Delhi District Court
Sh. Khem Chand vs Sh. Mahender @ Babu on 29 November, 2018
Khem Chand V. Mahender @ Babu & Ors.
IN THE COURT OF SH. ARUN SUKHIJA,
ADDITIONAL DISTRICT JUDGE - 07, (CENTRAL DISTRICT)
TIS HAZARI COURTS, DELHI.
RCA NO. : 43/2016
UNIQUE CASE ID NO. : 62008/2016
IN THE MATTER OF :
Sh. Khem Chand
S/o Late Sh. Shiv Dutt
R/o 16/1871, Bapa Nagar,
Pyare Lal Road, Karol Bagh,
New Delhi110005. .....Appellant
Vs.
1. Sh. Mahender @ Babu
2. Pradeep Kumar
Both R/o H. No. 16/186,
IBlock, Bapa Nagar,
Karol Bagh,
New Delhi110005.
3. North Municipal Corporation of Delhi
Through its Commissioner,
Civic Centre,
Dr. Shyama Prasad Mukerjee Marg,
Minto Road, Delhi.
Earlier at :
RCA No. 43/2016 Page 1 of 29
Khem Chand V. Mahender @ Babu & Ors.
Town Hall, Chandni Chowk,
Delhi110006.
4. B.S.E.S. Yamuna Power Ltd.
Through its Business Manager,
Karol Bagh Zone,
New Delhi. .....Respondents
Date of institution of the Appeal : 21/12/2016 Date on which Judgment was reserved : 09/10/2018 Date of Judgment : 29/11/2018 : J U D G M E N T:
1. The Appellant was Plaintiff and Respondents were Defendants before the Ld. Trial Court. The Appellant and Respondents are respectively referred in this Judgment according to the original status before the trial court. The Plaintiff/Appellant is dissatisfied with the Judgment and Decree dated 11.11.2016 passed by the Ld. Trial Court whereby the suit of the plaintiff was dismissed by the Ld. Trial Court.
2. Succinctly stated the Plaintiff has filed a Suit for permanent and mandatory injunction against the defendants interalia on the following facts: A. The plaintiff is the owner and in possession of the property bearing no. 16/187I, Gali No. 3, Ambedkar Gali, Hardhyan Singh Road, Bapa Nagar, Delhi - 110005. The plaintiff is residing along with his family members at ground RCA No. 43/2016 Page 2 of 29 Khem Chand V. Mahender @ Babu & Ors.
and first floor of the suit property while the brother of the plaintiff is residing at second and third floor of the said property. The property of the plaintiff is very old constructed one and no fresh construction was carried out except the permissible repairs as per building bye laws in the second and third floor of the property after giving information to the MCD. B. The defendant nos. 1 and 2 are brothers and living in property bearing no. 16/186I, Bapa Nagar, Karol Bagh, Delhi (herein after referred to as suit property). They have carried out illegal and unauthorized construction over the suit property and also encroached the public space / land. Even the electric pole has been encroached and covered within illegal and unauthorized construction. C. The plaintiff is residing adjacent to the property of defendants no. 1 and 2 and unauthorized and illegal construction blocked the natural air and light to the house of the plaintiff which made the life of the plaintiff, his family members and various residents of the locality miserable. The plaintiff made several requests to the defendant nos. 1 and 2 to stop unauthorized construction. The defendant nos. 1 and 2 had not stopped the unauthorized construction and encroachment of public space despite several requests made by the plaintiff. Defendants nos. 1 and 2 have also threatened that in case the plaintiff raised any voice or made any complaint, the plaintiff would face consequences. The defendants no. 1 and 2 have also ignored all the building bye RCA No. 43/2016 Page 3 of 29 Khem Chand V. Mahender @ Babu & Ors.
laws, rules, regulations and construction norms in order to complete the unauthorized construction. D. The plaintiff has also approached the officials of the defendant nos. 3 and 4 to intervene and stop the illegal and unauthorized construction being carried out by the defendant nos. 1 and 2. A written complaint dated 05.12.2008 was given to the SDM, Karol Bagh but no action was taken. The officials of defendant nos. 3 and 4 have permitted the defendant nos. 1 and 2 to carry out the unauthorized construction and encroachment of public land. The defendant nos. 1 and 2 have also converted the residential property into commercial complex and have given various portions on rent to various commercial establishments which resulted into great nuisance, obstruction and hindrance to the peaceful life of residents of the locality and the plaintiff. Plaintiff has also given complaints to the MCD and police but no action was taken. The defendant nos. 1 and 2 have not got sanctioned any building plan or any approval for the unauthorized construction.
E. On 01.02.2009, plaintiff once again requested the defendant nos. 1 and 2 to stop unauthorized and illegal construction immediately and to remove the encroachment over the public land but the defendants have threatened the plaintiff with dire consequences. Hence, the plaintiffs have filed the present suit seeking following reliefs : RCA No. 43/2016 Page 4 of 29 Khem Chand V. Mahender @ Babu & Ors.
"Pass a decree of permanent injunction in favour of the plaintiff and against the defendants thereby restraining the defendant no. 1 and 2 and their labourers, associates, representatives etc. from raising any illegal and unauthorized construction over the property bearing no. 16/186I, Bapa Nagar, Karol Bagh, New Delhi110005 as well as on the encroached public / govt. land as shown in the site plan.
Pass a decree of mandatory injunction in favour of the plaintiff and against the defendants thereby directing the defendant no. 3 and 4 to demolish / remove the entire illegal / unauthorized construction as already carried out by the defendants no. 1 and 2 over property no. 16/186I, Bapa Nagar, Karol Bagh, New Delhi - 110005 and encroachment made over public / govt. land as well as the electric pole as shown in the site plan."
The defendant nos. 1 and 2 have filed joint written statement taking preliminary objections that the suit of the plaintiff is not maintainable as the plaintiff has no locus standi to file the same. It is stated that the defendants are not the owners of the property and their father Sh. Govind Ram is the owner of the property. It is stated that the construction of the property is very old, even prior to 1955 and the allegation of the unauthorized construction are absolutely false. The suit is bad for mis joinder and non joinder of necessary parties. The plaintiff has also not approached the Court with clean hands and has suppressed material facts from the Court.
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It is stated that the plaintiff himself has raised unauthorized and illegal construction in the property and the same has been booked for unauthorized construction by the defendant no. 3. It is further stated that the electric pole was installed at the front of the property since long and some provisions were made for the purposes of saving small children from electric wires. The defendants have not raised any unauthorized or illegal construction. Rest of the allegations made in the plaint are denied in the written statement.
The defendant no. 3 has filed separate written statement taking preliminary objections that the suit of the plaintiff is not maintainable for want of statutory notice under Section 477 / 478 of DMC Act, 1957 and there is no cause of action against the defendant no. 3. It is stated that upon inspection, it was found that the impugned property consists of ground, first, second and third floor measuring approx. 25 sq. yds. which is old and occupied. The impugned property falls in unauthorized regularized colony and upon inspection, it was also noticed that no unauthorized construction was going on at the site. The present suit is also not maintainable under Section 41 (h) and (i) of Specific Relief Act and hence, liable to be dismissed. It is also stated that on peripheral view, it was noticed by the concerned JE that there is no encroachment upon the public space / land.
The defendant no. 4 has also filed separate written statement taking preliminary objection that there is no cause of action against the defendant no. 4 as the defendant is only RCA No. 43/2016 Page 6 of 29 Khem Chand V. Mahender @ Babu & Ors.
responsible for distribution of electricity in a notified area and not for stoppage of any unauthorized construction. Hence, the plaint is liable to be rejected qua the defendant no. 4.
The plaintiff has filed separate replication to the written statement of the defendants no. 1 and 2 and separate replication to the written statement of defendant nos. 3 and 4 wherein he has reiterated the averments made in the plaint and denied the allegations made in the written statement.
On completion of pleadings, following issues were framed by the Ld. Trial Court on 20.04.2011: ISSUES
1. Whether the plaintiff is entitled to the decree of permanent injunction as prayed for ? OPP.
2. Whether the plaintiff is entitled to the decree of mandatory injunction as prayed for ? OPP.
3. Whether there is no cause of action against the defendant no.
1 and 2 ? OPD1 and 2.
4. Relief.
EVIDENCE OF PLAINTIFF AND DEFENDANTS The plaintiff examined himself as PW1 and tendered his evidence by way of affidavit Ex. PW1/A wherein he has reiterated the averments of the plaint. PW1 relied upon the following documents : i. Site plan of the suit premises as Ex. P1.
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ii. Digital photographs of the suit premises as Ex. P2 to Ex. P7.
iii. Copy of the police complaint dated 05.12.2008 addressed to DCP, Central District as Ex. P8.
iv. Copy of complaint dated 05.12.2008 addressed to the Commissioner of MCD as Ex. P9.
The plaintiff has also examined Sh. Ravi Dutt as PW8, who tendered his evidence by way of affidavit Ex.PW8/A. The plaintiff has summoned the following witnesses:
(i) Sh. Ashok Verma, Office Incharge, Building Department, Karol Bagh Zone, MCD office as PW2. He produced the original file of booking of unauthorized construction in the property bearing No. 16/186I, Bapa Nagar, Karol Bagh, New Delhi. The original file is Ex. PW2/1 (Colly.).
(ii) Sh. Rahul, Assistant Ahlmad from the Court of Sh. Harun Pratap as PW3. He produced the copy of challan filed in FIR no. 397/07, PS Prasad Nagar, Central District which is Ex. PW3/1.
(iii) Sh. Ram Chandra, Receptionist, Civic Centre, Care Taker, Dr. SP Mukherjee Marg, Delhi as PW4. He produced the extracts of diary register of receipt of complaint by MCD. The record is Ex. PW4/1 and Ex. PW4/2.
(iv) HC Naresh Kumar from PS Prasad Nagar as PW5. He produced FIR register containing FIR no. 397 dated 30.10.2007 registered as PS Prasad Nagar. The copy of the FIR is Ex. PW5/1.
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(v) Sh. Syed Huzoor Mujtaba, Assistant Engineer, Planning Department, Civic Centre, Jawaharlal Nehru Marg, Delhi as PW6. He has relied upon the document already Ex. PW2/1.
(vi) Sh. Ram Avtar Goel, AE Building, Karol Bagh Zone, North MCD as PW7. He also produced original file regarding booking of unauthorized construction which is already Ex. PW2/1.
The defendants no. 1 and 2 have examined Sh. Pradeep Kumar /defendant no. 2 as D2W1 who tendered his evidence by way of affidavit as Ex. D2W1/A. He has relied upon the following documents : i. Aadhar Card as Ex. D2W1/1.
ii. Copy of ration card dated 18.07.1996 as Mark A1.
iii. Copy of ration card dated 10.02.2007 as Mark A2.
iv. Property Tax Receipt dated 25.02.1984 as Ex.
D2W1/2.
v. Property Tax Receipt dated 07.11.2012 as Ex.
D2W1/3.
vi. Property Tax Receipt dated 15.11.2012 as Ex.
D2W1/4.
vii. Tax Assessment dated 22.02.1986 as Ex. D2W1/5.
viii. Letter seeking permission dated 21.07.2007 with endorsement of JE as Ex. D2W1/6.
3. The Ld. Trial Court has passed the impugned judgment and decree dated 11/11/2016, whereby the suit of the plaintiff was dismissed. The Plaintiff/Appellant aggrieved from the RCA No. 43/2016 Page 9 of 29 Khem Chand V. Mahender @ Babu & Ors.
Judgment and decree, passed by the Ld. Trial Court, has sought to set aside the Judgment and decree dated 11/11/2016 interalia on the following grounds and which is also the arguments of the appellant: (A) Because the Ld. Trial Court wrongly held that the plaintiff failed to produce any document showing the contravention of requirement of site plan of the suit property before construction of the suit property although, the suit property has been booked by MCD for unauthorized construction. Ld. Trial Court had wrongly relied upon minor contradictions of PW1, which are natural contradictions and the suit of the plaintiff was dismissed, which is against law.
(B) Because the Ld. Trial Court wrongly held that the suit property was not booked by MCD for unauthorized construction and encroachment on public land, whereas the MCD had booked the suit property for unauthorized construction and encroachment, therefore, the order of Ld. Trial Court is against the law and facts on record. (C) Because the Ld. Trial Court failed to take into consideration the fact that there is mandatory provision in the Electricity Act that no construction can be raised in 1.2 meter distance from the electricity pole. The MCD during the course of proceedings of the case, had booked the suit property for encroachment of the public land which is 1.2 meters of the electricity pole and the RCA No. 43/2016 Page 10 of 29 Khem Chand V. Mahender @ Babu & Ors.
respondents no. 1 and 2 had encroached the entire 1.2 meters of the land for the pole. The MCD had demolished the suit property partly and not completely. The Ld. Trial Court ought to have ordered the demolition of encroachment on public land and allowed the suit. (D) Because the Ld. Trial Court failed to consider the fact that under Delhi Special Provisions Act, 2014, there is no restrain on the Court from passing the orders for demolition of encroachment or demolition of property constructed without sanctioned site plan. (E) Because the respondents no. 1 & 2 failed to provide any sanctioned site plan of the suit property. (F) Because the Ld. Trial Court failed to consider that the projection over public land has not been cleared and the electric pole has not been cleared from projection. The Ld. Trial Court also failed to consider that when the suit property was not booked for demolition why the FIR was registered and action of demolition and puncturing was taken against the suit property.
4. In the aforesaid background, the following points for determination arise for the consideration of the present case:
i) Can the order under question be termed as perverse, capricious and arbitrary?
ii) Does the impugned order run against the legal framework operating in and principles enunciated in this sphere?
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iii) Does determination of point for determination no.1 or 2 warrants any indulgence or interference of the present Court with the order appealed against?
iv) What order?
POWER OF THE APPELLATE COURT IN FIRST APPEAL: Before adverting into the assessment of the factual aspect, it is worthwhile to lay the bare powers and jurisdiction that can be exercised by the present Court being First Appellate Court. This Court is being termed as the last court for evaluating, re appreciating and reassessing the factual aspect that may be emerging from the record and proceeding of the lis, popularly known as Court of facts and law. The precinct of the power lies in the court coextensive with the trial court and can exercise all the powers that have been vested in the trial court in respect of evaluation and appreciation of evidence and conclusion be drawn on the basis of the fresh evaluation of the evidence and facts be put in the jacket of laws which may be both adjective and substantial one.
An appeal is continuation of suit. More than hundred years, Couch, C.J. In Ratanchand Shrichand Vs. Hanmantrav Shivbak has stated: "A suit is a judicial proceeding, and the word "proceedings" must be taken to include all the proceedings in the suit from the date of its institution to its final disposal, and therefore to include proceedings in appeal."
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Appeal is rehearing of the suit. The appellate court possesses the same powers and discharges the same duties as that of the original court. Once an appeal is preferred, the matter becomes subjudice and the appellate court is seisin of the whole case. The hearing of the appeal is thus rehearing of the suit or original proceeding.
As West, J. stated, "The legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding."
"Sec.107. Powers of appellate Court(1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power
(a) to determine a case finally;
(b) to remand a case;
(c) to frame issues and refer them for trial;
(d) to take additional evidence or to require such evidence to be taken.
(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein."
POWER TO DECIDE A CASE FINALLY; SECTION 107(1)(a) An Appellate Court can decide a case finally. Where the evidence on record is sufficient to enable the appellate Court to pronounce the judgment, it may finally determine the case notwithstanding that the judgment of the trial court has proceed RCA No. 43/2016 Page 13 of 29 Khem Chand V. Mahender @ Babu & Ors.
wholly upon some ground other than that on which the appellate court proceeds. The general rule is that a case should, as far a possible be disposed of on the evidence on record and should not be remanded for fresh evidence, except in rare cases, by drawing a final curtain on the litigation between the parties. "If life like a dome of many coloured glass stains the white radiance of eternity, so do the doings and conflicts of mortal beings till death tramples them down."
POWER TO INTERFERE WITH DISCRETION OF LOWER COURT As a general rule, a court of appeal will not interfere with the exercise of discretion by the court below and substitute its own discretion for the discretion of the lower court. It has been said that where the legislature has left the matter in the discretion of a court and with the same pen and ink has provided an appeal from the decision of the court, the task of the court of appeal is not to consider how it would have exercised the discretion, but to examine whether the court below has exercised the discretion judicially and in accordance with well recognized principles of law. Where the discretion has been exercised in good faith on a consideration of all relevant materials and circumstances and without being swayed by irrelevant matters and no injustice has been done by such exercise of discretion by the court below, the appellate court will not interfere with it even if it does not agree with the exercise of discretion by the trial court.
In certain cases however, it is not only the power but the duty of the appellate court to interfere with exercise of discretion by RCA No. 43/2016 Page 14 of 29 Khem Chand V. Mahender @ Babu & Ors.
the Court below. Where the trial court had acted arbitrarily or capriciously or in total disregard of sound judicial principles, or without taking into consideration relevant and germane factors or had proceeded on assumptions not borne out or justified by records, or had applied wrong or incorrect legal principles leading to an unjust order, or where was abuse of power by the court below or if the court below fails to exercise discretion or where there is miscarriage of justice, the appellate court will interfere with the discretion.
The power of interference, however, should be exercised sparingly and with circumspection. Though the power of the appellate court is wide, ample and unrestricted it should not be exercised unless such exercise is necessary to relieve the aggrieved party and in the larger interest of justice.
The possibility of the appellate court coming to a different conclusion does not justify interference with the discretion exercised by the court below. The mere fact that the court below has not recorded cogent or sufficient reasons for exercising discretion in a particular manner is no ground for interference by the appellate court if the facts on which discretion has been exercised are present. The burden is on the appellant to prove that the discretion had not been exercised judicially. POWER TO APPRECIATE EVIDENCE An appeal is a continuation of suit. The appellate court hence, can review the evidence as a whole subject to statutory limitations, if any, and can come to its own conclusion. Once a RCA No. 43/2016 Page 15 of 29 Khem Chand V. Mahender @ Babu & Ors.
decree passed by the court of original jurisdiction has been appealed against, the matter becomes subjudice and the appellate court is seisin of the whole case. The hearing of appeal is really re hearing of the suit.
POWER TO MODIFY DECREE An appellate court may pass any decree or made any order which ought to have been passed or made and may also pass or make such further or other decree or order as the case may require. The said power may be exercised by the appellate court not only between the appellant and the Respondents but also between the Respondents interse. The provision enables the appellate court to grant a relief not only to the appellant who has filed an appeal but also to the Respondents who has neither filed an appeal nor filed crossobjections.
OTHER POWERS An appellate court may pass any order which could and ought to have been passed by the original court. It can also make such other or further order as the case may require. An appellate court is competent to make any incidental or interlocutory order as could have been made by an original court.
Thus, during the pendency of appeal, if the defaulting tenant pays rent, an appellate court may grant relief against forfeiture. Looking to the conduct of the tenant, however, it may decline to grant relief. The question is not one of jurisdiction but of discretion. Similarly, the appellate court may pass a decree if it is of the view that such a decree ought in law to have been passed by the RCA No. 43/2016 Page 16 of 29 Khem Chand V. Mahender @ Babu & Ors.
trial court. In a suit for redemption, an appellate court may investigate into claim for damages for waste by the Respondents during the pendency of appeal. It can also hold local inspection. It can record compromise in execution proceedings. It can restore an appeal dismissed for default of appearance, delete or substitute parties in appeal, can permit withdrawal of appeal, can appoint receiver or commissioner, can reconstruct record lost or destroyed, can set aside exparte decree to reject plaint or memorandum of appeal, can reject plaint or memorandum of appeal; can stay execution proceedings etc. FINDINGS AND CONCLUSIONS OF THE COURT The Ld. Trial Court has given the detailed issuewise findings and the same are reproduced as under: "22. ISSUE NO. 3. : Whether there is no cause of action against the defendant no. 1 and 2 ? OPD1 and 2.
23. Issue no. 3 is taken first as it relates to the maintainability of the suit. The onus of proof of this issue has been placed upon the defendant no. 1 and 2.
24. Ld. Counsel for the defendant no. 1 and 2 has argued that there is clear admission of MCD in its written statement that no unauthorized construction was going on in the suit property and it is also admitted by the MCD that the suit property is an old construction. It is argued that the defendants have proved that the plaintiff had no cause of action to file the present suit.
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25. On the other hand, Ld. Counsel for the plaintiff has argued that the electric pole was encroached upon inside the property of defendant no. 1 and 2 and there is no sanctioned site plan of the suit property. The defendant no. 1 and 2 had recently tried to open a window in the property of the plaintiff and therefore, the plaintiff had a cause of action to file the present suit.
26. I have considered the submissions and perused the material on record.
27. The plaintiff in para no. 22 of the plaint has briefly stated about the cause of action. It is stated that cause of action for filing the present suit arose in favour of the plaintiff and against the defendants, firstly when the defendant no. 1 and 2 started carrying unauthorized construction at the suit premises and made encroachment over the public / govt. land and further on various dates and occasions when the plaintiff made requests to the defendant no. 1 and 2 to stop the illegal and unauthorized construction and for removal of the unauthorized construction and encroachment over public / govt. land.
28. Perusal of the plaint shows that in the entire plaint, the plaintiff has not stated the date/ month/year as to when the defendant no.1 and 2 started carrying alleged unauthorized construction on the suit property. It is only stated in para no. 19 of the plaint that on 01.02.2009, the plaintiff asked the defendant no.1 and 2 to stop the unauthorized construction.
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29. The defendant no.1 and 2 have taken defence that the suit property is an old construction and no new construction was carried out by them. Defendant no. 2/DW1 in the affidavit has stated that the suit property is very old and in existence since last several years and no fresh construction has been carried out except the permissible repairs as per law after giving intimation to the MCD on 21.07.2007 which was duly sanctioned by the JE concerned on 30.08.2007. He has also stated that the suit property is in the name of his father Sh. Govind Ram and it was constructed even prior to 1955 to the level it existed today. He has not raised any construction on the suit property as the entire construction was done by his father.
30. The witness has been cross examined at length by Ld. Counsel for the plaintiff. During cross examination, D2W1 Sh. Pradeep Kumar has categorically stated that the property was not got constructed by him. He has voluntarily stated that the same has been constructed long ago during the life time of his father and grandfather. His property was constructed upto four floors including ground floor. The witness has categorically denied the suggestion that he was getting his house constructed in the year 2009 when the present suit was filed.
31. During crossexamination of D2W1 Sh. Pradeep Kumar, no suggestion has been given to the witness that the property is not old or it was not constructed during the year 1955 as stated in the affidavit.
32. Plaintiff has alleged that the defendant no.1 and 2 were raising unauthorized construction in the year 2009 and therefore, RCA No. 43/2016 Page 19 of 29 Khem Chand V. Mahender @ Babu & Ors.
the present suit has been filed. The photographs relied upon by the plaintiff are Ex. P2 to Ex. P7. The photographs filed by the plaintiff does not show that there is any construction going on in the suit property. There is no raw material lying near the suit property. Even the construction of the suit property appearing in the photographs does not appear to be new.
33. The plaintiff has failed to bring any material to show that the defendant no. 1 and 2 were raising unauthorized construction as alleged in the plaint. Further, the defendant no. 3 / MCD in the written statement in para no. 2 of preliminary objections has specifically stated that the suit property falls in unauthorized regularized colony and upon inspection, it was noticed that no unauthorized construction or activity was going on at the site at present.
34. In view of discussion hereinabove, this Court holds that the defendant no.1 and 2 have proved, on the balance of probability, that the suit property is an old construction and no new construction was carried out by the defendant no. 1 and 2 as alleged in the plaint. Thus, the defendant no. 1 and 2 have proved that the plaintiff had no cause of action to file the present suit. Accordingly, this issue is decided in favour of the defendants and against the plaintiff.
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35. ISSUE NO. 1 : Whether the plaintiff is entitled to the decree of permanent injunction as prayed for ? OPP.
36. The onus to prove this issue was placed upon the plaintiff. Ld. Counsel for the plaintiff has argued that the defendant no. 1 and 2 were raising unauthorized construction and they were trying to open a window in the property of the plaintiff. It is argued that due to unauthorized construction, MCD has demolished the chajja of the suit property and therefore, the plaintiff is entitled to the relief as claimed.
37. On the other hand, Ld. Counsel for the defendants has argued that no construction was carried out by the defendant no. 1 and 2. Further, there is no sanctioned site plan of any building in the area. The projection, if any, over the public land has been demolished by MCD and therefore, the plaintiff is not entitled to any relief.
38. I have considered the submissions and have perused the material on record.
39. The plaintiff has alleged that the defendant no.1 and 2 have been carrying out unauthorized and illegal construction in the suit property by making encroachment of the public land. It is also alleged that the defendant no.1 and 2 have also covered the electric pole in unauthorized construction.
40. This Court has already observed while deciding issue no.1 that the plaintiff has failed to prove, on the balance of probability, that the defendants no.1 and 2 were carrying out any unauthorized construction. On the other hand, the defendant no.
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1 and 2 have proved, on the balance of probability, that the property is an old construction. In view of specific findings of this Court that the plaintiff had no cause of action to file the present suit, this Court holds that the plaintiff is not entitled to relief of permanent injunction as prayed. Accordingly, this issue is decided in favour of the defendants and against the plaintiff.
41. ISSUE NO. 2 : Whether the plaintiff is entitled to the decree of mandatory injunction as prayed for ? OPP.
42. The onus to prove this issue had been placed upon the plaintiff. Ld. Counsel for the plaintiff has argued that it has come on record that the suit property was constructed without any sanctioned site plan and therefore, MCD may be directed to demolish the entire unauthorized construction.
43. Per contra, Ld. Counsel for the defendants has argued that the possession over the public land i.e. near electric pole has been removed by the MCD. It is argued that all the properties in the locality are old constructed and under the National Capital Territory of Delhi Laws (Special provisions) Act, 2014, no demolition action can be carried out by MCD in respect of the construction which are old and occupied.
Therefore, the plaintiff is not entitled to relief of mandatory injunction.
44. I have considered the submissions and have perused the material on record.
45. It is admitted case that the plaintiff is resident of property bearing H.No. 16/187, Iblock, Bapa RCA No. 43/2016 Page 22 of 29 Khem Chand V. Mahender @ Babu & Ors.
Nagar, Karol Bagh, New Delhi - 110005. It is also admitted that the property of the plaintiff is constructed upto three floors. Plaintiff has also admitted that there is no site plan approved by any authority for his premises. It is also admitted that the plaintiff's premises falls under the same municipal area as house no. 16/186 i.e. the suit property. It is also admitted that in the locality of the plaintiff, the houses are normally built upto three storeys. It is also admitted that bye laws of MCD regarding construction are same for his premises as well as for the suit premises of defendant no. 1 and 2.
46. The plaintiff has examined MCD officials to prove the allegations that the defendant no.1 and 2 had carried out illegal and unauthorized construction and the same be demolished.
47. PW2 Sh. Ashok Verma has produced the original file pertaining to booking of unauthorized construction in the suit property i.e. property bearing no. 16/186I, Gali no. 3, Bapa Nagar, Karol Bagh, Delhi, the file is Ex. PW2/1 (Colly.). The witness has been crossexamined, and in the cross examination, after seeing the record, the witness has stated that there is no complaint in the file of property no. 16/186, Bapa Nagar to show any unauthorized construction on the suit property bearing no. 16/186, Bapa Nagar, Karol Bagh, Delhi. Prior to 15.01.2010, there is no record pertaining to unauthorized construction in the file brought by him.
48. PW6 Sh. Syed Huzoor Mujtaba is the Assistant Engineer of MCD. He has also relied upon the file regarding booking of unauthorized construction of the suit property. He has stated that the concerned RCA No. 43/2016 Page 23 of 29 Khem Chand V. Mahender @ Babu & Ors.
JE submitted the report on 14.01.2010 intimating that the property in question is consisting of ground, first, second and third floor with projection on municipal road. JE has also informed that the property is old and occupied and owner failed to show any sanction plan with respect to that building.
49. In the crossexamination, PW6 Sh. Syed Huzoor Mujtaba has stated that the approval for construction by way of furnishing a site plan to the MCD has been in existence since the year 1983. He cannot tell the year of construction of the suit property involved in dispute. The witness was shown the written statement filed by the MCD in the present suit. After seeing the same, the witness has stated that as per the written statement, there is no encroachment on public land / space on the ground floor but there was projection on the upper floor.
50. PW7, Sh. Ram Avtar Goel also produced the file regarding booking of unauthorized construction of the suit property. The record is Ex. PW2/1 (Colly.). As per the record of MCD i.e. Ex. PW2/1, action on unauthorized construction was taken on 03.10.2012. In the crossexamination, PW7 has stated that as per record, it is an old construction and other buildings in the area are also built up from ground floor to third floor.
51. It is also clear from the testimony of the MCD officials that the suit property is an old construction. Perusal of record also shows that MCD has filed one status report on RCA No. 43/2016 Page 24 of 29 Khem Chand V. Mahender @ Babu & Ors.
24.03.2015. The report has not been objected to by the Ld. Counsel for the plaintiff or by L.d Counsel for the defendant no. 1 and 2. In the said status report, it is stated that the property bearing no. 16/186, Gali no. 3, I block, Bapa Nagar was booked on 15.01.2010 in the shape of unauthorized construction of ground, first, second and third floor with projections on municipal land. The demolition action was taken on 03.10.2012 and RCC with Tiron at two panel was demolished. It is also stated that an encroachment removal action was taken for removal of projections on municipal land and the projections on municipal land was demolished and punctured and electric pole was cleared from the projections.
52. Photographs, filed by the MCD along with the report, shows the photograph of electric pole before and after the action taken by the MCD. One photograph shows that the electric pole is covered in the balcony and in another photograph taken after the action, electric pole has been cleared from the projections of balcony.
53. Thus, it has come on record that projections over the public land has been removed and electric pole has also been cleared from the projection. It has also been proved by the defendant no.1 and 2 that the defendants were not carrying out any construction in the property and the suit property is an old construction. It is also RCA No. 43/2016 Page 25 of 29 Khem Chand V. Mahender @ Babu & Ors.
proved on record that the suit property and the property of the plaintiff have been constructed without any sanctioned site plan from the MCD.
54. Clause (j) of Section 2 of the National Capital Territory of Delhi Laws (Special Provisions) Second Act, 2011 defines that 'unauthorized development'. Clause (j) reads as under :
(j) 'unauthorized construction' means use of land or use of building or construction of building or development of colonies carried out in contravention of the sanctioned plans or without obtaining the sanction of plans, or in contravention of the land use as permitted under the Master Plan or Zonal Plan or layout plan, as the case may be, and includes any encroachment.
55. Section 3 (1) of the said Act reads as under:
3. Enforcement to be kept in abeyance(1) Notwithstanding anything contained in any relevant law or any rules, regulations or byelaws made thereunder, the Central Government shall before the expiry of this Act, take all possible measures to finalise norms, policy guidelines, feasible strategies and made orderly arrangements to deal with the problem of encroachment or unauthorized development in the form of encroachment by slum dwellers and Jhuggi Jhompri clusters, hawkers and urban street vendors, unauthorized colonies, village abadi area (including urban villages), and their extensions, existing farm houses involving construction beyond permissible building limits and schools, dispensaries, religious institutions, cultural RCA No. 43/2016 Page 26 of 29 Khem Chand V. Mahender @ Babu & Ors.
institutions, storages, warehouses and godowns used for agricultural inputs or produce (including dairy and poultry) in rural areas built on agricultural land, as mentioned below : xxx
(c) orderly arrangements pursuant to guidelines and regulations for regularization of unauthorized colonies, village abadi area (including urban villages) and their extensions, as existed on the 31st day of March 2002, and where construction took place even beyond that date and up to the Ist day of June 2014".
56. The Act provides that all notice issued by any local authority for initiating action against encroachment or unauthorized development in respect of areas referred to in subsection (1), shall be deemed to have been suspended and no punitive action shall be taken.
57. In the case in hand, admittedly the property of the plaintiff as well as that of the defendants are situated in regularized unauthorized colony. The property of the plaintiff as well as that of the defendant Nos. 1 and 2 are old construction and have been constructed without any sanction plan. The provisions of the Act are clear that no punitive action shall be initiated for any unauthorized development where the construction took place upto 1st June 2014.
58. In view of the aforesaid act and also in view of the observations of this Court while RCA No. 43/2016 Page 27 of 29 Khem Chand V. Mahender @ Babu & Ors.
deciding issue no. 1 and 3, this Court holds that the plaintiff is also not entitled to the relief of mandatory injunction. Accordingly, this issue is decided in favour of the defendants and against the plaintiff."
(Portions bolded in order to highlight) The bare perusal of the aforesaid findings, the Ld. Trial Court has considered in detail the arguments of the plaintiff and the defendants and after considering the materials on the record, the Ld. Trial Court has passed the impugned judgment and decree dated 11/11/2016. The arguments/ grounds raised by the appellant herein have already been sufficiently dealt by the Ld. Trial Court and in my considered view, there is no infirmity in the findings of the Ld. Trial Court, which calls for any interference by this Court.
RELIEF:
Accordingly, in view of the discussions, as adumbrated above, I hereby pass the following :: FINAL ORDER ::
1. The Regular Civil Appeal of the Plaintiff/ Appellant is hereby dismissed.
2. The impugned Judgment and decree dated 11/11/2016 is hereby confirmed.
3. No order as to costs in the present appeal. The parties shall bear their own respective cost.RCA No. 43/2016 Page 28 of 29
Khem Chand V. Mahender @ Babu & Ors.
4. The copy of this Judgment may kindly be sent forthwith to the Ld. Trial Court alongwith the record of Trial Court.
Decreesheet in the Appeal be prepared accordingly, in terms of this Judgment.
Appeal file be consigned to record room after due compliance.
Announced in the open court on this 29th Day of November, 2018.
(ARUN SUKHIJA) ADJ07 (Central) Tis Hazari Courts, Delhi RCA No. 43/2016 Page 29 of 29