Delhi District Court
Prem Kajila vs B Mohan Kumar on 5 March, 2024
IN THE COURT OF SENIOR CIVIL JUDGE CUM RENT
CONTROLLER (WEST), TIS HAZARI COURTS, DELHI
Presided by : Sh. Himanshu Raman Singh
Civil Suit No.8180/16
CNR No.DLWT-03-000376-2013
Counter Claim No. 10/2024/13
CNR No. DLWT-03-000578-2024
B. Mohana kumar
S/o Late Sh. T.K. Balakrishna Pillai
DA/82-D, DDA Flats (LIG),
Hari Nagar,
New Delhi-110064. ..... Plaintiff
Versus
1. Sh. Prem Kajla (counter-claimant)
DA/82-D, DDA Flats (LIG),
Ground Floor, Hari Nagar,
New Delhi-110064.
2. Municipal Corporation of Delhi
Service of summons to be effected through
The Deputy Commissioner (West)
Sivaji Enclave, Rajouri Garden,
New Delhi-110027.
3. The Deputy Conservator of Forest & Tree Officer
(West)
Near Birla Mandir
New Delhi-11001.
4. The Station House Officer
Hari Nagar Police Station
Hari Nagar, New Delhi-110064.
Civil Suit No. 8180/2016 B. Mohanakumar Vs. Prem Kajla & Ors.
Counter Claim No. 10/2024/13 Prem Kajla & Ors.Vs. B. Mohanakumar Page 1 of 32
5. Ms. Shweta Kajla
D/o Sh. Prem Kajla
DA/82-B, DDA Flats (LIG),
Ground Floor, Hari Nagar,
New Delhi-110064. ...... Defendants
Date of Filing : 22.05.2013
Date of Judgment : 05.03.2024
Suit Decision : Partly decreed
Counter-claim Decision : Dismissed
JUDGMENT
1. Vide this common judgment, the suit of the plaintiff and the counter-claim shall be adjudicated upon.
2. The present suit has been instituted by the plaintiff seeking decree of mandatory injunction and prohibitory injunctions. The plaintiff has prayed for following reliefs :
(a). Defendants no. 1 and 5 be directed to remove the illegal portion of the bathroom extended to the common shaft of the building DA/82.
(b). Defendants no. 1 and 5 may be directed not to make any construction and put lock and key on the public land illegally occupied and enclosed by them and keep it open as public land for the common use of the residents.
(c). Defendant no. 1 and 5 may be restrained from misusing the public land and destroying the plants and trees standing thereon and outside in the footpath.
Civil Suit No. 8180/2016 B. Mohanakumar Vs. Prem Kajla & Ors.
Counter Claim No. 10/2024/13 Prem Kajla & Ors.Vs. B. Mohanakumar Page 2 of 32(d). Direct the defendant no. 1 and 5 to clear the common drainage in front of the flat to enable MCD staff to clean it as and when it is necessary.
(e). Direct defendants no. 1 and 5, their agents and representatives not to indulge in any illegal activities causing inconvenience or nuisance to the plaintiff and his family members.
(f). Direct defendants no. 2 to 4 to act according to law by using their authority to protect the rights and interests of the plaintiff.
(g). Cost of the suit.
3. The brief facts of the case as narrated by the plaintiff are as under:
3.1. The plaintiff had purchased the property bearing no.
DA/82-D, DDA Flats (LIG), First Floor, Hari Nagar, New Delhi- 110064 (hereinafter referred as to 'Suit Property') in the year 1979 from DDA. He with his family has been living there right from the inception of the colony in 1979.
3.2. It has been averred that defendant no. 1 and 5 are the present occupants of flat No. DA/82-B, DDA Flats (Ground Floor) Hari Nagar, just below the flat of the plaintiff since 2001. After purchasing the ground floor flat by defendant no. 5 in the year 2004, defendant no.1 slowly started his illegal activities Civil Suit No. 8180/2016 B. Mohanakumar Vs. Prem Kajla & Ors.
Counter Claim No. 10/2024/13 Prem Kajla & Ors.Vs. B. Mohanakumar Page 3 of 32causing inconvenience and nuisance to the plaintiff, as detailed below :-
(a) Defendant no. 1 had encroached upon the MCD land adjacent to his flat measuring approximately 500 sq. ft meant for common benefit and enjoyment of the residents in the area for his personal and private use and enclosed it with boundary. He had put up a gate for his entry and exit with bolt, lock and key to establish his possession and control over it
(b) Defendant no. 1 had destroyed most of the plants and trees the plaintiff had grown in the government land with the help of DDA's horticulture department when he was the Secretary of RWA of the area (Agency No.95) Earlier Defendant No. 1 had uprooted/destroyed trees and plants one by one clandestinely in the vicinity as if it were his private property Recently in the month of December-January 2013 he had got cut more than 50% of a Neem Tree and Christmas tree in the enclosed area. He had also tried to cut a big Palm Tree standing therein. He had tried to uproot a plant outside on the footpath.
The plaintiff repeatedly requested him not to destroy the plants and trees standing in the public land as he wanted.
(c) Defendant no. 1 had extended his bathroom to the common shaft of the building illegally and clandestinely, blocking the pipe lines of Plaintiff's flat which will be a Civil Suit No. 8180/2016 B. Mohanakumar Vs. Prem Kajla & Ors.
Counter Claim No. 10/2024/13 Prem Kajla & Ors.Vs. B. Mohanakumar Page 4 of 32permanent problem for the plaintiff and his family The Plaintiff came to know of this illegal construction when he opened the shaft door in December 2012.
(d) Some time back, defendant no. 1 had put up a big water tank at the side of the common staircase entrance of the plaintiff and other flat-owners, and the Plaintiff was forced to get it removed later.
(e) Predecessor of defendant no. 1 had earlier extended 3-4 feet of the front portion of his flat covering the common drainage line completely with a gate and 3 steps on the foot path of the colony This has caused complete blockade in the drainage and nobody is able to clean the drainage, so much so there is no outlet for flow of water during the rainy season 3.3 It has been averred that the plaintiff's and defendants' family had good relation till a few months back, but the defendant started construction work on the adjacent government land to make it a private family resort by raising walls after removing the grills etc on 17.3.2013. When the Plaintiff objected to the laborers working on the construction, Defendant 1 came and abused the Plaintiff and threatened him with dire consequences and asked the labours to continue the work. The Plaintiff had to call the Police Control Room No 100 to get the work stalled. Even though one Mr. Kalan Singh, ASI Civil Suit No. 8180/2016 B. Mohanakumar Vs. Prem Kajla & Ors.
Counter Claim No. 10/2024/13 Prem Kajla & Ors.Vs. B. Mohanakumar Page 5 of 32from Hari Nagar Police Post visited the Plaintiff after making 3 calls to the Police Control Room, he was reluctant to stop the work saying that it was not the Police job to stop illegal work on MCD land. But the plaintiff pressed him to take action and on his insistence he went and stopped the work of boundary wall Thereafter he was with defendant no. 1 for more than half an hour to pacify him. It has been averred that ASI had not recorded any statement of the Plaintiff The Plaintiff therefore made a written complaint on the same day to in-charge of Hari Nagar Police Post at DA Block, which was recorded at diary No 13PP on 17.03.2013 A copy of the complaint was forwarded to the Additional Commissioner of Police (West) and the Supt Engineer, South Delhi Municipal Corporation for information and necessary action.
3.4 It has been stated that the Plaintiff went to meet the Deputy Commissioner of South Delhi Municipal Corporation, but he was not available there. His P A directed the plaintiff to meet Shri R.K Ailawadi, Supt Engineer to whom the plaintiff explained the problem faced by him. He immediately instructed Asst. Engineer of the area over the phone to take necessary action, and gave him the plaintiff's name and address and also his mobile telephone number. Thereafter one Corporation employee visited the site in the afternoon The corporation employee was with Defendant No.1, and later one Jr. Engineer Mr. Joginder also had joined him. Later the corporation staff visited the Civil Suit No. 8180/2016 B. Mohanakumar Vs. Prem Kajla & Ors.
Counter Claim No. 10/2024/13 Prem Kajla & Ors.Vs. B. Mohanakumar Page 6 of 32Plaintiff's flat also. The plaintiff explained to them the problems faced by him and showed the illegal activities of Defendant No. 1 including a projection in the shaft but they have not done anything to solve the problem of the plaintiff except saying that they had advised Defendant No. 1 not to raise the wall on the government land illegally occupied by him. It is stated that in the meantime, Defendant No. 1 continued to make the construction pucca by concreting 50% of government green land till the road, covering the foot path of the main road for three days continuously. The Plaintiff contacted Jr. Engineer and Asst. Engineer on their mobiles and informed them of the development, but they closed their eyes and did not do anything Mr. V.D. Sharma, Asst. Engineer did not even turn up in spite of his promise that he would visit the site of the plaintiff on 20.03.2013.
3.5 It has been averred that on 03.04.2013 in response to Plaintiff's marking a copy of his complaint dated 17.3.2013 to Additional Commissioner of Police (West). Mr Bhagwan Sahai, HC and Mr. Ashok Kumar, Constable from Hari Nagar Police Post visited the Plaintiff and enquired about the complaint The Plaintiff explained the problem faced by him and showed the illegal activities of the defendant. They also visited the house of Defendant No. 1 Thereafter on 7.4.2013 the Plaintiff personally met Mr. Shivdutt Jaimini, SI In-charge Hari Nagar Post and discussed the matter with him, but nothing was heard thereafter.
Civil Suit No. 8180/2016 B. Mohanakumar Vs. Prem Kajla & Ors.
Counter Claim No. 10/2024/13 Prem Kajla & Ors.Vs. B. Mohanakumar Page 7 of 323.6. It has been averred that defendant no. 1 has illegally occupied a stretch of government land on one side of the building and extended 3-4 feet of front portion to the drainage covering it completely on the other side. When the Plaintiff on the first floor cleans the parapet and grills once in a while, and waters the flower pots occasionally some water automatically falls on the government land to which defendant no. 1 started to take exception. The water will naturally fall on the ground which is public land meant for common use of all The defendant cannot take exception to watering the plants and cleaning the parapet by the plaintiff occasionally. This has been the practice prevailing in the past. Nonetheless the Plaintiff and his family members always ensured that none of Defendant no. 1's family members is outside in the ground when they clean the area and water the plants.
2.7. It has been averred that the Plaintiff had objected to the Defendant no. 1's illegal actions of destroying the trees and plants of the colony and stopped his plan to convert the government land into his private property as a resort, the defendant and his family members started fighting and shouting at the Plaintiff, and objecting to their cleaning the parapet and grills and putting water in the flower pots Defendant No. 1 and his family members had no reason to object to the Plaintiff's Civil Suit No. 8180/2016 B. Mohanakumar Vs. Prem Kajla & Ors.
Counter Claim No. 10/2024/13 Prem Kajla & Ors.Vs. B. Mohanakumar Page 8 of 32action as he had no independent right on the colony's common land.
2.8. It has been further stated that all these illegal acts of Defendant No. 1 are causing a continuous nuisance, problem and inconvenience to the plaintiff and his family who are law abiding citizens and they want a peaceful existence, and the authorities concerned are not taking any action to protect his rights Plaintiff had caused to issue a legal notice dated 11.04. 2013 to defendant no. 1 asking him not to indulge in illegal activities and remove the illegal portion of the bathroom extended to the common shaft of the building which is a permanent problem, restrain from cutting or uprooting any tree and plant on the government land, and putting bolts and locks on the gate to the enclosed area of public land for his private use, and clear the common drainage line in front of the flat to enable MCD staff to clean it regularly. Defendant no. 1 was further called upon to comply with the requirements in the notice within 15 days and give an undertaking that he and his family members will not indulge in any illegal activities, inconvenience, harassment and nuisance to their neighbours. The notice was duly served on him. Instead of complying with the notice, he sent an evasive reply raising some unfounded allegations against the plaintiff. A copy of the notice had also been delivered to the Defendants 2, 3 and 4 on 17.04.2013, but all of them ignored it and they did not take any action to redress the Plaintiff's grievances. The plaintiff Civil Suit No. 8180/2016 B. Mohanakumar Vs. Prem Kajla & Ors.
Counter Claim No. 10/2024/13 Prem Kajla & Ors.Vs. B. Mohanakumar Page 9 of 32personally met Mr. R. N. Sharma, DANICS, Deputy Commissioner of South Delhi Municipal Corporation (West) on 30.4 2013 and discussed the matter and handed over again a copy of his earlier complaint dated 17.3.2013 and legal notice dated 11.4.2013. He had also shown the photographs of bathroom extended to the shaft of the building, trees cut in the MCD land, etc. He immediately passed on the complaint and copy of the legal notice to one Mr. R.P. Wadhwa, AE, who was present in the meeting and assured the Plaintiff that his grievances will be solved. But till date nobody approached the Plaintiff from SDMC nor was any action taken by them. On 30.4.2013 Plaintiff also met Mr. V. Ranganathan, IPS, Additional Commissioner of Police (West) and handed over a copy of the legal notice again. He promptly marked the same to the SHO of Hari Nagar Police Station. Thereafter Hari Nagar Police Post In-charge Mr Shivdutt Jaimini, S.I. along with a constable visited the Plaintiff's house on 08.05.2013 after 8.30 p.m. and enquired the matter again. As desired, the plaintiff showed them the illegal occupation of government land, how the trees on the public land pruned, bathroom extended to the common shaft of the building, etc. by Defendant No 1. Thereafter on 12.05.2013 at about 8.30 p.m. Mr. Shivdutt Jaimini got collected two photographs from the plaintiff showing the misdeeds of the defendant (Photograph of bathroom extended to the shaft and trees pruned by Defendant No. 1). Plaintiff also contacted Mr. Rajagopal Prashant, IFS Deputy Conservator of Forest and Tree Officer (West) over his mobile Civil Suit No. 8180/2016 B. Mohanakumar Vs. Prem Kajla & Ors.
Counter Claim No. 10/2024/13 Prem Kajla & Ors.Vs. B. Mohanakumar Page 10 of 32phone on 30.04.2013 and enquired about the copy of the legal notice delivered at his office on 17.04.2013 and action taken if any. Thereafter, Tree Protection Cell In-charge Mr. Dharamvir Singh visited the site on 02.05.2013 and saw the trees cut by Defendant No. 1 and took a statement from the plaintiff and the photographs of trees.
3.9. It has been averred that the Plaintiff and his family are entitled to use the common portions, common services and common area of the building in the colony along with other co- allottees of the building. Defendant No.1 and his people cannot deny these legitimate rights of the Plaintiff. Defendant No.1 and his family members have no right to object to enjoyment of common facilities provided by the government by others.
3.10. The plaintiff has averred that the behavior of defendant no.1 is contumacious and defendants 2 to 4 are helpless and silent spectators Defendants 2, 3 and 4 are law enforcement authorities who have a duty to administer and rule the people according to law and for common good. But they have miserably failed in their duties by allowing defendant 1 to indulge in his illegal activities.
4. Written Statement has filed by the defendant no.1 Mr. Prem Kajla, wherein he made the following averments:-
4.1 The present suit is full of blatant lie, concocted stories and has been filed by the plaintiff with malafide intentions Civil Suit No. 8180/2016 B. Mohanakumar Vs. Prem Kajla & Ors.Counter Claim No. 10/2024/13 Prem Kajla & Ors.Vs. B. Mohanakumar Page 11 of 32
to harass him. The present suit has been filed with the malafide intention to harass the defendant no.1 with a view to buy his flat. Plaintiff has been causing mental torture and harassment on various accounts to the defendant no.1 with a view to buy his flat and create problem for him so that he get the Flat sold out to him.
4.2. It has been stated that the plaintiff himself is guilty of raising huge unauthorized construction in his own flat which is shown in Four Photographs of his Flat No.DA/82D, DDA Flats (LG), Hari Nagar, New Delhi, hence the plaintiff has not come to the court with clean hands and is not entitled to the relief of injunction, which is a settled law. The conduct of the plaintiff itself is tainted with malafides and ill motive, therefore, he cannot maintain the present suit against the defendant no.1. The injunction rests on the maxim that who seeks equity must do equity, therefore, a person seeking an injunction must come with clean hands and he must be able to satisfy the court that his own acts and dealings in the matter are fair and honest and free from any taint of fraud or illegality. In the present case the plaintiff is a habitual litigant and is a quarrelsome person who has no good relation with any neighbour. It is submitted that the plaintiff has raised illegal construction in his own Flat comprising of huge hall by covering a balcony measuring 32' x 8' approx towards the main street i.e. south side which is shown in the photographs, another balcony on the Annexure-A and eastern side measuring 32' x 3' which is shown in the photographs, Annexure-B. The Civil Suit No. 8180/2016 B. Mohanakumar Vs. Prem Kajla & Ors.
Counter Claim No. 10/2024/13 Prem Kajla & Ors.Vs. B. Mohanakumar Page 12 of 32same was constructed illegally by him in the month of February- March, 2013. Apart from this the plaintiff has also constructed a room on the two garages which are the Ground Floor one of the plaintiff and one of the second floor owner.
3.3 Defendant no. 1 has further stated that the plaintiff has taken the undue advantage of the old age of the defendant no.1, who is ailing and is about 75 years of age. The totality of the conduct of the plaintiff shows that the present suit has been filed with the malafide intention and motive to harass and cause mental torture to defendant no.1 who is senior citizen of aged about 75 years and is suffering from various old age ailments. The plaintiff has concealed the material fact of his huge unauthorized construction raised by him in his own Flat from the Hon'ble Court and has filed the present false suit with intention to harass the the malafide plaintiff, therefore, the suit of the plaintiff is liable to be rejected on this ground alone.
3.4 It has been stated that the plaintiff has got personal interest in the matter since he wants to buy the flat of the defendant no.1 by compelling him to leave the flat by harassing him and creating various kind of problems for him and his ailing wife.
Civil Suit No. 8180/2016 B. Mohanakumar Vs. Prem Kajla & Ors.
Counter Claim No. 10/2024/13 Prem Kajla & Ors.Vs. B. Mohanakumar Page 13 of 325. Separate Written Statement has filed by the defendant no.2 (MCD), wherein it made the following averments:-
5.1 The suit of the plaintiff is barred by the provisions of Section 477/478 of the D.M.C. Act, 1957 for want of service of statutory notice upon the answering defendant and as such the suit is not maintainable and is liable to be dismissed.
5.2 It is stated that the present suit as filed by the plaintiff is also legally not maintainable in the present form and manner as the Commissioner, South Delhi Municipal Corporation is the head of the SDMC and as settled proposition of law the Corporation can sue or be sued through its Commissioner, hence the suit is not maintainable and deserves for outright dismissal.
5.3 It is stated that the plaintiff has not come to this court with clean hands and has not stated the true facts and suppressed the true material facts from court. It is submitted that the plaintiff has wrongly and falsely dragged the answering defendant in the present suit. It is submitted that the property no.DA-82-D, DDA Flats, Hari Nagar, New Delhi, was inspected by the area JE (B) on 01.08.2013 and during inspection, it was found that the plaintiff Sh. B. Mohan Kumar had carried out unauthorized construction in property no.DA-82D, DDA Flats, Hari Nagar, New Delhi by way of excess coverage at FF against the standard DDA building plan, which has been booked vide File No.EE(B)-I /WZ/UC/2013/448 dated 08.08.2013. It has been Civil Suit No. 8180/2016 B. Mohanakumar Vs. Prem Kajla & Ors.Counter Claim No. 10/2024/13 Prem Kajla & Ors.Vs. B. Mohanakumar Page 14 of 32
further submitted that the defendant no.1 Sh. Prem Kajla had also carried out unauthorized construction in property no. DA-82-B, DDA Flats, Hari Nagar, New Delhi, by way of making cupboard in open shaft which has also been booked vide File No.EE(B)- I/WZ/UC/2013/430 dated 02.08.2013. It has been further submitted that further necessary action against the aforesaid unauthorized construction carried out by both the plaintiff as well as defendant no.1 shall be taken in due course of time under relevant provisions of the DMC Act after following process of law.
6. Separate Written Statement has filed by the defendant no.3 (Deputy Conservator of Forest & Tree Officer), wherein he made the following averments:-
6.1 The present suit is not maintainable against the answering defendant as the plaintiff has approached the court with unclean hands by suppressing material facts, hence the suit is liable to be dismissed.
6.2 The present suit is bad for mis-joinder and non-
joinder of necessary parties hence the present suit is liable to be dismissed out rightly.
6.3 No notice under Section 80 CPC has been served upon the defendant which is a statutory requirement before filing the present suit.
Civil Suit No. 8180/2016 B. Mohanakumar Vs. Prem Kajla & Ors.
Counter Claim No. 10/2024/13 Prem Kajla & Ors.Vs. B. Mohanakumar Page 15 of 326.4 The verification clause of the affidavit of the plaintiff which he has filed in support of the plaint is also defective one, as it has not been verified in accordance with the rules of the Hon'ble High Court of Delhi.
7. Despite directions, defendant no.4 has failed to file written statement and has also failed to appear before the court. Therefore, defendant no.4 was proceeded ex-parte on 25.11.2021.
8. Written Statement has filed by the defendant no.5 Ms. Shweta Kajla, wherein she made the following averments:-
8.1 There is no cause of action arisen in favour of the plaintiff and against the defendant no.5 for filing the present suit. Therefore, the suit is liable to be dismissed under Order 7 Rule 11 CPC with heavy costs.
8.2 The suit is barred by the law of limitation against the defendant no.5. Therefore, the suit is liable to be dismissed.
8.3 The plaintiff has not approached the court with clean hands. The plaintiff has not disclosed all the true material facts to the court upto the time when the defendant no.5 has been made as a defendant in the present suit.
8.4 The suit is not maintainable as per Clause (f), (i) and
(j) of Section 41 of the Specific Relief Act, 1963. The defendant no.5 has not caused any nuisance to the plaintiff. The conduct of the plaintiff is itself condemnable and shameful, which disentitles Civil Suit No. 8180/2016 B. Mohanakumar Vs. Prem Kajla & Ors.Counter Claim No. 10/2024/13 Prem Kajla & Ors.Vs. B. Mohanakumar Page 16 of 32
him for relief of any injunctions. The plaintiff has also no personal interest in the property/subject matter of the suit.
8.5 The plaintiff is not entitled for the discretionary relief of injunction since the plaintiff himself is guilty of raising unauthorized and illegal constructions in his own flat bearing No.DA-82-D, DDA Flats, First Floor, Hari Nagar, New Delhi as well as doing other wrongful acts, deeds and things. The South Delhi Municipal Corporation/ Government has already issued the show cause notice to the plaintiff in respect of the illegal and unauthorized construction as carried out by the plaintiff in his flat. The plaintiff has also filed the case/appeal before the Appellate Tribunal, MCD, at Tis Hazari Court, Delhi, which is pending adjudication before the said court. But the plaintiff has concealed such relevant facts from this court.
8.6 It has been submitted that the plaintiff had filed another suit titled as B. Mohanakumar Vs. The L.G. of Delhi and Ors., bearing suit no.612942/16 seeking directions, compensations etc., which was withdrawn by him and the same was dismissed as withdrawn with liberty to file fresh proceedings vide order dated 05.09.2017 passed by the court of Sh. Sanjay Kumar, Ld. ADJ, West, Tis Hazari Court, Delhi. It has been further submitted that during the pendency of the said suit no.612942/16, the plaintiff also approached the Hon'ble High Court of Delhi, thereby challenging the order dated 10.07.2017 of framing the issues in the said suit no.612942/16 by filing a petition titled as B. Mohanakumar Vs. DDA & Ors., bearing case CM (M) No. 918/17. The Hon'ble High Court of Delhi vide order dated 28.08.2017 has disposed off the said petition CM (M) Civil Suit No. 8180/2016 B. Mohanakumar Vs. Prem Kajla & Ors.
Counter Claim No. 10/2024/13 Prem Kajla & Ors.Vs. B. Mohanakumar Page 17 of 32No.918/17. The plaintiff has thereafter filed another false and frivolous suit for damages against the answering defendant and other persons titled as B.Mohanakumar Vs. Devender Seth & Ors. bearing suit No.1434/17, which is pending before the court of Ms. Vandana Chauhan, Ld. ADJ, West, Tis Hazari Courts for 11.04.2018. The plaintiff has concealed the said relevant details before this court. The plaintiff has malafide intention to harass and blackmail the defendant no.5 including her father with ulterior motives to extort the huge amount from them on false pretext and without just and lawful causes.
9. Plaintiff has filed separate replications to the written statements of defendant no.1,2,3 and 5, wherein he has denied all the averments made by the defendants and reiterated the averments made in the plaint.
10. From the pleadings of the parties, following issues were framed on 24.12.2014:-
(1) Whether the plaintiff is entitled to decree of Mandatory Injunction thereby directing the defendant no.1 to remove the illegal portion of his bathroom, as mentioned in para 'a' of the prayer clause? OPP (2) Whether the plaintiff is entitled to decree of Permanent Injunction thereby restraining the defendant no.1 from making any construction and putting lock and key on the public land illegally occupied and enclosed by him, as mentioned in para 'b' of the prayer clause? OPP Civil Suit No. 8180/2016 B. Mohanakumar Vs. Prem Kajla & Ors.Counter Claim No. 10/2024/13 Prem Kajla & Ors.Vs. B. Mohanakumar Page 18 of 32
(3) Whether the plaintiff is entitled to decree of permanent injunction thereby restraining the defendant no.1 from misusing the public land and destroying the plants and trees standing thereon and outside the footpath, as mentioned in para 'c' of the prayer clause? OPP (4) Whether the plaintiff is entitled to decree of mandatory injunction thereby directing the defendant no.1 to clear the common drainage in front of the flat to enable MCD staff to clean it as and when it is necessary, as mentioned in para 'd' of the prayer clause? OPP (Issue No. 2, 3 & 4 were re-framed vide order dated 21.03.2018) (5) Whether the plaintiff has concealed the material facts of his huge unauthorized construction raised by him and has not come before the court with clean hands? OPD1,2 & 3 (6) Whether the suit of the plaintiff is barred by law as no notice under Section 80 of CPC has been served? OPD3 (7) Whether the plaint does not disclose any cause of action qua the defendant no.3? OPP (8) Whether the suit of the plaintiff is barred by Section 477/478 of DMC, Act 1957? OPD2 Civil Suit No. 8180/2016 B. Mohanakumar Vs. Prem Kajla & Ors.Counter Claim No. 10/2024/13 Prem Kajla & Ors.Vs. B. Mohanakumar Page 19 of 32
(9) Whether the defendant no.1 has locus standi to file the counter claim in the present suit? OPD1 (10) Whether the defendant no.1/counter claimant is entitled to decree of mandatory injunction against the plaintiff and the defendant no.2 directing the plaintiff and the defendant no.2 to demolish the unauthorized construction raised by the plaintiff in his flat, as mentioned in para 'a' of the counter claim?
OPD1/Counter Claimant (11) Relief.
11. Vide order dated 21.03.2018, the following additional issue was framed :-
(1) Whether the suit of the plaintiff is barred in view of Section 41(f)(i)(j) of Specific Relief Act? (2) Relief.
This issue is treated as Issue No. 12 for the sake of reference and convenience.
12. In order to prove the case, Mr. B. Mohanakumar, son of Mr. T.K. Balakrishna Pillai, examined himself as PW-1, who led his evidence by way of affidavit Ex.PW-1/A. He has relied upon the following documents:-
Civil Suit No. 8180/2016 B. Mohanakumar Vs. Prem Kajla & Ors.Counter Claim No. 10/2024/13 Prem Kajla & Ors.Vs. B. Mohanakumar Page 20 of 32
Ex.PW1/1 (OSR) Conveyance Deed.
Ex.PW1/1A Site Plan alongwith area shown as front
elevation.
Ex.PW1/3 Complaint dated 17.03.2013.
Ex.PW1/4 Legal Notice.
Ex.PW1/5 Reply to the legal notice.
Ex.PW1/7 (OSR) Letter dated 03.07.1992 written to
Assistant Director, DDA.
Ex.PW1/8 (colly) Certified copies of revised assessment order dated 06.07.1993.
Ex.PW1/9 (OSR) Receipt dated 14.09.2004. (colly) Ex.PW1/11 (colly) Copy of show cause notice dated 8.08.2013 alongwith documents.
Ex.PW1/12 (colly) Reply dated 20.08.2013/21.08.2013. Ex.PW1/13 (colly) Copy of notice dated 03.06.2013 and reply of plaintiff.
Ex.PW1/14 (colly) Copy of RTI application dated 07.10.2013 (OSR) alongwith replies.
Ex.PW1/15 (OSR) Copy of orders dated 30.01.2014. Ex.PW1/16 (OSR) Copy of order of CIC dated 24.11.2014.
Mark A (colly) Ten photographs.
Mark B (colly) Twelve photographs.
Mark C (colly) Certified copy of certification dated
10.02.1993 signed by 61 residents.
PW-1 was cross-examined by the defendants at length. Thereafter, vide separate statement of plaintiff, plaintiff's evidence was closed on 25.11.2021.
Civil Suit No. 8180/2016 B. Mohanakumar Vs. Prem Kajla & Ors.
Counter Claim No. 10/2024/13 Prem Kajla & Ors.Vs. B. Mohanakumar Page 21 of 3213. In order to prove the case, Mr. Prem K. Kajla, son of Late Mr. J.C. Kajla, examined himself as DW-1, who led his evidence by way of affidavit Ex.DW-1/A. He has relied upon the following documents:
Mark D Photocopy of the plaint filed by the plaint against the defendant and other claiming damages etc. Mark E The photocopy of the legal notice of the plaintiff dated 18.10.2017.
Mark F The photocopy of my reply dated 16.11.2017 to the above legal notice of plaintiff dated 18.10.2017.
Mark G The photocopy of the postal receipt of my said reply DW-2 was cross-examined by the plaintiff at length.
14. In order to prove the case, Ms. Shweta Kajla, Daughter of Mr. Prem K. Kajla, examined herself as DW-2, who led her evidence by way of affidavit Ex.DW-2/A. She was cross examined by counsel for plaintiff.
15. Summoned witness Sh. Meer Singh, Ahlmad in the court f Sh. Pitamber Dutt, Ld. ADJ/Presiding Officer, Appellate Tribunal MCD, Tis Hazari Courts, Delhi, has examined as DW3, who has brought the original file of case bearing appeal no.817/ATMCD/2014 titled as Shri. B. Mohanakumar v. SDMC & Ors. which was filed by the plaintiff of the present case on Civil Suit No. 8180/2016 B. Mohanakumar Vs. Prem Kajla & Ors.
Counter Claim No. 10/2024/13 Prem Kajla & Ors.Vs. B. Mohanakumar Page 22 of 3220.10.2014. He has also brought the copy of case/appeal which is exhibited as Ex.DW3/1 (colly) (OSR). He has brought the copy of eight photographs as Ex. DW3/2 (colly) (OSR), copy of the site plan as Ex.DW3/3 (OSR) and copy of order dated 19.05.2022 as Ex.DW3/4 (OSR), filed by the plaintiff.
16. Thereafter, vide separate statement of counsel for defendant no.2 and counsel for defendant no.1 & 5, defendant's evidence was closed on 25.11.2021 and 08.07.2022 respectively.
17. I have heard the final arguments and gone through the record carefully. The issue-wise findings are as under:-
Issue No.1, 2, 3, 4 & 7(1) Whether the plaintiff is entitled to decree of Mandatory Injunction thereby directing the defendant no.1 to remove the illegal portion of his bathroom, as mentioned in para 'a' of the prayer clause? OPP (2) Whether the plaintiff is entitled to decree of Permanent Injunction thereby restraining the defendant no.1 from making any construction and putting lock and key on the public land illegally occupied and enclosed by him, as mentioned in para 'b' of the prayer clause? OPP (3) Whether the plaintiff is entitled to decree of permanent injunction thereby restraining the defendant no.1 from misusing the public land and destroying the plants and trees standing thereon and outside the footpath, as mentioned in para 'c' of the prayer clause? OPP (4) Whether the plaintiff is entitled to decree of mandatory injunction thereby directing the defendant no.1 to clear the common drainage in front of the flat to enable MCD staff to Civil Suit No. 8180/2016 B. Mohanakumar Vs. Prem Kajla & Ors.Counter Claim No. 10/2024/13 Prem Kajla & Ors.Vs. B. Mohanakumar Page 23 of 32
clean it as and when it is necessary, as mentioned in para 'd' of the prayer clause? OPP (7) Whether the plaint does not disclose any cause of action qua the defendant no.3? OPP
18. These issues are taken up together, as common questions of law and facts are involved in these issues.
The onus to prove these issues was upon the plaintiff.
19. It is contended by the counsels that the encroachment has already been removed on 23.01.2018 and the extension of the bathroom has been removed on 27.04.2017. It has been further stated that the Forest Department has already issued a notice.
20 The defendant no. 2 MCD filed status report Ex.PW1/D-3 in which it has been mentioned that the plaintiff carried out unauthorized construction in the shape of balconies by raising pillar on Municipal Land and by extending the room on his property at first floor bearing no. DA-82D-DDA, LIG Flats, Hari Nagar, New Delhi. Further, age of construction was found to be around 1970-1980 and therefore, as per Section 3 of the National Capital Territory of Delhi Laws (special provisions), Second Amendment Act 2017, the enforcement has been kept in abeyance.
Civil Suit No. 8180/2016 B. Mohanakumar Vs. Prem Kajla & Ors.
Counter Claim No. 10/2024/13 Prem Kajla & Ors.Vs. B. Mohanakumar Page 24 of 3221. It is contended by the Learned Counsel for the plaintiff that the unauthorized construction of the property by constructing boundary wall by defendant no. 1 has been admitted by the MCD in its status report dated 24.12.2018. It has been further contended that the defendant no. 1 has intentionally lied before this court by alleging that the plaintiff had raised illegal constructions, which is completely baseless. It has been contended that defendant no. 1 and 5 intentionally concealed the material fact of receiving show cause / demolition notices dated 21.08.2017 and 01.09.2017. It has been contended that after receiving motivated show cause notices from the defendant MCD, the plaintiff filed an appeal before the Appellate Tribunal MCD as gazetted by Hon'ble High Court in W.P.(C) No. 7135/2014. It has been contended that during the pendency of the suit, the defendant no. 1 removed the illegal portion of the bathroom extended to the common sheft of the building on 21.04.2017. Further, the illegal encroachment of the adjacent green government land was also removed by the MCD by a demolition action on 23.11.2018.
22. It has been contended by the plaintiff that the issues raised by the defendant no. 1 by way of counter-claim are not maintainable as they are based on separate cause of action.
23. Additional written submission were also filed on behalf of the plaintiff. Plaintiff has placed reliance upon judgment of Hon'ble Delhi High Court in the case titled as Shri Civil Suit No. 8180/2016 B. Mohanakumar Vs. Prem Kajla & Ors.
Counter Claim No. 10/2024/13 Prem Kajla & Ors.Vs. B. Mohanakumar Page 25 of 32Bihari Lal Jalan Vs. DDA, 104 (2003) DLT 53, decided on 18.02.2003 to submit that no boundary wall or fencing is permitted in areas of common use / land. It has been contended that the plaintiff never made any illegal construction on his property. It has been contended that additional construction had taken place in all three vertical stacks flats in 1990-1991 from defendant's flat upto the terrace of the building and the plaintiff has been paying reassessment tax to the MCD from 01.04.1991 after notifying the additions.
24. The defendants no. 1 and 5 also filed detailed written submissions. It is contended by defendant no. 1 that decree of mandatory injunction be passed against the plaintiff, thereby directing the defendant no. 2 MCD to demolish the unauthorized construction raised by the plaintiff in his flat. The plaintiff filed written statement to the counter claim. The defendant no. 5 Ms. Shweta Kajla was impleaded as defendant later on. It has been contended that the defendant no. 2 MCD inspected the property of the plaintiff and during inspection, it was found that the plaintiff had carried out unauthorized construction which was booked by the MCD. It has been contended that PW1 Sh. B. Mohan Kumar during his cross- examination admitted that the MCD officials issued him a show cause notice. During the cross-examination, PW1 was unable to explain the increase in number of rooms of his flat.
Civil Suit No. 8180/2016 B. Mohanakumar Vs. Prem Kajla & Ors.
Counter Claim No. 10/2024/13 Prem Kajla & Ors.Vs. B. Mohanakumar Page 26 of 3225. DW3 Mr. Meer Singh, Ahlmad in the court of Mr. Pitamber Dutt, Learned PO, ATMCD, appeared in the court on 08.07.2022 and produced the summoned record/document Ex.DW3/1. It has been contended that there is no protection available to the plaintiff as per order dated 19.05.2022 Ex.DW3/4.
26. Ex.DW3/4, the order passed by Learned PO, ATMCD, was passed on the appeal filed by the plaintiff herein. The relevant portion of the judgment reads as under :-
"10. A perusal of the status report submitted by the respondent itself proves that the construction / deviation existing in the flat of appellate is old one and was raised 15 to 20 years back i.e. around 1997-
98.
11. The National Capital Territory of Delhi Laws (Special Provisions) Second Act, 2014, was passed by the parliament to provide monetorium to certain class of unauthorized construction. Section 3(2) of the said Act is relevant, which is reproduced herein below :-
"Section 3. Enforcement to be kept in abeyance - (1) (a) to (g) ***** (2) Subject to the provisions contained in sub-section (1) and notwithstanding any judgment, decree or order of any Court, status quo -
(i). as on the 1st day of January, 2006 in respect of encroachment or unauthorized development ;
(ii). in respect of unauthorized colonies, village abadi area (including urban villages) and their extensions, which existed on the 31st day of March, 2002, and where construction took place even beyond that date and (upto the 1 st day of June, 2014), mentioned in sub-section(1);
(iii). in respect of special areas as per the Building Regulations for Special Area, Unauthorized Regularized Colonies and Village abadis, 2010; and Civil Suit No. 8180/2016 B. Mohanakumar Vs. Prem Kajla & Ors.Counter Claim No. 10/2024/13 Prem Kajla & Ors.Vs. B. Mohanakumar Page 27 of 32
(iv). in respect of all other areas with the National Capital Territory of Delhi as on the 8th day of February, 2007, shall be maintained. (3) ************"
12. A perusal of the said provision thus shows that this construction raised in unauthorized colony, village abadi including urban vilalges and unauthorized regularized colonies which were in existence as on 31.03.2022 and constructions raised upto 01.06.2014 are protected whereas cut off date for protection in respect of encroachment and unauthorized development is 01.01.2006 and for other areas within the NCT of Delhi, the cut off date for protection is 08.02.2007.
13. The property in question is in Hari Nagar, New Delhi. As per Section 3 (2) of the National Capital Territory of Delhi Laws (Special Provisions) Second Act, 2011, unauthorized construction / deviation raised uptill 08.02.2007 in such properties are protected.
14. The Status report dated 26.09.2017 filed by the respondent itself shows that the deviation, if any, in the flat of the appellate were made 15-20 years back i.e. between 1997-2002. The deviation / unauthorized construction was raised much prior to 07.02.2007. Therefore, the appellant is entitled for the protection under the National Capital Territory of Delhi Laws (Special Provisions) Second Act.
15. In view of the above facts and circumstances, the appeal filed by the appellant is allowed. Impugned demolition order dated 22.08.2013 is put in abeyance till the protection granted by the National Capital Territory of Delhi Laws (Special Provisions) Second Act, 2011 is not withdrawn. The respondent however is at liberty to take appropriate legal action once the protection granted by the Act is withdrawn, after giving due notice to the appellant.
16. The appellant however shall not raise any unauthorized construction in the subject property."
Civil Suit No. 8180/2016 B. Mohanakumar Vs. Prem Kajla & Ors.
Counter Claim No. 10/2024/13 Prem Kajla & Ors.Vs. B. Mohanakumar Page 28 of 3227. As per status report dated 15.03.2019, the plaintiff Mr. B. Mohan Kumar carried out unauthorized construction on his property. As per status report dated nil filed by the MCD on 21.12.2021, action has been taken against property of defendant no. 1 and the encroachment in the shape of extended boundary and encroachment on the adjacent common land has been removed.
28. In light of the detailed discussion above, issues no. 1, 2, 3, 4 and 7 are decided in favour of the plaintiff. However, no further relief of mandatory injunction can be granted as property of the defendant no. 1 and 5 has already been acted upon by the defendant MCD.
Issue No. 5, 9, 10 and 12(additional issue).
(5) Whether the plaintiff has concealed the material facts of his huge unauthorized construction raised by him and has not come before the court with clean hands? OPD1,2 & 3 (9) Whether the defendant no.1 has locus standi to file the counter claim in the present suit? OPD1 (10) Whether the defendant no.1/counter claimant is entitled to decree of mandatory injunction against the plaintiff and the defendant no.2 directing the plaintiff and the defendant no.2 to demolish the unauthorized construction raised by the plaintiff in his flat, as mentioned in para 'a' of the counter claim? OPD1/Counter Claimant (12) Whether the suit of the plaintiff is barred in view of Section 41(f)(i)(j) of Specific Relief Act? (additional issue) Civil Suit No. 8180/2016 B. Mohanakumar Vs. Prem Kajla & Ors.
Counter Claim No. 10/2024/13 Prem Kajla & Ors.Vs. B. Mohanakumar Page 29 of 3229. The onus to prove these issues was upon the defendants.
30. In light of the detailed discussion above and in light of the order dated 19.05.2022 Ex.DW3/4 passed by the Learned PO, ATMCD, it is held that the plaintiff has concealed the facts of unauthorized construction on his property. Accordingly, issue No. 5 is decided in favour of the defendants.
31. The plaintiff has contended that defendant no. 1 / counter claimant has no locus standi to file counter-claim as the plaintiff has not caused any harm or damage to defendant no. 1. The ground floor flat is in occupation of defendant no. 1 and the plaintiff is in occupation of the first floor. Admittedly, show cause notice and thereafter demolition order has also been passed against the plaintiff for excess coverage. The defendant no. 1 is the immediate neighbour of the plaintiff and therefore, if any unauthorized construction is done by the plaintiff, it will naturally affect the defendant no.1. Accordingly, Issue No. 9 is decided in favour of the defendant no. 1.
32. The defendant no. 1 has prayed for a decree of mandatory injunction against the plaintiff thereby directing defendant no. 2 to demolish the unauthorized construction. In view of the order of the ATMCD dated 19.05.2022, no mandatory injunction can be granted for demolition since the property of the plaintiff is held to be protected under the National Capital Civil Suit No. 8180/2016 B. Mohanakumar Vs. Prem Kajla & Ors.
Counter Claim No. 10/2024/13 Prem Kajla & Ors.Vs. B. Mohanakumar Page 30 of 32Territory of Delhi Law (Special Provisions) Second Act 2014. Issue No. 10 is accordingly decided against defendant no. 1 / counter-claimant.
33. It is contended by the defendants that the present suit is barred in light of section 41(f) (i) & (j) of the Specific Relief Act, 1963. The relevant provisions reads as under :-
"41. Injunction when refused -An injunction cannot be granted -
(f). to prevent, on the ground of nuisance, an act of which it is not reasonably clear that it will be a nuisance;
(i). when the conduct of the plaintiff or his agents has been such as to disentitle him to the assistance of the Court;
(j). when the plaintiff has no personal interest in the matter."
34. This court is of the considered view that the plaintiff has been able to prove that the defendant no. 1 carried out unauthorized construction and which was demolished. Further, the plaintiff being immediate neighbour of defendant no. 1 cannot be said to have no personal interest in the matter. Accordingly, issue no. 12 /additional issue no. 1 is decided in favour of the plaintiff.
Issue No. 6 & 8(6) Whether the suit of the plaintiff is barred by law as no notice under Section 80 of CPC has been served? OPD3 Civil Suit No. 8180/2016 B. Mohanakumar Vs. Prem Kajla & Ors.
Counter Claim No. 10/2024/13 Prem Kajla & Ors.Vs. B. Mohanakumar Page 31 of 32(8) Whether the suit of the plaintiff is barred by Section 477/478 of DMC, Act 1957? OPD2
36. The Onus to prove these issues was on defendant no.3. The defendant no. 3 did not lead any evidence to prove issue no. 6 & 8. Issue No. 6 & 8 are accordingly decided against the defendant no. 3.
Relief
37. No further order can be passed in the present suit as the MCD has already demolished the unauthorized construction raised by defendant no.1 and the construction raised by the plaintiff is protected under the Special Laws. The MCD shall, however, take appropriate action against the property of the plaintiff as and when the protection of the Special Act is removed by the Legislature. Suit stands partly decreed and counter-claim is dismissed. Parties to bear their own costs. Decree sheet be prepared accordingly.
32. File be consigned to record room after necessary compliance.
Announced in open Court (Himanshu Raman Singh) on 05.03.2024. SCJ-cum-RC (West) Tis Hazari Courts, Delhi.
Digitally
signed by
HIMANSHU
HIMANSHU RAMAN
RAMAN SINGH
SINGH Date:
2024.03.06
15:32:52
+0800
Civil Suit No. 8180/2016 B. Mohanakumar Vs. Prem Kajla & Ors.
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