Delhi District Court
Sh. Rattan Lal vs (1)Delhi Development Authority on 31 October, 2007
1
IN THE COURT OF MS. RACHNA T. LAKHANPAL:
CIVIL JUDGE: DELHI
Suit No.509/06
Sh. Rattan Lal
S/o Late Sh. Parma Ram
R/o H. No.17-D, Gaon Mochi Bagh
(Previously known as Bagh Alakpur, Delhi)
Moti Bagh, Nanak Pura
New Delhi.
.... Plaintiff
Versus
(1)Delhi Development Authority
Through its Chairman
Vikas Sadan, Hauz Khas
New Delhi.
(2)Municipal Corporation of Delhi
Through its Commissioner
Town Hall, Delhi.
(3)S.H.O.
P.S. R.K. Puram, New Delhi
(4)Commissioner of Police
Police Head Quarter, ITO
New Delhi
(5)Sh. Tek Chand
S/o Late Sh. Parma Ram
(6)Vinod Kumar
S/o Sh. Tek Chand
(7)Sh. Kishan Dutt
S/o Sh. Tek Chand
2
All the respondents No. 5-7 are
R/o H. No.17-C, Gaon Mochi Bagh
(Previously known as Bagh Alakpur, Delhi)
Moti Bagh, Nanak Pura
New Delhi.
.... Defendants
JUDGEMENT
By this judgment I shall dispose off the present suit of the plaintiff.
2. In brief the case of the plaintiff is that plaintiff is the owner in possession of property No.17-D, Mochi Bagh, Near Nanakpura, New Delhi. The defendant No.5 is the brother of the plaintiff and is owner of the adjoining house bearing No.17-C, Mochi Bagh, Nanak Pura, Delhi. Defendant No.6 & 7 are the sons of defendant No.5 who are also associated in the illegal and unauthorised construction which is being carried on by defendant No.5 in the above said property. The property of defendant No.5 was initially two storeyed house and after demolishing the same and without getting the building plan sanctioned from defendant No.1 & 2, they have started raising construction of multi-storied building and act of digging the foundations has caused huge damage to the property of plaintiff.
3Defendant No.1, 5 and 7 have been requested by the plaintiff to stop the illegal construction. But of no use. There is an eminent danger to the lives of the plaintiff and his family which may happen due to fall of structure but the defendants have refused to listen to the said request of the plaintiff. The plaintiff visited the office of defendant No.1 to 4 for redressal of his grievance but, of no use.
3. In the written statement filed by the defendant No.1 DDA, it has been stated that defendant No.5 raised unauthorised construction on property bearing No.17-C, Mochi Bagh, Nanakpura. The same falls in Kh. No.224 which has been placed at the disposal of DDA vide agreement dated 31.3.37. As per jamabandi, the property in dispute shown in the name of Government/DDA. The defendant No.5 has raised construction of 4-5 storeyed house without sanction of the building plan. The site inspection has revealed that cracks has appeared in the adjoining property No.17-D of the plaintiff. The defendant No.2 MCD is to take appropriate action for unauthorised construction under the building bye-laws. The site inspection has revealed that unauthorised construction raised by defendants No.5 to 7 has caused damages/cracks to the adjoining property of the plaintiff.
4. In the written statement filed by defendant No.2 4 MCD, it is stated that defendant MCD has contemplated action against the unauthorised construction at the suit premises U/s 343/344 of the DMC Act after following due process of law. The unauthorised construction of ground floor, first floor, second floor and third floor and fourth floor and also projections on the municipal land has been booked and show cause notice has been issued and served upon the defendant No.5. No reply to the show cause notice has been received. The demolition notice has also been issued and served upon the defendant as per law. The demolition orders dated 10.5.99 were passed for demolition of unauthorised construction as per law. The unauthorised construction booked at the suit property has matured for demolition and same shall be demolished upon availability of the police force.
5. In the written statement filed by defendant No.5 it has been denied that unauthorised construction has been carried out. It has been further denied that any damage has been caused to the property of the plaintiff. It is stated that the defendant has not raised any unauthorised construction. It is stated that suit premises was constructed about 10 years back and no fresh construction has been carried out on the same except renovation and finishing job. No sanction plan is required as the building is in Lal Dora and building 5 bye-laws are not applicable. It is denied that threat was given to the plaintiff or his family members.
6. Similar was the reply of the defendant No.6 & 7.
7. From the pleadings of the parties the following issues were framed:
1. Whether the suit is bad for want of notice U/s 477/478 of DMC Act?
OPD2
2. Whether the suit is bad for want of notice U/s 53B of DD Act?
OPD1
3. Whether the plaintiff is entitled for the relief of mandatory injunction as prayed for? OPP
4. Whether the plaintiff is entitled for the relief of permanent injunction as prayed for? OPP
5. Relief.
8. Plaintiff examined himself as PW1 and he has exhibited copy of ration card Ex.PW1/1, site plan Ex.PW1/2 and photographs of cracks and illegal construction are Ex.PW1/3 to PW1/7. In defence defendant DDA has examined Sh. Gulfam Ahmed, 6 Patwari and has exhibited copy of jamabandi Ex.D1/W1/2, copy of aks-shijra Ex.D1W1/3, Nazul Agreement Ex.D1W1/1. Defendant No.2 MCD examined Sh. V.D. Sharma, Asst. Engineer Building. Defendant No.5, 6 and 7 examined themselves as witnesses.
9. I have heard the Counsels for the parties and have carefully perused the entire evidence, pleadings and the documents placed on the record by the parties. My findings on the issues is as under :-
10. ISSUE NO. 1:
The plaintiff has filed the suit for permanent and mandatory injunction seeking demolition of unauthorised construction and restraining further unauthorised construction from the property bearing No.17C, Gaon Mochi Bagh, Moti Bagh, Nanak Pura, Delhi herein after called as suit property and as from the relief itself it is clear that plaintiff had sought relief of urgent nature that's why the requirement of giving notice U/s 477/478 is dispensed with. Moreover, the MCD has contested the suit on merit and therefore, the suit cannot be dismissed for non-service of notice U/s 477/478 of DMC Act, therefore, this issue is decided in favour of the plaintiff.7
11. ISSUE NO. 2:
As already stated above the suit was of urgent nature and U/s 53 B(3) of DD Act itself requirement of giving notice in the case of injunction matters of urgent nature is dispensed with therefore the suit cannot be dismissed on the ground of non-service of notice U/s 53B DD Act and therefore this issue is decided in favour of the plaintiff.
12. ISSUE NO. 3:
Plaintiff has sought four reliefs which are in the nature of mandatory injunction. In para (a) of his prayer in the plaint plaintiff has sought for decree of mandatory injunction against defendants directing the defendants to demolish the illegal and unauthorized structure built up on property No.17-C, Mochi Bagh, Nanakpura, New Delhi. The onus to prove the same was on the plaintiff. Plaintiff has examined himself as witness and deposed that defendant No.5, 6 and 7 have raised construction of four storey building without obtaining sanction plan and due to the unauthorized construction by the defendant No.5 to 7 damage has been caused to his property and he has exhibited photographs of construction and the same shows incomplete construction of multi-storied building. The photographs have not been disputed by the defendants as not even a 8 suggestion has been given by defendant to plaintiff that photographs do not pertain to suit property and he has further cross-examined D1W1 Gulfam Ahmed working as Patwari, TN Section, DDA and in his cross-examination D1W1 has admitted that he had visited the suit property personally and suit property is built upto 4-5 storeyed and the inspection revealed that the cracks developed in the property of plaintiff due to digging of foundation and construction raised by defendant No.5 to 7. Defendant No.2 MCD also in its written statement has admitted that there is unauthorized construction at the suit premises and defendant No.5 has been booked and show cause notice No.31/B/UC/SZ/99 dated 26.4.99 has been issued and has been served and no reply to show cause notice was received within time therefore it was presumed that the booked unauthorized construction is without sanction/permission from MCD and accordingly demolition notice No.828 dated 3.5.99 was also issued and served upon defendant No.5 and thereafter finally demolition order dated 19.5.99 was passed under the policy. MCD examined Sh. V.D. Sharma, Assistant Engineer Building, MCD who also reiterated and re-affirmed the stand taken by MCD in WS. These witnesses were not cross-examined and disputed at all by defendant No.5, 6 and 7. The witness of MCD was cross- examined by the counsel for plaintiff in which the suggestion was given that no step has been taken by MCD for complying demolition 9 order. The witness of MCD further deposed that after passing of Delhi Law Special Act no action is being initiated. Therefore testimony of the MCD and DDA remained uncontroverted on the point of unauthorized construction raised at the suit property and plaintiff has been able to prove that there is unauthorised construction over the suit property on the basis of testimony of himself and MCD, DDA and photographs Ex.PW1/3 to PW1/7 (showing construction of 4-5 multi- storied building) and further defendant No.5-7 in their cross- examination have deposed that they don't have proof to show that building bye-laws are not applicable ove the suit property and further admitted that they don't have any proof to show that property falls under lal dora. Moreover, defendant No.5 has also admitted that he has not filed any proof to show that he obtained permission from MCD/DDA for the construction of the suit premises, defendant No.6 has also showed his ignorance as well regarding having taken permission by defendant No.5 from DDA/MCD and witness Sh. V.D. Sharma, MCD has also deposed that no steps have been taken till date for demolition of suit property. Although DDA in its WS and evidence has taken the stand that suit property belongs to DDA and has filed jamabandi, aks-shijra, nazul agreement and defendants 5-7 have neither disputed or cross-examined DDA on this point nor has filed any document showing ownership of suit property but as in the present 10 suit relief of mandatory injunction for demolition of unauthoried construction is in issue therefore at this stage I will not deal on the issue whether land belongs to DDA or someone else. The matter in issue is unauthorised construction and the same has been proved. Further, defendants have not cross-examined witness of MCD on the point of issuance of show cause notice, demolition order against them the presumption goes against the defendants. In his cross-examination witness of MCD has deposed that demolition has not taken place till date because of passing of Delhi Law Special Act. I am inclined to deal with this issue i.e. no action taken in pursuance of demolition order due to Delhi Law Special Act as well although this question was not made as issue at the time of framing of issues because Delhi Law Special Act came later on. Counsel for defendant No.5 to 7 has also submitted that as the status quo has been maintained as per Delhi Law Special Act and therefore construction cannot be demolished over the suit property. I have perused the copy of gazette dated 4.7.07. A bare perusal of the gazette reflects that this gazette applies to encroachment or unauthorized development in the form of encroachment by Slum dwellers and jhuggi jhompri clusters, hawkers and urban street vendors, existing farm houses involving construction beyond permissible building limits and school, dispensaries, religious institutions cultural institutions in rural areas built on agricultural land.11
The relevant portion is reproduced as under:
'Section 3 (1) Notwithstanding anything contained in any relevant law or any rules, regulations or bye-laws made thereunder, the Central Government shall within a period of one year of the coming into effect of this Ordinance, take all possible measures to finalise norms, policy guidelines and feasible strategies 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, existing farm houses involving construction beyond permissible building limits, and schools, dispensaries, religious institutions, cultural institutions in rural areas built on agricultural land............ (a) - (d) not relevant here.
(2)Subject to the provisions contained in sub-section (1) and notwithstanding any judgment, decree or order of any court, status quo as on the 1st day of January, 2006 shall be maintained in respect of encroachment or unauthroised development mentioned in sub- section (1).
(3)All notices issued by any local authority for initiating action against encroachment or unauthorized development referred to in sub-
section (1), shall be deemed to have been suspended and no punitive action shall be taken during the said period of one year............ Section 4:- During the period of operation of this Ordinance, no relief 12 shall be available under the provisions of Section 3 in respect of the following encroachment or unauthorised development, namely:-
((a) encroachment on public land except in those cases which are covered under clauses (a) and (b) of sub-section (1) of section 3;
(b) removal of slums and jhuggi jhompri dwellers and hawkers and urban street vendors, in accordance with the relevant policies approved by the Central Government for clearance of land required for specific public projects.
13. I have seen exhibits PW1/3 - PW1/7 which are photographs of suit property. The impugned property is a multi storey building and cannot be called a jhuggi in any manner. The suit property is not jhuggi or does not come under the jhuggi jhompri cluster or farm house or school dispensaries etc. as mentioned in the Delhi Special Law Act therefore defendant No.5, 6 and 7 cannot take advantage of this Act for perpetuating their unauthorized or wrongful Act.
14. Defendant No.5 to 7 has further contended that plaintiff has no locus standi to file the suit although this issue was also not framed but in that respect, it is suffice to say that plaintiff has alleged that cracks have been developed in his property due to 13 unauthorised construction raised by defendant No.5 to 7 and therefore he has valid cause of action and locus standi to file the present suit. However, plaintiff has not been able to prove that cracks have been developed by the unauthorised construction over the suit property because even photographs filed by plaintiff are not showing the cracks, plaintiff himself has admitted that his building is 60-65 years old and in view of this admission it cannot be safely concluded that if at all any cracks have been developed, then they developed because of unauthorised construction over the suit property. Moreover, although D1W1, witness from DDA in his evidence has deposed that he inspected the suit property and found cracks have been developed due to construction over the suit property, but has not filed any such inspection report. Defendant No.5-7 have further contended that suit property comes under Lal Dora and hence building bye-laws are not applicable but defendant No.5 to 7 have not shown any document or proof showing that the suit property comes under Lal Dora therefore this contention of defendant has no merits.
15. The plaintiff has sought second relief of mandatory injunction for directions to defendant No.1 to 4 to ensure that no further fresh illegal and unauthorized construction is carried out by defendant No.5 to 7 although the plaintiff has sought this relief of 14 mandatory injunction but from the relief it is clear that this is the relief of permanent injunction and not mandatory injunction. The above said relief cannot be granted by this court on the ground that relief of injunction is equitable and discretionary relief and the court cannot by passing injunction supervise the unauthorized construction being carried out at various places. MCD and DDA is statutory authority and they are well authorised to take action under building bye-laws wherever unauthorized construction is carried on. The plaintiff is asking 3rd relief of mandatory injunction seeking directions of the defendant No.1 to 4 to take departmental action against the erring officials responsible for permitting/allowing defendant No.5 to 7 to raise illegal and unauthorised construction in the suit property however no evidence has been adduced on behalf of the plaintiff to prove the negligence of responsible officials for permitting defendant No.5 to 7 to raise illegal and unauthorised construction therefore this relief cannot be granted. Hence, in view of the above discussion plaintiff is entitled to decree of mandatory injunction as prayed in para (a) of prayer clause and therefore, the defendant No.5-7 are directed to demolish the unauthorized construction from the suit property within 45 days from the date of decree and failing which MCD is directed to demolish the unauthorized construction over the suit property at the expenses of defendant No.5-7.
1516. ISSUE NO. 4:
Plaintiff has sought relief of permanent injunction seeking that the defendant No.5 to 7 be restrained permanently carrying on any illegal and uanuthorised building construction activity. It is well established law that no person can construct or raise any construction in building without any sanction from the concerned departments wherever applicable therefore defendant No.5 to 7 are restrained from raising unauthorized construction without obtaining permission from the appropriate authority.
17. ISSUE NO. 5:
In view of the findings on issue No. 1 to 4, suit of the plaintiff is partially decreed. No relief can be sought from defendant No.3 & 4, they are neither necessary nor performa parties. Therefore, suit is decreed against defendant No.2, 5, 6 and 7 only and the defendant No.5-7 are directed to demolish the unauthorized construction from the suit property within 45 days from the date of decree and failing which MCD is directed to demolish the unauthorized construction over the suit property at the expenses of defendant No.5-7 and defendant No.5 to 7 are restrained from raising unauthorized construction without obtaining permission from the appropriate authority. Parties shall bear their own costs. Decree 16 sheet be prepared accordingly. File be consigned to record room.
(RACHNA T. LAKHANPAL) CIVIL JUDGE: DELHI Announced in open court today i.e. on 31.10.2007.