action, the nature of the relief sought, the amount of compensation claimed, and the name and place of residence of the intending plaintiff, and unless the plaint contains a statement that such notice has been so left or delivered.

(2). No suit, such as is described in sub­section (1), shall unless it is a suit for the recovery of immovable property or for a declaration of title thereto, be instituted after the expiry of six months from the date on which the cause of action arises.

(3). Nothing in sub­section (1) shall be deemed to apply to a suit in which the only relief claimed is an injunction of which the object would be defeated by the giving of the notice or the postponement of the institution of the suit.

21. The present suit is w.r.t. the alleged illegal construction of temple. The defendant no. 4 is MCD in this case. This is a suit for Permanent and Mandatory Injunction only. The relief of Permanent Injunction is only against the defendants no. 1 and 2 and relief of Mandatory Injunction is against the defendants no. 4 and 5 wherein the plaintiff has sought direction against the defendants no. 4 and 5 to demolish the illegal and unauthorised construction made by the Contd.....

defendants no. 1 and 2 in the premises in question and further to take appropriate legal/statutory action against said defendants in accordance with law. From the facts of the case as already discussed above in detail and from the prayer clause itself it is clear that the alleged construction has been raised by the defendants no. 1 and 2. The relief against the defendant no. 4 i.e. MCD is to demolish the said construction and to take appropriate action as per law. The present suit is not against the MCD (i.e. a corporation) for anything which is done not in good faith or intended to be so done by it. Hence, the provisions of Section 477 of the abovesaid Act are not applicable to the facts of this case. Now the provisions of Section 478 of the abovesaid Act are to be analysed. Sub­Section (1) of the Section 478 talks about two months notice in writing prior to institution of the suit. Sub­Section (3) of the Section 478 is relevant. The present suit is only for the relief of Injunction i.e. for Permanent and Mandatory Injunction. The provisions of sub­section (1) of Section 478 are not applicable in the present suit as the only relief claimed in this suit is for injunction and sub­section (3) is attracted to the facts of this case and consequently no notice is required as mentioned in sub­section (1) of Section 478. Moreover, in written statement of defendant no. 4 i.e. Contd.....

MCD it is mentioned that in fact the MCD has inspected the site and it was found that unauthorised construction of tin shed for Mandir at Ground Floor was in existence and, accordingly, the unauthorised construction was booked on 17.7.1997 and the demolition orders were passed on 1.8.1997 regarding the unauthorised construction of shed of Mandir. It is further pertinent to mention here that in para 14 of the plaint it is mentioned that the plaintiff received only a copy of letter dated 14.7.1997 bearing no. PSC/1131/97 from the office of the Commissioner of MCD, Delhi and addressed to Deputy Municipal Commissioner, Delhi, forwarding his earlier complaint in the matter and instructions for stoppage of construction and removal of portion constructed. In corresponding para 14 of written statement of defendant no. 4 i.e. MCD it is mentioned that para no. 14 is matter of record. The copy of the above mentioned letter dated 14.7.1997 is on record. In view of above detailed facts and circumstances and the relevant provisions of law as discussed above it is clear that the MCD was already having prior notice of the facts involved in this case. The demolition order has already been passed by MCD as mentioned in written statement of MCD. Even otherwise the notice was not required in this case in the light of the provisions of Section 478(3) of DMC Contd.....

Act, 1957 as discussed above since the object of the case would have been defeated by giving of the notice since this is a suit in which the only relief claimed is an injunction. Hence, the present suit is maintainable. Accordingly, the present issue is decided against the defendants and in favour of the plaintiffs.

22. Issue No. 4 & Issue No. 6:­Now I shall take up issue no. 4 regarding permanent injunction and additional issue no. 6 regarding mandatory injunction together. These two issues are interlinked, therefore, taken up together. In this case the defendant's evidence was led first and the plaintiff's evidence was led subsequently. The defendant no. 1 Shri P.N. Luthra examined himself as DW­1 and has filed his evidence by way of affidavit which is Ex. D­1. In cross examination he stated that the Mandir Committee as stated in his affidavit is not a registered body. He further stated that no building plan was got sanctioned from MCD prior to raising of the construction of the temple. He admitted that he is the President of defendant no. 3 Society presently and also admitted that in the original sanctioned building plan of the Society, there is no provision for construction of Contd.....

any temple. He also deposed that he do not remember whether the revised sanctioned building plan of the society was approved thereby making the provision for construction of temple in the Society. He volunteered that MCD has passed resolution for construction of temple in the Societies. A court question was put to him that whether the revised sanctioned building plan of the society was approved after passing of the abovesaid resolution by MCD. The answer given by the witness was that no such intimation was received by the Society. This witness admitted that he is aware that prior to raising of any construction within the MCD limits and also prior to making any major deviations from the existing sanctioned building plan, prior approval of MCD is duly required by any person.

23. This witness was confronted with the letter dated 2.5.1997 addressed to the Secretary of the defendant no. 3 Society. The witness admitted his signatures at Point A on this document. The said letter dated 2.5.1997 is Ex. DW­1/P1. The said letter is w.r.t. the construction of the Mandir in the Society. In this letter it is mentioned that place of construction of the said temple has been approved near the entrance gate and pump house in the Society and the construction Contd.....

of the Mandir is scheduled to start from 9.5.1997. In this letter it is prayed that an urgent Management Committee Meeting of the Society be called and a formal approval of the site for the construction of temple be obtained. This witness admitted in the cross examination that no written permission in response to said letter dated 2.5.1997 was received from defendant no. 3 Society. DW­1 further deposed in cross examination that he has brought only the minutes pertaining to the meeting held on 24.3.1997 by the Temple Committee which was duly signed by the plaintiff no. 1 at Point A. The copy of the same is Ex. DW­1/P2 (OSR). He further deposed that no resolution in consonance with the resolution dated 24.3.1997 was passed by the defendant no. 3 Society separately. He admitted that the date on which plaintiff no. 1 signed Ex. DW­1/P2 at Point A is 13.4.1997. The said document is on record. There is also hand written note appended over the signatures above the Point A which reads as "please seek approval from appropriate authority to avoid any penalty on common members". It is further admitted that some other signatories have also signed Ex. DW­1/P2 on the dates subsequent to 24.3.1997. He also admitted that nothing has been mentioned on Ex. DW­1/P2 signifying the closure of the minutes of the meeting dated Contd.....

24.3.1997. I have perused the same. The signatures appearing are up to serial no. 79. Serial no. 80 and 81 are also mentioned but there is no corresponding entry against them. Witness admitted that Ex. DW­1/P2 has double entries at serial no. 12­13, 21­22, 23­24 and 14­29 which has been signed by the two family members of the same flats. He also admitted that against the entries no. 35 to 38, it is only the plaintiff no. 1 who had put his signatures. The plaintiff has also filed the copy of the minutes on 28.9.1999. The same is Ex. DW­1/P3. This is regarding the minutes dated 24.3.1997. In the said minutes the signatures are appearing only up to serial no. 66 and it shows the serial no. up to 76. There is no entry against the serial no. 67 to 76. The witness was also confronted with Ex. DW­1/P2 and Ex. DW­1/P3 and after comparing both, the witness stated that the signatures in Ex. DW­1/P2 from serial no. 66 onwards might have been taken later on. He further deposed that the idols are placed on a platform which is approx. 4 feet in height and the platform is made of cement, bricks and marble stone. Site plan filed by the plaintiff is Ex. DW­1/P4. Witness deposed that the platform referred by him is existing between Point B and C and the covered temple shed is denoted by points BCED in the said site plan Ex. DW­1/P4. Witness admitted that there Contd.....

is a pucca wall constructed between Point E & F in the said site plan and admitted that Shiv Parivar in the temple as shown at Point A in Ex. DW­1/P4 is also constructed pucca with cement and marble. He also admitted that there is a full pucca wall constructed at point B to C, behind the platform in Ex. DW­1/P4. He deposed that said wall may be approx. 18 feet in length and 10 feet in height. He admitted that there are three pucca bricks' supporting walls behind the wall mentioned at point B to C and the same are shown respectively at points GH, IJ and KL in the site plan Ex. DW­1/P4. He also deposed that a Pujari has been employed in temple on regular basis and in the temple, pooja/archana is done on daily basis and other religious ceremonies and festivals i.e. Shivratri, Janamashtami, Ram Navami etc. are performed and celebrated and Navratras are also celebrated twice in a calender year. He also admitted that the ladies' kirtan on every Tuesday is organised in the said temple. He deposed that only Dholak and Khartal are used while performing the ceremonies in temple. He admitted that they do not restrict outsiders from visiting the temple and admitted that the temple is open for worship by all Hindus. Witness admitted that Ex. DW­1/P4 is correctly depicting the situation of the house of the plaintiff no. 1 at Point X. Ex. DW­1/P4 is Contd.....

the site plan. The witness also deposed that he has no knowledge if the site at which the temple was to be constructed has still not been approved by the Society. The witness was confronted with the copy of the notice dated 21.9.2009 issued by the Society and after seeing the document the witness has shown his inability to admit or deny the same. The said notice is Mark C. I have perused the same. As per the said notice of defendant no. 3 Society, the General Body Meeting of the members of the society has been scheduled for 11.10.2009 and there are six agendas mentioned in it and agenda no. 4 is "to approve the location and building plan of the society Mandir". The witness deposed that the portion from X to X1 in para no. 1 of his affidavit has been stated on the basis of information received by him from the residents of the Society who have visited the office of MCD and were told that the same could be regularised on the payment of certain charges. He deposed that it was told to him by Shri K.C. Chadha. Defendants have not examined Shri K.C. Chadha as witness. In the said portion X to X1 it is mentioned that the construction raised on the water tank for the purpose of temple is compoundable. This witness was also cross examined by counsel for MCD wherein the witness stated that he do not possess any sanctioned building plan from MCD Contd.....

w.r.t. the Mandir in question. He admitted that Mandir has been booked vide file no. 196/B/UC/RZB/97 on 17.9.1997 by the MCD.

24. Defendant no. 2 Shri S.B. Singhal examined himself as DW­2 and filed his evidence by way of affidavit which is Ex. DW­2/A. DW­2 stated in his cross examination that neither any sanction nor any approval of any Government body including MCD and DDA was obtained prior to the construction of the temple in the Society and he do not know if the temple has been booked by MCD as unauthorised construction. He admitted that no resolution in writing was passed by Managing Committee of the Society in March, 1997 or thereafter for the construction of the temple and also admitted that no revised building plan of the Society has been approved by MCD after the construction of the temple. He stated that he knows that prior approval/sanction of the concerned authority has to be obtained for making the construction in the Society. He further deposed that there are 150 members of the Society and the consent/approval of all the 150 members of the Society for the construction of the temple was not obtained. He admitted that the deposition that all the members of the Society had collectively constructed the temple, made in para no. 1 of Contd.....

the affidavit is incorrect. He deposed that meeting of Temple Committee took place on Holi in the year 1997 and stated that said meeting was attended by around 60 members of the Society and no notice or intimation or agenda of the above meeting was sent to the members of the Society and the said meeting was not called by the defendant no. 3 society. He denied the suggestion that plaintiffs had not attended any meeting of Temple Committee in the year 1997. He volunteered that the plaintiffs were present in the meeting but the minutes were signed by them after about 10 to 12 days. He stated that he do not know who obtained the signatures of the plaintiffs on minutes of the said meeting and further deposed that he had not gone to the house of the plaintiffs for obtaining their signatures. He admitted that he cannot identify the signatures of the plaintiffs on the minutes book of the Temple Committee regarding the approval of the construction of the temple. Witness was confronted with the last two lines of the para no. 1 of his affidavit and the witness admitted those lines to be correct. In those lines it is mentioned that the plaintiff no. 1 made some observations while giving consent for raising the construction of the temple. Witness stated that with reference to the deposition made in the above two lines, Shri K.C. Chadha, who was Contd.....

the member of the Temple Committee, told him that the plaintiff no. 1 had put his signatures against his flat no. in the minutes of the Temple Committee as a token for his approval. He stated that Shri K.C. Chadha is alive and is residing in the Society. He admitted that the plaintiffs were not the members of the Temple Committee. It is to be noted again that Shri K.C. Chadha has not been examined as witness in this case by the defendants. This witness was also confronted with one notice dated 20.10.2009 issued by Returning Officer of the Delhi Pradesh CGHS Ltd. thereby debarring the members of the Managing Committee including this witness. Witness admitted the same. Said notice is Ex. DW­2/P1. Witness admitted that notice Ex. DW­2/P1 was never challenged by him. As per the said notice, amongst others, Shri S.B. Singhal i.e. the present witness was also disqualified to contest the election as the audit of the Society has not been conducted since 1.4.2003 till date. The witness deposed that Ex. DW­1/P4 shows the correct location of the temple bounded as BDEC. He admitted that as per the sanctioned plan, the portion where the supporting wall have been constructed was to be kept open as it was green belt area. He admitted that the construction over the said portion as well as the temple are unauthorised and against the sanctioned plan. This is Contd.....

categorical admission on the part of the defendant regarding the fact of unauthorised construction in question. He also admitted that underground water tank shown in the red colour in the site plan Ex. DW­1/P4 is meant for the said purpose and cannot be used for any other purpose contrary to the sanctioned plan. He admitted that Dholak, Chaina and Khartal are also used for performing various ceremonies and pooja in the temple. He admitted that outsiders also visit the temple in the Society. The witness was also confronted with the minutes of the defendant no. 3 Society dated 2.1.1994. Document is Ex. DW­2/P2. Witness admitted his signatures on this document at Points A and B. In the said document Ex. DW­2/P2 it is also mentioned that "Mr. Satish Kapoor, President, explained that no permission was taken for construction of temple in the Society either from the Managing Committee or from any other Government organisation. Before construction of the temple, sanction of map and location should be taken from the Managing Committee to avoid any legal complication at a later stage". Witness stated that he do not remember if he was Secretary of Managing Committee of defendant no. 3 Society on 2.1.1994, however, the witness specified his date of birth, his date of joining services and his date of marriage from his Contd.....

memory. In further cross examination DW­2 deposed that plaintiff's flat is correctly shown at Point X in site plan Ex. DW­1/P4. Witness stated that the photographs exhibited as Ex. DW­1/P5 to Ex. DW­1/P11 are of temple in question at present. He admitted that all the members of the Society have not consented for the construction of the temple and volunteered that majority of the members have consented. He also admitted that the plaintiffs are not the members of the Mandir Committee. The document Mark C was subsequently exhibited as Ex. DW­2/P5. It is dated 21.9.2009. Witness admitted that one of the point of the agenda notice dated 21.9.2009 was regarding consideration of approval of location and building plan of the Mandir in question. He also admitted that holding of GBM dated 11.10.2009 was objected in writing by the plaintiff. He stated that a Committee as mentioned in his affidavit was constituted for analyising the technical aspects involved in the issue for satisfaction of the General Body as there is one underground water tank adjoining the Mandir. He further deposed that one report was filed by the above referred Committee. He volunteered that the said report was rejected by the Mandir Committee. He also stated that the minutes of the General Body Meeting dated 11.10.2009 were recorded on the same Contd.....

day and the same time by the Secretary Shri V.K. Dhingra. He further stated that the new committee was constituted probably in February, 2010. He denied the suggestion that the said minutes have been subsequently manipulated/prepared to suit their interest in the case. One of the agenda as per the minutes dated 11.10.2009 was "to approve the location and building plan of the society Mandir". During the course of arguments the counsel for the plaintiffs argued that in the said minutes dated 11.10.2009 there are some manipulations. He submitted that the phrase i.e. "location will not change. Shri O.P. Sharma S­8 and Dev Sharma S­2 will submit report to Mandir Committee" has been inserted subsequently. From the bare perusal of the said minutes it can be said that it might be possible that the said insertions have been done since there is sufficient spacing between the two paragraphs of the said minutes and after the abovesaid phrase which ends one para, there is not enough space between the end of the phrase and the subsequent paragraph, in tune with the spacing between the other paragraphs. The witness also admitted that agenda notice Ex. DW­2/P5 did not contain any item for discussion regarding technical feasibility of the Mandir. Witness further stated that he is aware of the fact that the report given by the Committee constituted in Contd.....

the GBM dated 11.10.2009 was subsequently rejected by Mandir Committee as he is a member of the Mandir Committee. He further deposed that no acceptance or rejection has been made by the defendant no. 3 society regarding the report submitted by the above mentioned Committee. He further deposed that it is correct that they had not sent minutes of the GBM dated 11.10.2009 to the plaintiff either by registered post or otherwise. He also admitted that minutes of the meeting and the minute book filed on record do not contain serial no. and paging. He also deposed that it is not mandatory to get the minutes of GBM confirmed in the subsequent GBM. He also deposed that he do not know whether Shri Dev Sharma and O.P. Sharma are qualified Engineers or not. He further stated that the minutes of the GBM dated 11.10.2009 were not published on the Notice Board of the Society at the relevant time. He also deposed that he do not know whether the Fire Department has also raised objections about the proposed construction of Mandir. This witness was also cross examined by counsel for the defendant no. 4 i.e. MCD wherein the witness stated that presently he is not holding any post in the defendant no. 3 society and he remained President of the Society during the year 2008­09. He admitted that there is no sanctioned Contd.....

building plan with regard to the Mandir in question. He stated that he do not know whether the said Mandir has been booked by the MCD on 17.7.1997 vide file no. 196/B/UC/RZB/97. Witness stated in the cross examination that he cannot admit or deny that the temporary structure/Mandir in question is illegal and contrary to the DMC law.

25. D4W1 Shri Jagpal Singh, Executive Engineer, Building­II, Rohini Zone, MCD, Delhi was also examined on behalf of the defendant no. 4 i.e. MCD. He filed his evidence by way of affidavit which is Ex. D4W1/A. In cross examination conducted by the defendants no. 1 and 2 the said witness stated that it is correct that neither he has booked the construction nor he was in the office at the time of booking. He was also cross examined on behalf of the plaintiff wherein he deposed that it is correct that the construction/ structure in the shape of the Mandir is unauthorised and not compoundable. He also deposed that he has no knowledge whether any notice dated 5.5.1997 had been served upon the defendant no. 4 MCD by the plaintiff through his Advocate, prior to the filing of the suit and further deposed that he has no knowledge whether several other complaints regarding unauthorised construction in the defendant Contd.....

no. 3 Society raised by the defendants no. 1 and 2, were made by the plaintiff to the MCD. He volunteered that the record is not traceable. He stated that he cannot admit or deny whether any letter bearing no. PSC/1131/97 dated 14.7.1997 was written by the Commissioner MCD to the Deputy Municipal Commissioner, Rohini and copy to the plaintiff. The copy of one legal notice dated 5.5.1997 issued under the instructions of the plaintiff and addressed to the Secretary/President of the Delhi Pradesh Cooperative Group Housing Society Ltd. is on record which is Ex. PW­1/14 and its copy has been sent to the various departments including the Commissioner, MCD, Town Hall, Delhi. Various original registered postal receipts and all dated 6.5.1997 are on record and one such postal receipt is addressed to the Commissioner, Municipal Corporation of Delhi. It is Ex. PW­1/17.

The witness admitted that inspite of passing of demolition order, MCD has not taken any demolition action so far at the site. He further deposed that he cannot admit or deny whether the unauthorised structure in the shape of temple existing within a residential society tantamounts to change of land use and MCD has no technical power to grant any change in land use within the NCT of Delhi. He admitted that the unauthorised structure in question is liable to be demolished Contd.....

and the witness again stated that the said structure cannot be demolished in view of the provisions of The NCT of Delhi Laws (Special Provisions)Second Act, 2011 up to December, 2014.

26. Plaintiff Shri N.C. Jain has examined himself as PW­1 and has filed his evidence by way of affidavit which is Ex. PW­1/A. Plaintiff has also relied upon various documents in support of his case which are also exhibited. In cross examination PW­1 has stated that there is a distance of 15 feet to 16 feet between his flat and the temple. He further stated that he came to know about the proposed construction of the temple on 13.4.1997 when Mr. P.N. Luthra , Mr. S.B. Singhal and some other persons approached him at his flat. He denied the suggestion that defendants no. 1 and 2 have not raised any unauthorised construction and are not liable for any action for the same. Counsel for the defendant no. 4 i.e. MCD has also cross examined him wherein the witness stated that he is aware that the unauthorised construction in dispute has been booked by the MCD and further stated that he had given various letters and notices to the MCD before filing of the present suit. No suggestion was given on behalf of MCD that no such letters and notice were given to MCD Contd.....

before filing the present suit.

27. PW­2 Shri Manoj Kumar was examined on behalf of the plaintiff. He was a Draftsman, (Building) Head Quarter, North Delhi Municipal Corporation. He brought the summoned record and deposed that copies of three sanctioned building plans (issued under RTI Act) are Ex. PW­2/A, Ex. PW­2/B and Ex. PW­2/C which are correct as per record brought by him. The counsel for the defendants did not cross examine this witness and cross examination of this witness was nil despite opportunity given.

28. PW­3 Shri Om Prakash Sharma was also a summoned witness. He deposed that he and Shri Dev Sharma were requested by the Managing Committee of the defendant no. 3 Society to give suggestions and submit report with regard to construction of the Mandir within the Society so as to remove the dispute/obstacles thereto. He was resident of Dhruv Apartments, Sector­13, Rohini, Delhi. He stated that they had jointly submitted a report giving their suggestions with regard to the location and construction of the Mandir vide report which is already Ex. PW­2/P6 (during arguments the Contd.....

counsel for the plaintiff submitted that inadvertently the exhibit number has been typed as Ex. PW­2/P6 instead of Ex. DW­2/P6). I have perused the record. The said report is in fact exhibited as Ex. DW­2/P6. This witness stated that it bears his signatures at Point A and the signatures of Mr. Dev Sharma are at Point B which he identifies. Witness deposed that he is neither an Architect nor an Engineer nor even technically qualified in construction, however, as a bonafide and sincere citizen and the resident of the Society, he and Dev Sharma were assigned the abovesaid task. He further deposed that after submission of report, the Managing Committee of the defendant no. 3 did not call them for any further discussion. He was cross examined by counsel for the defendant no. 1 and 2 wherein he stated that all the residents were called in the meeting of the Society as per the notice pasted on the notice board of the Society by the Managing Committee. He admitted that he is not the member of defendant no. 3 because he is Power of Attorney holder. He also deposed in cross examination that Mandir was already constructed when the matter was referred to them. He also stated that he did not obtain any receipt of the submission of report Ex. DW­2/P6 to the Managing Committee of defendant no. 3 and denied the suggestion Contd.....

that he never submitted the report to the MC of the defendant no. 3. The counsel for the defendant no. 4 did not cross examine this witness despite opportunity given.

29. PW­4 Shri Yashpal Gehlot, resident of Dhruv Apartments, Rohini, Delhi was also examined on behalf of the plaintiff. He was a summoned witness. He stated that he was President of MC of the defendant no. 3 Society from February, 1997 to February or May, 2003. He stated that he had filed written statement on behalf of the defendant no. 3 Society in this case which is Ex. PW­4/1 and it bears his signatures at Point A and B. He deposed that the Mandir in question is not covered within the sanctioned building plan of the defendant no. 3 Society and stated that so far he is aware, there is no revised or amended sanctioned plan of the Society having provision for construction of the Mandir therein. He also deposed that during a talk/meeting on 8.5.1997 between himself, defendants no. 1 and 2, plaintiff and other members of the Society, it was agreed and confirmed that no unauthorised construction of the temple shall be started by anyone without obtaining prior approval of the competent authority. He further deposed that he had attended the meeting of the Contd.....

defendant no. 3 Society on 11.10.2009 and the minutes of the said meeting contains his signatures at Point X1 and X2 on the original minute book and he signed his attendance at serial no. 24 in the minute book at Point X2 while his other signatures at Point X­1 relates to his objection and other member's objection raised with regard to the validity of the said meeting. I have perused the said minute book, over the signatures at Point X1, there is a note which reads that "GB is in violation of Section 51(6) of DCS Rules, 2007 as GB is not accompanied by B.S., P & Loss A/C, Audit Report etc. So cannot be discussed and approved." He further deposed that when he had signed on the minutes book then the portion encircled A to A1 was not written therein and it was added subsequently without their knowledge. The said encircled portion refers to a note which says that GB is legitimate in all respects and if there is objection it should be submitted with RCS who is competent authority. This witness was cross examined by counsel for the defendants no. 1 and 2 wherein he denied the suggestion that portion encircled A to A1 was already written when he signed at Point X2. He denied the suggestion that further proceedings started only after discarding his objection and also denied that other proceedings after his signatures at Point X2 were Contd.....

also recorded at the same time. He deposed that there was no need for them to file any police complaint against the construction of temple since MCD had already taken action against it regarding the same. He stated that he do not remember the exact date when the construction was started after 9.5.1997 and stated that construction started prior to issuance of notice dated 17.7.1997 by MCD but it was not complete. He further deposed that no police complaint was ever made by them regarding said construction. He volunteered that they had already issued notification Ex. PW­4/3 in that regard. I have perused the same. It is dated 30.4.1997 and bears the signatures of this witness at Point A. In the said notification it is also mentioned that there are certain persons/associations who are trying to grab the Society land, for some unauthorised construction, without the knowledge of the Society and no one should indulge in construction activities except the Society. He further deposed that no action could be taken against the defendants no. 1 and 2 in view of the said notification since complete charge was not given to them by the previous Management Committee wherein the defendant no. 2 was the Secretary. This witness was not cross examined on behalf of the defendant no. 4 i.e. MCD despite opportunity given.

Contd.....

30. PW­5 Shri S.S. Khanna was also examined on behalf of the plaintiff. He was a resident of Dhruv Apartments, Sector­13, Rohini, Delhi. He was a summoned witness. He stated in chief examination that he has been Secretary of the Managing Committee of defendant no. 3 Society for about six months during the period February, 1997 to August, 1997 and at that time Shri Y.P. Gehlot was the President. He stated that letter dated 19.4.1997 Ex. PW­1/4 was received by defendant no. 3 Society from the plaintiff and he replied the said letter through reply dated 5.5.1997 on behalf of said Society which is already Ex. PW­1/21. The letter Ex. PW­1/4 mentions about the grabbing of open space in the Society in the shape of Mandir unauthorisedly. The reply Ex. PW­1/21 mentions that Shri Y.P. Gehlot i.e. President of Society has issued notification dated 30.4.1997 on the basis of letter dated 19.4.1997. He further deposed that one Show Cause Notice was received from MCD during his tenure regarding the unauthorised construction above the underground water tank. He further deposed that in sanctioned building plan there is no provision of construction of the temple specially above the underground water tank located in the Society premises. In cross Contd.....

examination the witness stated that when he received the notice from MCD on behalf of Society then there was a small platform which was constructed and there were idols of one or two deities. He further stated in cross examination that after receiving the said notice a tin shed was also fixed. He stated that reply given to MCD is a matter of record. He was cross examined only by the counsel for the defendants no. 1 and 2. Remaining defendants did not cross examine this witness despite opportunity given.

31. The plaintiff has examined PW­6 Shri Dev Sharma as the last witness. He was a summoned witness and resident of Dhruv Apartments, Sector­13, Rohini, Delhi. He deposed on the same lines as that of PW­3 Shri Om Prakash Sharma. He stated that he alongwith Shri Om Prakash Sharma had jointly submitted a report regarding the construction of temple within the Society as to its location and plan, to the defendant no. 3 which is signed by him at Point B and by Shri Om Prakash Sharma at Point A and the said report is Ex. DW­2/P6 and the same is correct. He also deposed that he is neither an Architect nor an Engineer or otherwise qualified technically in construction matters but being a senior resident of the society, they were assigned the said task Contd.....

by the Society to remove the disputes. He also deposed that after submission of report, they were not called by the MC of the Society for any further discussion. He was cross examined by counsel for the defendants no. 1 and 2. In cross examination he stated that he is not original allottee of the flat in the Society in question and he purchased the flat on the basis of Power of Attorney. He stated that the Mandir was already in existence when he occupied his flat in the year 2000. He was not cross examined by remaining defendants despite opportunity given. No other witness has been examined in this case.

32. The testimonies of all the defendant witnesses and plaintiff witnesses have been discussed above in detail. From the testimony of the witnesses it is clear that there is an unauthorised construction of the temple in question by defendants no. 1 and 2 and the said unauthorised construction has already been booked by MCD and demolition order has already been passed. The location of the alleged construction is not in dispute and the site plan Ex. DW­1/P4 is not disputed by the defendants. The alleged unauthorised construction is shown in red colour in the site plan Ex. DW­1/P4. There is no sanctioned building plan to show that the alleged construction of Contd.....

temple was duly sanctioned or approved by MCD or any other competent authority. The witness from MCD also deposed that the said construction/structure in the shape of the Mandir is unauthorised and not compoundable. The entire evidence as discussed above in detail clarifies in clear terms that the said construction is unauthorised and appropriate action has to be taken against the said construction by the concerned authorities in accordance with law. It is also to be noted that PW­2 was draftsman from North Delhi Municipal Corporation who was not cross examined by any of the defendants despite opportunity given. He proved the sanctioned building plans (issued under RTI Act). Moreover, during the arguments the counsel for the defendants no. 1 and 2 also referred about Show Cause Notice and demolition order of MCD and submitted that MCD has already booked unauthorised construction and further submitted that the court may direct the concerned authority to take action as per law. Counsel for the defendants no. 1 and 2 also argued that nobody is agent or servant of defendants no. 1 and 2. Counsel for the defendants also referred to The NCT of Delhi Laws (Special Provisions)­Second Act, 2011 and submitted that as per the provisions of said Act no punitive action shall be taken till 31.12.2014. In rebuttal arguments the Contd.....

counsel for the plaintiff submitted that in case there is any bar of demolition of unauthorised construction in question up to 31.12.2014 in the light of above mentioned Act of 2011 then in case the decree is passed by the court in favour of the plaintiff, the same may be executed by the concerned authority after the bar period is over, as per law. It is not out of place to mention here that after closing of the evidence in this case when the matter was being fixed for final arguments, the plaintiff filed an application under Order 6 Rule 17 CPC r/w Section 153 and 151 CPC. The said application has been dismissed vide detailed order dated 5.10.2013. By way of said application the plaintiff wanted to incorporate the additional prayer clause in the plaint and it was submitted on behalf of the plaintiff that no more evidence is to be led in case the application is allowed. The application was strongly opposed by defendants no. 1 and 2 and it was submitted on behalf of the defendants that no issue was framed in respect of the proposed prayer and the defendants would have certainly led their evidence on the said issue had there been such prayer originally and the defendants would be seriously prejudiced in case the prayer of the plaintiff is allowed. It was also submitted by counsel for the defendants that the defendants would have also cross Contd.....

examined the plaintiff's witnesses on the said issue also if the proposed prayer clause would have been there in the plaint originally. The said application was dismissed by the detailed order as mentioned above.

33. In view of above detailed facts and circumstances and all the material evidence of both the parties discussed above in detail and also in the light of the provisions of The NCT of Delhi Laws (Special Provisions)Second Act, 2011, I hereby hold that the plaintiffs are entitled for decree of Permanent and Mandatory Injunction in their favour and against the defendants as prayed for since they have successfully proved their case. Hence, both the issues under consideration are decided in favour of the plaintiffs and against the defendants.

34. Relief:­ In view of detailed findings given on all the above issues, the present suit is hereby decreed in favour of the plaintiffs and against the defendants and accordingly, the following reliefs are awarded in favour of the plaintiffs and against the defendants no.

Contd.....

1, 2, 4 and 5 as prayed in the prayer clause of the plaint which was filed originally by the plaintiffs:­ (1). A decree of Permanent Injunction in favour of the plaintiffs and against the defendants no. 1 and 2, their agents, servants, attorneys, contractors, employees etc. thereby restraining them from raising any construction at, upon, above and around the underground water reservoir and pump house as shown in red colour in the site plan Ex. DW­1/P4, comprising part of Plot No. 43, Sector­13, Rohini, Delhi­110085.

(2). A decree of Mandatory Injunction in favour of the plaintiffs and against the defendants no. 4 and 5 with a direction to said defendants to demolish the illegal and unauthorised construction in question in the present case over the underground water tank in a part of Plot No. 43, Sector­13, Rohini, Delhi­110085 as shown in red colour in the site plan Ex. DW­1/P4 with a further direction to take appropriate legal action w.r.t. said construction, strictly in accordance with law. Needless to mention that the execution of abovesaid decree of Mandatory Injunction shall be subject to the provisions of The NCT Contd.....

of Delhi Laws (Special Provisions)Second Act, 2011.

(3). Parties to bear their own costs.

Ordered accordingly. Decree sheet be prepared accordingly. File be consigned to record room after completing the necessary formalities.

Passed and announced in the                           (MANISH GUPTA)
open court today i.e.10.12.2013                SCJ­CUM­RC (NORTH) 
                                                 ROHINI COURTS/DELHI
                                                                           h




                                                                        Contd.....
 Suit No. 186/2012                                             58




                                                                   Contd.....