Delhi District Court
) Smt. Kusum vs ). Municpal Corporation Of Delhi on 31 March, 2022
IN THE COURT OF MS. NITI PHUTELA SENIOR CIVIL JUDGE
RENT CONTROLLER (SOUTH DISTRICT)
SAKET COURTS, NEW DELHI
Case No. 82584/16
1) Smt. Kusum
W/o Sh. Triloki Nath
R/o H. no. O12, J.J. Colony, Sriniwaspuri,
New Delhi110065.
.........Plaintiff
Versus.
1). Municpal Corporation of Delhi
Through it's Commissioner
Delhi
2). Dy. Commissioner
MCD (Building Department)
Jal Vihar, Lajpat Nagar, New Delhi
3). Sh. Om Prakash
S/o Late Sh. Govind Ram,
R/o C84, East of Kailash,
New Delhi110065
4). Sh. Hemant
S/o Late Sh. Sarup Chand,
R/o 27/6, Ashok Nagar,
Near PS Tilak Nagar, New Delhi.
(Suit abated qua said defendant vide order dtd 31.03.2022)
.......Defendants
SUIT FOR PERMANENT AND MANDATORY INJUNCTION
Date of Institution of the suit : 28.08.2010
Date of Reserving for Order : 23.03.2022
Date of Pronouncement of Order : 31.03.2022
CS SCJ 82584/16 Kusum Vs MCD &Ors. Page no. 1 of 17
JUDGMENT
Brief facts necessary for disposal of the present case as mentioned in the pleadings of the parties are as under:
PLAINT
1. As per the case of plaintiff, she is residing on the ground floor of property bearing no. O12, J.J. Colony, Sriniwaspuri, New Delhi along with her husband and children. The above said property was allotted to her father Late Sh. Sarup Chand s/o Late Shri Tara Chand on 01.06.1961 under residential scheme. Her father constructed ground floor consisting of two bedroom, one drawing room, kitchen, latrine bathroom and verandah in the year 1961 itself. Thereafter he started residing in the said property. Father of plaintiff expired on 26.12.1975 leaving behind his wife, two sons and three daughters. After the death of her father, two sons and two daughters started residing separately but plaintiff and her mother continued to reside in the same. The mother of plaintiff expired on 19.05.1994. Thereafter, plaintiff got married and continued to reside in the property with her husband and children.
2. It is her case, that in the year 2003, defendant no. 4 i.e. the brother of plaintiff illegally got constructed the first floor of the premises through defendant no. 3 who is a builder. Despite the said construction, the roof of the first floor remained under possession of plaintiff. In the month of March, 2007, defendant no. 2 at instance of defendant no. 4 started threatening the plaintiff to dispossess her from the portion in her possession if she will not allow them to raise the construction over and CS SCJ 82584/16 Kusum Vs MCD &Ors. Page no. 2 of 17 above the first floor. She lodged various complaints with different authorities dated 16.03.2007, 12.05.2007, 21.07.2009, 27.07.2009 and 06.08.2009.
3. Aggrieved by the said acts, plaintiff filed the suit for permanent injunction and declaration against defendant no. 3 and 4 and one Sh.
Rajender Singh vide CS No. 752/09 titled as "Kusum Vs. Om Prakash and Ors" praying for restraining the defendants from raising any illegal and unauthorized construction on the roof of first floor of the said premises and for declaring the documents of sale executed by defendant no. 3 therein in favour of defendant no. 1 and 2 as null and void in that case. Defendant no. 3 therein alleged in the WS filed by him in the said suit that he is perpetual lessee on the basis of perpetual lease dated 12.07.2004 as granted by Slum and J.J Department. He alleged that the property was mutated in his favour in the record of DDA/Slum and J.J Department. Plaintiff filed replication in the said case clarifying that the said perpetual lease deed was obtained by defendant no. 3 therein by fraudulent means without any knowledge of plaintiff. As per her, after the death of her father, the legal heirs of her father i.e. her mother, two brothers and other sisters are also the legal heirs in respect to the property and defendant no. 4 herein had no right to get the lease deed executed in his favour to the exclusion of other legal heirs.
4. In the suit bearing CS No. 752/2009, the application under order 39 Rule 1 and 2 was partly allowed and partly dismissed vide order dated 11.03.2010. Defendant no. 1 and 3 therein who are defendant no. 3 and 4 herein were restrained from dispossessing the plaintiff from the ground floor of the suit premises till the pendency of the said suit.
CS SCJ 82584/16 Kusum Vs MCD &Ors. Page no. 3 of 17 However, prayer for restraining them from raising further construction was not allowed. An appeal was filed by plaintiff before Ld. ADJ which is pending.
5. It is the version of plaintiff that under the garb of the above said interim order, defendant no. 3 and 4 started raising illegal and unauthorized construction over the roof of the first floor without any sanction building plan from defendant no. 1 and 2. On 08.06.2010 plaintiff sent a complaint to defendant no. 1 and 2, Commissioner of Police, South Zone as well as SHO concerned. On 10.06.2010 complaint was also sent to Deputy Commissioner of Slum and J.J Department. On 11.06.2010, officials of defendant no. 1 and 2 partly demolished the illegal construction just for name sake. However, on 12.06.2010 defendant no. 3 and 4 again threatened her to raise unauthorized construction. On 13.06.2010 and 14.06.2010 complaints were lodged with defendant no. 1 and 2 but in vain.
6. As per plaintiff, defendant no. 3 and 4 had raised unauthorised construction in the form second and third floor and are still in the process of constructing the fourth floor. It is alleged that vide order 11.03.2010, the defendants were allowed to raise the construction only as per law but as the construction was raised without any sanction plan therefore, plaintiff filed the present suit praying for permanent injunction against defendant no. 3 and 4 from raising illegal and unathorised construction over and above the roof of the first floor of premises in question and also for mandatory injunction against defendant no. 1 and 2 directing them to demolish the unauthorized construction raised by defendant no. 3 and 4.
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7. Summons were issued to defendants. Defendants appeared in the court and filed their WS.
WRITTEN STATEMENT OF DEFENDANT NO. 1 and 2.
8. In the WS filed by defendant no.1 and 2, they have opposed the suit filed by plaintiff on the ground that no notice u/s 477 and 478 of DMC Act, 1957 was issued by plaintiff before filing the present suit. As per defendants, the present plaint is without any cause of action and the same is filed merely to settle the score by plaintiff with defendant no. 3 and 4.
9. It is stated that on inspection of the suit property it was found that unauthorized construction in the recent past was raised from second floor till part of fourth floor. The property was booked vide file no. 424/B/UC/CZ/2010 dated 18.08.2010 for carrying out demolition. On 14.09.2010, the demolition action was carried out and third and fourth floor were made unusable by cutting two panels at each floor. It is prayed that the suit of the plaintiff be dismissed being not maintainable. WRITTEN STATEMENT OF DEFENDANT NO. 3:
10. In the WS filed by the defendant no. 3, it is alleged that perpetual lease deed dated 12.07.2004 was granted by DDA (S&JJ) in favour of defendant no. 4. Therefore defendant no. 4 is the lessee. As per said defendant, the present court has no jurisdiction to try the present suit as all the disputes relating to the property in question including the issue of illegal construction are referable to sole arbitrator appointed by lessor i.e. DDA (S&JJ).
11. It is further alleged that defendant no. 4 had already entered into CS SCJ 82584/16 Kusum Vs MCD &Ors. Page no. 5 of 17 agreement to sell in respect of the roof rights uptil sky of the terrace of ground floor of the suit premises in the year 2003. Defendant no. 4 even executed GPA, SPA, affidavit, will, receipt and possession letter in favour of defendant no. 3. As per him, first floor was constructed by him in the year 2004 and second floor in the year 2005. He alleged that there is no site plan in respect to whole of the property because the property is situated in unauthorized colony where no site plans are sanctioned being a JJ Colony.
12. In reply on merits, defendant no. 3 denied the averments of the plaintiff in the plaint and averred that the suit is liable to be dismissed. WRITTEN STATEMENT OF DEFENDANT NO. 4:
13. No WS was filed by defendant no. 4. He even failed to join the proceedings, hence, he was proceeded exparte by the orders of Ld. Predecessor Judge vide order dated 20.09.2012.
14. However, death certificate of defendant no.4 was placed on record, as per which date of death of defendant no. 4 is 30,09.2014. The said certificate was filed by the plaintiff herself but no steps were taken to implead the LRs of defendant no.4. defendant no.4 continued to be ex parte, despite the abovesaid fact. Hence, clarification was sought. As no LRs of defendant no.4 were substituted on record, hence, proceedings were abated against defendant no.4.
REPLICATION
15. Replication was filed by the plaintiff to the WS filed by defendant no. 1 and 2 and also to the WS filed by defendant no. 3. In the replications filed, she denied the averments of defendants and reasserted and reiterated the facts alleged by plaintiff in the plaint.
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ISSUES
16. Upon completion of pleadings, issues were framed vide order dtd. 20.09.2012 of Ld Predecessor Judge. However, vide order dtd 31.03.2022, issue no. 1 & 2 were striked off with consent of all the parties and following issues were left to be decided.
1). Whether plaintiff is entitled for a decree of permanent injunction as prayed for in the suit? OPP.
2). Whether plaintiff is entitled for a decree of mandatory injunction as prayed for in the suit? OPP.
3). Relief PLAINTIFF EVIDENCE
17. In order to prove her case, plaintiff got examined herself as PW1. She entered the witness box and tendered her affidavit as Ex.PW1/A. She relied upon documents i.e. site plan which is Ex.PW1/1, copy of plaint of suit No. 752/2009 is MarkA, certified copy of perpetual lease deed is Ex.PW1/3, copy of order dated 11.03.2010 is MarkB, copies of notices and complaints are Ex.PW1/4 to Ex.PW1/6, original registry receipts are Ex.PW1/7 to Ex.PW1/12, copy of complaint dated 10.06.2010 addressed to Deputy Commissioner, Slum JJ Department, MCD is Ex. PW1/13, copy of complaint dated 10.06.2010 addressed to Additional Commissioner, Slum JJ Department, MCD is Ex.PW1/14, original registry receipts are Ex. PW1/15 and Ex.PW1/16, copy of complaint dated 13.06.2010 is Ex.PW1/17, copies of three complaints CS SCJ 82584/16 Kusum Vs MCD &Ors. Page no. 7 of 17 dated 14.06.2010 are Ex.PW1/18 to Ex.PW1/20, legal notice dated 09.09.2010 sent to Director (S&JJ) and another legal notice dated 09.09.2010 sent to Additional Commissioner (S&JJ) is Ex.PW1/21 and Ex.PW1/22, postal receipts are Ex.PW1/23 and PW1/24, certified copy of show cause notice dated 24.03.2011 issued by Deputy Director, L&LJJ to defendant no. 3 is Ex.PW1/25, eight photographs are MarkC (Colly). She was crossexamined by Ld. Counsel for defendant no.1 and 2 and by Ld. Counsel for defendant no. 3.
18. PW2 HC Mange Ram from PS Amar Colony, was a summoned witness. He deposed that the requisite record in respect to complaint dated 08.06.2010 filed by plaintiff had already been destroyed on 16.06.2017 vide copy of order which is Ex.PW2/A. He was cross examined by Ld Counsel for defendant no. 3 and was discharged.
19. PW3 Ashok Kumar Saini, UDC, DUSIB was a summoned witness. He brought the record of property in question from office of DUSIB. He proved the copy of lease deed which is already Ex.PW1/3; copy of show cause notice which is already Ex.PW1/25; copies of legal notices dated 09.09.2010 which are already Ex.PW1/22 and Ex.PW1/21. He was crossexamined by Ld Counsel for defendant no. 3 and was discharged.
20. PW4 Amit, Ahlmad in the Court of Ld. Civil Judge01 (South), Saket Courts was a summoned witness who brought the original file bearing no. 1190/14 (CS 83268/2016) titled as Kusum Vs. Om Prakash. He exhibited the certified copy of the plaint which is Ex.PW4/1. In addition, he also exhibited the certified copy of order dated 11.03.2010 CS SCJ 82584/16 Kusum Vs MCD &Ors. Page no. 8 of 17 which is Ex.PW4/2. He was not crossexamined by any of the defendants despite opportunity.
21. PW5 Ashok Puri was a summoned witness. He deposed that he was a photographer by profession and was running his photography business in the name and style of "Rajat Photo Studio". He deposed that in the month of June, 2010 he was engaged by plaintiff to take photographs of the suit property which are already Mark C. Nine coloured photographs were exhibited as Ex.PW5/A (colly). He also deposed that on 19.12.2015, when property was inspected by the local committee he was again engaged by plaintiff for taking the photographs of third and fourth floor of the premises where demolition action had taken place. The photographs nineteen (19) in number are Ex.PW5/B (colly). The exhibition of all the above said photographs was objected by the ld. Counsel for the defendant no. 3 on the ground that neither the negatives nor certificate under Section 65B of Indian Evidence Act was filed. The said witness was cross examined by ld. Counsel for defendant no. 1 and 2 and ld. Counsel for defendant no. 3. He was discharged thereafter.
22. PW6 Dinesh Kumar Nimawat , Judicial Asstt in the court of Ld SCJ, South was a summoned witness, who brought the original judicial file bearing CS no. 83466/16 titled as Kusum V. DUSIB & Ors. He exhibited the certified copy of amended memo of parties dated 24.02.2014 and plaint dated 13.08.2015 along with supporting affidavit which is Ex.PW6/A (Colly). He was not crossexamined by any of the defendants.
23. No other witness was examined, hence, PE was closed vide order dtd.
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18.07.2019.
DEFENDANT EVIDENCE
24. It was stated by the ld. Counsel for defendant no. 1 and 2 that there was no requirement of leading any defence evidence on behalf of said defendants. Hence DE was closed in respect to defendant no. 1 and 2vide order dtd 27.08.2019.
25. Defendant no. 3 had initially prayed for leading of defence evidence, however, later on stated that there was no requirement of leading any defence evidence on his behalf, hence, defence evidence in respect to defendant no. 3 was closed vide order dated 15.02.2022. FINAL ARGUMENTS
26. Final arguments addressed. Heard. Record perused. FINDINGS
27. Issue no. 1 and 2:
1). Whether plaintiff is entitled for a decree of permanent injunction as prayed for in the suit? OPP.
2). Whether plaintiff is entitled for a decree of mandatory injunction as prayed for in the suit? OPP.
28. Issue no. 1 and 2 shall be taken up together being interconnected. The onus to prove the said issues was upon plaintiff.
29. It is the case of plaintiff that unauthorized construction in the shape of first floor was raised by the defendant no.4 with the help of defendant no.3 in the year 2003 itself. However, still the roof of the said floor remained under the possession of the plaintiff. Later on, in the year 2007, defendant no.4 again started threatening the plaintiff to dispossess her from the roof of the first floor and threatened to raise construction CS SCJ 82584/16 Kusum Vs MCD &Ors. Page no. 10 of 17 over the roof of the first floor. Aggrieved by the said conduct, plaintiff filed a suit bearing no. 752/09 praying for declaration and permanent injunction against defendant no.4 herein and also against person namely Rajender Singh to whom the first floor of the premises was sold. In the said suit, interim application of plaintiff in respect to restraining the defendants from raising any construction was dismissed. The copy of the said order is Ex.PW4/2. However, lateron defendant no.3 and 4 started raising construction of further floors unauthorisedly without any sanction plan. As per her, suit property is constructed uptil 4th floor.
30. On the other hand, it is the version of defendant no.3 that defendant no.4 had executed agreement to sale, GPA, special power of attorney, affidavit, Will, receipts and possession letter in favour of the said defendant in the year 2003. In pursuance of the same, he constructed the first floor in the year 2004 and subsequently raised the construction of the second floor in the year 2005. It is also the version of said defendant that even the ground floor in which plaintiff is residing is having no sanction plan as the colony where the suit property is situated is an unauthorized colony and no plans are sanctioned by MCD.
31. In order to shed the onus upon her, plaintiff herself entered in the witness box and was cross examined as PW1. In her cross examination, she admitted that the property in question is a joint property in which her brother and sister have equal and undivided share. It is version of plaintiff that defendant no.4 had got the perpetual lease in his favour by playing fraud upon the DUSIB and a suit bearing CS no. 83466/16 challenging the documents executed by defendant no.4 on the basis of said perpetual lease is already pending. PW1 further admitted in her CS SCJ 82584/16 Kusum Vs MCD &Ors. Page no. 11 of 17 crossexamination that construction of the first floor was raised firstly in the year 2003 but she had not taken any action under an impression that her brother i.e. defendant no.4 was raising that construction. However, she had come to know later on that it was defendant no.3, who was raising the construction on the said property.
32. She admitted that the construction on second, third and fourth floor was raised in the year 2007 and 2009. She again clarified that it was constructed after the year 2007. This version of her is supported with the complaints lodged by her with various departments in which she had alleged that defendant no.3 and 4 started raising construction on 08.06.2010. Copy of the said complaints are Ex.PW1/4 to Ex. PW1/6.
33. She also admitted that there was no sanction plan in respect to ground floor which was constructed by her father .
34. Moreover, it was argued by Ld Counsel for plaintiff that in the previously instituted suit bearing CS no. 752/09 (no. 1190/14 (CS 83268/2016), copy of which is Ex.PW4/1, in the said suit, plaintiff has merely alleged regarding raising of construction on the first floor of the premises, which shows that there was no second and third floor constructed till then. It was also argued that in the WS filed by defendant no.3 & 4 herein, who were defendant no.1 & 4 therein, they had nowhere alleged that second floor and third floor were already constructed.
35. In view of abovesaid facts, after perusal of the pleadings in respect to suit bearing CS no. 752/09 (no. 1190/14 (CS 83268/2016), copy of which is Ex.PW4/1, it is clear that in the same, there is no mention CS SCJ 82584/16 Kusum Vs MCD &Ors. Page no. 12 of 17 about second, third and part fourth floor constructed by any of the parties. Hence, it is brought on record by the plaintiff that construction was raised by defendant no. 3 & 4 after the filing of abovesaid suit.
36. In this regard, plaintiff also relied upon the testimony of PW5 Sh Ashok Puri, who deposed that he was a photographer and he had visited the suit premises in June 2010 when construction was going on. The photographs which are Ex.PW5/A and EXPW5/B(Colly) as clicked by the said witnesses were objected by Ld Counsel for defendant no.3 to be inadmissible on the ground that neither the negatives nor the certificate under Section 65 of Indian Evidence Act was filed.
37. In this regard PW5 admitted in his crossexamination that he was not even having digital camera in his possession by which the said photographs were clicked. Hence, the said photographs which are relied upon by plaintiff are not admissible because neither the negatives nor the certificate under Section 65B of Indian Evidence Act was filed in support of the said photographs. Moreover, the witness himself admitted that he was even not having the digital camera in his possession from which the said photographs were clicked.
38. Report was also filed by Local commissioner, however, he was not examined. Hence, the report which is filed by the Local Commissioner cannot be considered as he has not entered the witness box to prove the said report.
39. Defendant no. 1 & 2 have already stated in the WS that when the property was initially inspected after receiving the complaint, unauthorized construction in the form of second, third and part fourth floor was raised in recent past. The property was booked for demolition CS SCJ 82584/16 Kusum Vs MCD &Ors. Page no. 13 of 17 on 18.08.2010 and even demolition actions were taken on multiple occasions i.e. on 14,09.2010, 20.01.2011 and 07.09,2011. This proves the version of plaintiff that the construction which was being raised by defendant no. 3 & 4 was unauthorized construction without any sanctioned plan and is thus not as per the building byelaws.
40. Defendant no.3 has himself not entered the witness box to support his version that the construction of the second and third floor was raised in the year 2005 itself.
41. A ground was raised by defendant no.3 that as plaintiff herself on being examined as PW1 had admitted that she is residing on the ground floor and said portion was constructed without any sanction plan, therefore, plaintiff is not entitled to the said equitable relief. In this regard, as already observed previously that though plaintiff while being cross examined as PW1 admitted that there is no sanction plan in respect to the ground floor, however, it has been pleaded in the plaint that ground floor was constructed by her father in the year 1961. This fact is not denied by defendant no.3.
42. At this stage, it is relevant to mention judgment of Hon'ble Supreme Court of India in case titled Fakir Chand (through LRs) vs Laila Ram (through LRs), 1993, III, AD Delhi, 168. In the said judgment, it was opined by Hon'ble Court that in case of any grievance in respect to any construction already raised which is complete, the injury to the other person is not continuing. It stands complete at the very point of time when the construction is complete and the person who is being affected by the said construction/obstruction can approach the court within period of 3 years from the date of completion of the same and not later CS SCJ 82584/16 Kusum Vs MCD &Ors. Page no. 14 of 17 on. Hence, it was held by Hon'ble Delhi High Court that the said injury will not be continuing in nature.
43. This shows that in the case in hand, the construction on ground floor is an old one which was more than 3 years old. Therefore, now defendant no.3 cannot raise the issue of legality or illegality of said construction.
44. Further, it was also argued by Ld Counsel for defendant no.3 that the colony where suit property is situated is an unauthorised colony where no plans are sanctioned/approved, therefore there is no sanction plan in respect to property in question. However, on perusal of the terms of the perpetual lease, the copy of which is Ex.PW1/3, it is clear that as per clause no. XIV, no construction without the sanction or permission of the municipal/local authority was allowed to be carried out by the lessee. This shows that even if defendant no.4 in whose favour, the said perpetual lease deed was there and from defendant no.3 had acquired right title/ interest if any, in second, third and fourth floor, then also he was required to seek prior permission of SDMC before raising any construction.
45. Therefore, the ground raised by defendant no.3 that no plans were being sanctioned in respect to the said colony being an unauthorized colony is not supported with any evidence and is untenable.
46. It was also argued by Ld Counsel for defendant no.3 that various demolition actions were taken on the suit property due to which suit has become infructous, However, throughout the proceedings, plaintiff had taken the stand that whatever demolition was taken, the same was merely an eyewash and still the property was being used by defendant no.3 and was in habitable condition. In this regard, plaintiff on being CS SCJ 82584/16 Kusum Vs MCD &Ors. Page no. 15 of 17 crossexamined by Ld Counsel for defendant no.1 & 2 admitted that on 14.09.2010 demolition action on third and fourth floor of property was taken in which two panels of the roof of third and fourth floor were demolished. She also admitted that on 20.01.2011 and on 07.09.2011 demolition actions were taken but she maintained the stand that every time the action was taken the same was for the name sake and defendants used to reconstruct the property. She also maintained the stand that complete demolition action had never taken place.
47. These averments were not disproved by defendant no.3 by filing any photographs on record or by examining any witness in his evidence.
48. In view of the aforesaid discussion, it is clear and evident that defendant no.3 had raised unauthorised construction over and above the first floor of suit premises without any prior sanction plan which is required to be demolished.
49. Accordingly, both the above said issues are decided in favour of plaintiff and against the defendants.
RELIEF
50. In view of the above said discussion, on both the aforesaid issues, the suit of plaintiffs is decreed in favour of the plaintiff and against defendant no.1, 2 and 3. Hence, defendant no.3, his employees, agents, associates, representatives etc., are restrained from raising any further illegal and unauthorized construction over and above the roof of the first floor i.e. remaining construction on second and third floor as well as the illegal construction of fourth floor of the property bearing no. O12, JJ Colony, Srinivaspuri, New Delhi.
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51. Further defendant no.1 & 2 are directed to demolish the entire illegal and unauthorized construction raised by defendant no.3 & 4 over and above the roof of the first floor up to the fourth floor of the suit property bearing no. C12, JJ Colony, Sriniwaspuri, New Delhi as shown in red colour in the site plan .
52. Decree sheet be prepared accordingly. Parties to bear their own costs.
53. File be consigned to record room after due compliance.
Announced in open (NITI PHUTELA)
Court on 31st March 2022 SCJ Judge (South)
Saket Courts, Delhi.
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