Delhi District Court
Shri Ashok Pawha vs Shri Pawan Kumar on 19 September, 2018
In the Court of Shri V.K. Gautam : Additional Senior Civil
Judge of Central District at Tis Hazari Courts, Delhi
Suit No.95534/2016
In the matter of :-
1. Shri Ashok Pawha,
S/o Late Shri Jagdish Raj,
R/o 9162/4, Multani Dhanda,
Paharganj, New Delhi-110055
2. Shri Naveen Wasan,
S/o Late Shri Kewal Kumar Wason,
R/o 9179/4, Multani Dhanda,
Paharganj, New Delhi
3. Shri Dinesh Kumar,
S/o Late Shri Bhim Shankar,
R/o 9200/4, Third Floor,
Multani Dhanda, Paharganj,
New Delhi
........Plaintiffs
VERSUS
1. Shri Pawan Kumar,
S/o Late Shri C.M. Gupta
2. Shri Parmod Kumar,
S/o Late Shri C.M. Gupta
Both Partners of M/s Munna Lal Tarachand,
At 9161/4, Multani Dhanda, Paharganj,
New Delhi-110055
3. Smt. Rekha Gupta,
W/o Shri Pawan Kumar
All Residents of H.No.21/20,
Shakti Nagar, Delhi-110007
CS No.95534/16 Page no. 1 of 13
4. North Delhi Municipal Corporation,
Service to be effected through its Commissioner,
Shyama Prasad Mukherjee Civic Centre,
Jawahar Lal Nehru Marg,
New Delhi-110002
5. S.H.O.,
Police Station Nabi Karim,
Delhi-110055
.....Defendants
Date of institution : 25.03.2014
Reserved for Judgment : 15.09.2018
Date of decision : 19.09.2018
Suit for Permanent and Mandatory Injunction
JUDGMENT
1. This is a suit for permanent and mandatory injunction for restraining the defendants no.1 to 3 and their agents etc. from raising any unauthorized and illegal construction and installing mobile tower at the roof of the third floor of the property No.9161/4, Multani Dhanda, Paharganj, New Delhi-110065 (hereinafter referred to as 'the suit property'), more particularly shown in the photographs as well as in the site plan attached with the plaint and for direction to the defendants to remove the illegal and unauthorized construction in the shape of platform and CS No.95534/16 Page no. 2 of 13 base of mobile tower from the roof of the suit property. Plaintiffs' Case
2. In brief, the case of the plaintiffs is that the plaintiffs are residing in Street no.4, Multani Dhanda, Paharganj, New Delhi- 110055 along with their family members. The defendants no. 1 to 3 are the owners and occupiers of the building i.e. the suit property which is a four storey constructed property and the defendants no.1 to 3 are doing the business on the ground floor under the name and style of M/s Munna Lal Tarachand. The plaintiff no.1 is a heart patient besides other ailments and has undergone by-pass surgery. On 25.02.2014, the defendants no.1 to 3 with an intention to install mobile tower on the terrace of the third floor of his property has started raising platform without any permission/sanction from the defendants no. 4 and 5. It is further stated on 15.03.2014, the defendants no.1 to 3 again started installing the mobile tower and for this purpose had already installed/erected major portion of the mobile tower which is quite evident from the photographs attached with the plaint. It is further stated that as per the various authorities of the Hon'ble CS No.95534/16 Page no. 3 of 13 High Court of Delhi, no mobile tower can be installed at the residential area as the installation of the same caused serious health hazard to the residents and neighbours and also cause serious problems for the birds also as the radiation comes from the tower of very high range which cause serious heath problem to the immediate neighbours. It is further stated that for the installation of the mobile tower, the generator set also used to be installed and the same also causes serious noise and air pollution as well. The suit property is very old constructed property and cannot in any manner bear the load/weight of the huge mobile tower intended to be installed by the defendants no. 1 to 3. It is further stated that by putting an extra load on the building can endanger the life of the plaintiffs who are the immediate neighbours as well as to the public at large. The defendants no.1 to 3 have not obtained any permission/sanction from any of the authorities including the defendants no.4 and 5 for raising illegal and unauthorized construction and installing mobile tower. The plaintiffs approached the defendants no.1 to 3 and also made complaints to the defendants no. 4 and 5 but all in vain. Hence, the present suit.
CS No.95534/16 Page no. 4 of 13 Defendants' Case
3. The defendant no.4/North DMC has filed its written statement wherein it is stated that the suit of the plaintiffs is barred by the provisions of Section 477/478 of the DMC Act for want of service of statutory notice. The present suit appear to have been filed by the plaintiffs to settle the personal vendetta/scores between him and the defendants no.1 and 2 and the defendant no. 4 has been unnecessarily dragged therein for settling the dispute between the parties. It is further stated that the unauthorized construction in the shape of installation of tower at terrace/roof top i.e. third floor in the suit property without prior permission has been booked vide file no.107/B/UC/SPZ/14 dated 11.04.2014 and a show cause notice dated 11.04.2014 has already been issued under Section 343/344 (1) of the DMC Act in the name of the defendant no.1 and M/s. Reliance Jio thereby requiring them to show cause within three days as to why action as contemplated under law may not be taken. The defendant no.4 has denied the other allegations of the plaint and has prayed CS No.95534/16 Page no. 5 of 13 for dismissal of the suit.
4. The defendants no. 1 to 3 have not filed their written statement. They were proceeded ex-parte vide order dated 14.01.2016.
5. Replication has been filed by the plaintiffs to the written statement of the defendant no.4 wherein the contents of the plaint have been reiterated and the contentions of the defendant no.4 made in its written statement have been denied except the admissions made.
Issues.
6. Vide order dated 26.10.2016 the following issues were framed by for trial :
1 Whether the plaintiff is entitled for the decree of permanent injunction as prayed in the plaint? OPP 2 Whether the plaintiff is entitled for the decree of mandatory injunction as prayed in the plaint? OPP 3 Whether the suit of the plaintiff is barred by the provisions of Section 477/478 of the DMC Act for want of statutory notice? OPD-4 4 Relief.
CS No.95534/16 Page no. 6 of 13 Plaintiff's Evidence
7. The plaintiff no.1 has examined himself as PW1 who in his affidavit in evidence Ex.PW-1/A has stated and reiterated on oath the contents of the plaint. He has relied upon certain documents. Ex.PW1/1 is the site plan. Ex.PW1/2 (colly) are copies of the medical record of the plaintiff no.1. Ex.PW1/3 is copy of the complaint dated 26.02.2014 and Ex.PW1/4 (colly) are its postal receipts. Ex.PW1/5 is copy of the complaint dated 15.03.2014. Ex.PW1/6 (colly) are the photographs showing installation of illegal mobile tower. Ex.PW1/7 is copy of the complaint dated 18.03.2014.
Defendant's Evidence
8. No evidence has been led on behalf of the defendant no.4/North DMC despite opportunity, therefore, the defendant evidence was closed vide order dated 13.02.2018.
9. Final arguments have been heard and record has been perused.
CS No.95534/16 Page no. 7 of 13
10. Now I shall give my issue-wise findings.
Findings.
Issues no.1 and 2 :
The issues no.1 and 2 are taken up together as they are interconnected and require appreciation of common facts and evidence. The onus to prove these issues was upon the plaintiffs.
PW-1 in his examination-in-chief has reiterated and reaffirmed the averments made by the plaintiffs in the plaint. The testimony of the PW-1 is also corroborated by the fact that the defendant no.4/North DMC has stated in its written statement that it has booked the unauthorized construction which is in the shape of installation of the mobile tower on the terrace of the third floor of the suit property and the defendant no.4 has also issued a notice under Section 343/344 of the DMC Act to the defendant no.1 and M/s. Reliance Jio. The plaintiffs have also proved their complaints, Ex.PW1/3, PW1/4, PW1/5, PW1/6 and PW1/7 which were given by them to the concerned authorities for their grievances regarding installation of the mobile tower by the defendants no.1 and 2.
The plaintiff no.1 has also proved his medical record, Ex.PW1/2 CS No.95534/16 Page no. 8 of 13 (colly.) to show that he was suffering from various ailments such as high blood pressure etc. The plaintiffs have also proved the site plan, Ex.PW1/1.
11. No evidence has been led on behalf of the defendants no.1 to 3 to controvert the case of the plaintiffs. The case of the plaintiffs from the side of the defendants no.1 to 3 has remained uncontroverted and unchallenged. The defendants no.1 to 3 have not led any evidence to prove that they have obtained the permission from the defendants no.4 and 5 for installation of the mobile tower on the terrace of the third floor of the suit property. There is a merit in the contention of the learned counsel for the plaintiffs that the installation of the mobile tower can cause serious health hazard to the nearby residents and immediate neighbours and it can also cause serious noise and air pollution as well. The testimony of the PW-1 with regard to the suit property being old constructed and cannot bear extra load of the huge mobile tower has also gone unrebutted. Therefore, the plaintiff has been able to discharge the onus of these issues. Accordingly, the issues no.1 and 2 are decided in favour of the plaintiffs and against the defendants.
CS No.95534/16 Page no. 9 of 13 12. Issue No.3:
The burden to prove this issue was upon the defendant no.4. The defendant no.4 has not led any evidence to discharge the onus of this issue.
13. It is relevant to quote Section 477/478 of the DMC Act which is as under :
"Section 477 of Delhi Municipal Act, 1957- Protection of action of the Corporation, etc. - No suit or prosecution shall be entertained in any Court against the 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, for anything which is in good faith done or intended to be done, under this Act or any rule, regulation or bye-law made thereunder.
......
"478 (1) - No suit shall be instituted against 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 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 bye-law 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 CS No.95534/16 Page no. 10 of 13 person, unless notice in 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 sub-section (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 sub-section (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."
14. On the perusal of the above provisions, it is clear that the giving of the notice is not required in case where the relief claimed is in respect of seeking an injunction of which the object would be defeated by giving of the notice or the postponement of the institution of the suit. In the present case, the plaintiff has sought the relief of injunction by alleging that the defendants no.1 to 3 are raising unauthorized construction of the platform for installing a huge mobile tower at the terrace of the third floor of the suit property. Therefore, as the relief claimed by the plaintiff CS No.95534/16 Page no. 11 of 13 is for seeking injunction against the unauthorized construction and installation of the mobile tower, therefore, the giving of the notice before filing of the suit was not mandatory and was exempted in view of the above provisions. Hence, the issue no.3 is decided in favour of the plaintiffs and against the defendant no.4.
Relief
15. In view of my aforesaid findings on the aforesaid issues, the suit of the plaintiffs is decreed with costs and the decree of permanent injunction is passed in favour of the plaintiffs and against the defendants no.1 to 3 thereby restraining the defendants no.1 to 3 and their agents etc. from raising any unauthorized and illegal construction and installation of mobile tower at the roof of the third floor of the suit property i.e. property bearing no.9161/4, Multani Dhanda, Paharganj, New Delhi-110065, more particularly shown in the photographs as well as in the site plan, Ex.PW1/1 attached with the plaint. The decree of mandatory injunction is also passed in favour of the plaintiffs and against the defendants no.1 to 4 thereby directing the CS No.95534/16 Page no. 12 of 13 defendants no.1 to 4 to remove the illegal and unauthorized construction in the shape of platform and base of mobile tower from the roof of the third floor of the suit property bearing no.9161/4, Multani Dhanda, Paharganj, New Delhi-110065. Decree sheet be prepared accordingly. File be consigned to Record Room after due compliance. VINOD Digitally signed by VINOD KUMAR KUMAR GAUTAM Date: 2018.09.19 Announced in the Open Court on 19.09.2018 GAUTAM 16:03:24 +0530 (V.K. Gautam) Additional Senior Civil Judge Central District: Tis Hazari Courts: Delhi CS No.95534/16 Page no. 13 of 13