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[Cites 1, Cited by 0]

Delhi District Court

Mr. Sudip Kumar Lahiri vs Ms. Ratna on 15 January, 2013

         IN THE COURT OF SHRI RAJ KUMAR TRIPATHI,
                 SENIOR CIVIL JUDGE (SOUTH),
                  SAKET COURTS, NEW DELHI.


CS No.  325/11/10
Unique Case ID No. 02406C0428952010
1.   Mr. Sudip Kumar Lahiri 
     S/o late Mr. K.K. Lahiri 
     R/o S­89, Panchsheel Park, 
     New Delhi 110 017.
2.   Major Gen. Sandeep Biswas
     S/o Mr. U.N. Biswas
     R/o S­89, Panchsheel Park,
     New Delhi 110 017.
                                                Plaintiffs

                                Versus

1.    Ms. Ratna
      R/o 5, Arvindo Marg,
      New Delhi 
      IInd address:
      J­33, IInd Foor, Saket,
      New Delhi 110 017.
2.    Anand Estate
      101, Uday Park,
      New Delhi,


CS No.  325/11/10                              Page 1 of 17
 3.    MCD,
      Town hall,
      New Delhi.  
                                                                       Defendants


DATE OF INSTITUTION                                      : 03.02.2003
DATE OF RESERVING JUDGMENT                               : 07.01.2013
DATE OF PRONOUNCEMENT                                    : 15.01.2013.



     SUIT FOR MANDATORY AND PERMANENT INJUNCTION


                                 JUDGMENT

1. The plaintiffs filed the present suit for mandatory and permanent injunction against the defendants wherein they prayed for restraining the defendants from raising a proposed four storey building and/or any construction contrary to building bye laws of MCD on plot no. S­91, Punchsheel Park, New Delhi (hereinafter referred to as 'suit property'). The plaintiffs further prayed for restraining the defendants from constructing/building any basement in the suit property, from causing any further damage to the property particularly the foundation of the house bearing no. S­89, Punchsheel Park, New Delhi as shown in red in the site CS No. 325/11/10 Page 2 of 17 plan, from obstructing free flow of the air and light being enjoyed by the inhabitants of house no. S­89, Panchsheel Park, New Delhi, from storing any building material including badarpur, bricks and stones opposite / in front of H.No. S­89, Punchsheel Park, New Delhi, from carrying any construction work in the night and from spreading any slush / filth and from raising any construction by using the road opposite to H.No. S­89, Punchsheel Park, New Delhi 110 017.

The plaintiffs also prayed for directing the defendant no. 2 to repair the wall shown red of house bearing no. S­89, Panchsheel Park, New Delhi. They have further prayed for directing the defendants to demolish/remove the illegal construction raised/carried by defendant no. 1 in the suit property particularly illegal construction raised in the basement, front and back portion and excessive area coverage in the property.

Brief facts of the case sans unncessary details are given as under:

2. The plaintiffs are residents of plot no. S­89, Panchsheel Park, New Delhi 110 017. They are stated to have got the aforesaid property by CS No. 325/11/10 Page 3 of 17 virtue of a Will dated 01.04.1992 executed by late Mrs. Pratima Maitra in their favour. The suit property is situated adjoining to the house of plaintiff no. 1. The plaintiff no. 1 alleges that on or about 08.12.2002, he found that labourers had started demolishing the construction of the suit property and on enquiry he came to know that demolition was carried out at the instance of defendants no. 1 and 2. He further came to know that the defendants had decided to raise and construct few flats in a proposed four storey building to be raised on the plot and they would also build basement in the plot. The plaintiff is stated to have noticed a crack developed in his wall at point A as shown red in the site plan. He requested the labourers not to cause further damage to his wall but they did not take care. He has stated that on 07.01.2003, he requested the engineer on the spot to instruct the labourer for not causing any further damage. He has alleged that the labourer did not stop and kept on causing damage to his property. It is alleged that the labourer had caused substantial damage to the wall of plaintiff and not only cracks are stated to have developed on various parts of the wall but at some places, the wall has also been broken. The plaintiff no. 1 states that he availed the services of an architect who opined that whole wall was to be replaced. CS No. 325/11/10 Page 4 of 17 According to plaintiff, the defendants have no right to construct any basement in the suit property and if they succeed in constructing the same, it would substantially affect the wall of his building. The plaintiff has alleged that the defendants no. 1 and 2 have not taken any permission from defendant no. 3 for raising the construction in the suit property. He has further alleged that if defendants no. 1 and 2 succeed in raising the construction as proposed by them, he would be deprived of getting light and air, which he has been getting since 1982. The plaintiff has stated that the construction raised by defendants no. 1 and 2 cause disturbance to the inhabitants of the adjoining houses. The plaintiff no. 1 apprehends that if the defendants are not stopped from raising the construction, he would face various hardships and nuisance. It is alleged that the building of basement is contrary to the provision of building bye laws and the same will make the foundation of the house of plaintiff very weak. The plaintiff and his family members fear danger to their lives by the construction raised by defendants no. 1 and 2 in the suit property. The plaintiff has stated that the defendants have not complied with the rules of Building Bye Laws and as such their security is in danger. The defendants are stated to have covered the areas from where the plaintiff CS No. 325/11/10 Page 5 of 17 was getting sun light and air in violation of the building bye laws. It is alleged that the market value of plaintiff's house has been substantially effected due to the illegal construction raised by the defendants. The plaintiff has stated that due to the illegal acts of the defendants, he has suffered mental torture, harassment and agony besides the economic loss.

3. The defendants no. 1 and 2 have resisted the suit of the plaintiffs by way of filing joint written statement wherein they have contended that the plaintiffs have no locus standi to file the present suit as their legal rights have not been infringed by them. They further contended that the suit of the plaintiff's is bad for mis­joinder of parties as the defendant no. 2 has no relation with the suit property. They have alleged that the plaintiffs have filed the present suit on the basis of false and fictitious allegations. They contend that it is the plaintiffs who are harassing them and making unreasonable demands for not approaching the court. The defendants have further challenged the authority of the plaintiffs in filing the present suit. The defendants admitted to have demolished the existing structure on the suit property. They state that the structure was demolished after obtaining the sanction plan for construction on the plot from the competent authority. According to defendants, the plan for CS No. 325/11/10 Page 6 of 17 construction was obtained from defendant no. 3 vide Sanction Building Plan no. 78/B/SZ/2002 dated 23.10.2002. The defendants have denied to be constructing four storey apartment for further sale @ Rs. 70 lacs per flats as alleged by plaintiffs. They have stated that the construction is being raised on the suit plot after taking all necessary permissions from the competent authorities and they are very careful that no damage is caused to the adjoining properties. They have further stated that the MCD has granted them permission for construction of basement on their plot and they are constructing the building as per Sanction Building Plan and construction raised by them in the suit property is in accordance with the Building Bye Laws. Rest of the averments/allegations made in the suit by the plaintiffs has been denied by the defendants.

4. The defendant no. 3 has also contested the suit of the plaintiffs by way of filing written statement. In the written statement, the defendant took the preliminary objection that the suit of the plaintiffs is barred U/S 477/478 of The Delhi Municipal Corporation Act, 1957 (in short' The DMC Act') for want of service of notice before the institution of the suit. The defendant has contended that the plaintiff is not entitled for any relief against it. It is stated that the suit property was inspected on 09.04.2003 CS No. 325/11/10 Page 7 of 17 and it was found that the owner/builder has carried out unauthorized construction in the form of deviations/excess coverage against the Sanction Building Plan no. 78/B/SZ/2002 dated 23.10.2002 at basement, ground floor and infringement in the set back without any permission/sanction from MCD. The defendant took action against the aforesaid unauthorized construction U/S 343/344 of The DMC Act vide U/C file no. 83/B/UC/SZ/2003 dated 09.04.2003. Show cause notice no. 22349 dated 09.04.2003 is stated to have been issued and served upon the owner/builder namely Smt. Ratna Rao as per law. It is averred that no reply to the show cause notice was received within the stipulated time, therefore, the matter was further processed and demolition notice was issued and served upon the owner / builder asking her to demolish the offending portion of the unauthorized construction booked at the suit premises within six days. The defendant has alleged that the owner/builder failed to comply with the notice, hence, demolition order has been passed as per law. It is stated that the execution of demolition order will be carried out as per law. The defendant has denied the other averments of the plaintiffs.

CS No. 325/11/10 Page 8 of 17

5. The plaintiffs filed replication to the written statement of defendant no. 3 wherein the averments made in the written statement has been controverted and denied. The plaintiffs have re­asserted their stand as taken in the plaint. The plaintiffs have preferred not to file replication to the written statement of defendants no. 1 and 2 despite sufficient time and opportunity given to them.

6. Vide order dated 17.11.2003, this Court framed the following issues for adjudication of the matter for trial: ­ i. Whether the plaintiff has not come to the court with clean hands and has suppressed material facts? OPD.

ii. Whether the plaintiff is entitled to the decree of mandatory injunction as prayed for? OPP.

iii. Whether the plaintiff is entitled to the decree of permanent injunction as prayed for? OPP.

iv. Relief.

CS No. 325/11/10 Page 9 of 17

7. Consequent upon amendment of the plaint by the plaintiffs, the learned predecessor of the Court vide order dated 05.02.2011, framed the following additional issue in the case:

Issue no.3:Whether plaintiff is entitled to decree of mandatory injunction as prayed for in prayer (2­A)? OPP.

8. In the course of trial, the defendants no. 1 and 2 stopped appearing in the Court. Therefore, they were proceeded ex­parte vide order dated 04.10.2006.

9. I have heard and considered the submissions advanced by Shri Prem Bhushan, learned counsel for plaintiffs and Ms. Promila Kapoor, learned counsel for defendant no. 3 and gone through the testimony of witnesses and perused the record of the case. On the basis of material available on record, my issue­wise findings are given as under: ISSUE NO. 1

Whether the plaintiff has not come to the court with clean hands and has suppressed material facts? OPD.

10. Onus to prove this issue lies on the defendants. The defendants have not examined any witness in order to discharge the onus to prove the aforesaid issue. No argument on the aspect of concealment of material CS No. 325/11/10 Page 10 of 17 fact was advanced even at the time of final arguments. The defendants have miserably failed to discharge the onus to prove the issue. Hence, this issue is decided against the defendants.

ISSUE NO. 2

Whether the plaintiff is entitled to the decree of mandatory injunction as prayed for? OPP.

ISSUE NO. 3

Whether the plaintiff is entitled to the decree of permanent injunction as prayed for? OPP.

AND Additional Issue No. 3 (framed on 05.02.2011) Whether plaintiff is entitled to decree of mandatory injunction as prayed for in prayer (2­A)? OPP.

11. All the aforesaid three issues are taken up together as they are inter­linked and require appreciation of same set of facts and evidence. Onus to prove the aforesaid issues lie on the plaintiff. In order to discharge the onus to prove the issues, the plaintiff no. 1 has got examined himself as PW1. He filed his evidence by way of affidavit wherein he has re­iterated and re­affirmed the same facts as stated in the CS No. 325/11/10 Page 11 of 17 plaint. In the course of his deposition, he relied upon the document i.e site plan of his property Ex.PW1/4 and the photographs Ex.PW1/5 (colly.) No other witness in support of the case of plaintiff has been examined.

12. The plaintiffs have levelled several wild and bald allegations against the defendants in their suit. They have also sought number of reliefs in the suit. In para no. 4 of the plaint, it is stated that plaintiff no. 1 on enquiry came to know that defendants no. 1 and 2 have decided to raise and construct few flats in a proposed four storey building to be raised on the suit plot. They were further going to sell the flats at the rate of Rs. 70 lacs per flat. The defendants no. 1 and 2 have categorically denied in their written statement that they were going to construct a four storey apartment for sale @ Rs. 70 lacs per flat. The source from where the plaintiff no.1 came to know about the proposed plan of defendant no. 1 no. 2 has neither been disclosed in the plaint nor in the affidavit of plaintiff. The knowledge of the plaintiff is also not supported with any material.

13. The plaintiffs in their plaint have levelled the allegations that the defendants no. 1 and 2 were raising the construction against the CS No. 325/11/10 Page 12 of 17 Municipal Building Bye Laws and without any sanction plan from MCD. They further alleged that the construction of basement in the suit property is illegal and unauthorized. The allegations made in the plaint have not been proved on record by the plaintiffs. They have miserably failed to prove on record the extent of unauthorized and illegal construction raised by defendants in the suit property.

14. The defendants no. 1 and 2 have categorically stated in their written statement that before demolishing the structure existing at the suit property, the sanction plan from MCD for construction of the building was obtained. They further stated that they were raising construction on their plot after taking all necessary permission from the competent authorities. The factum of grant of Sanction Building Plan for raising construction in the suit property has been confirmed by defendant no. 3 / MCD. The defendant no. 3 in its written statement has stated that plan no. 78/B/SZ/2002 dated 23.10.2002 was sanctioned in respect of the suit property. The defendant no. 3 also granted permission to defendant no. 1 and 2 for construction of basement in their plot. Therefore, the construction of basement in the suit property by defendant no. 1 and 2 cannot be said to unauthorized and illegal.

CS No. 325/11/10 Page 13 of 17

15. The plaintiffs also alleged in their plaint that the defendants had collected the building material and kept the same on the road, which caused inconvenience to him and to the neighbouring public. On the other hand, the defendants no. 1 and 2 have stated in their written statement that they took permission from defendant no. 3 on 09.01.2003 for dumping of building material and for that purpose they deposited staking charges with the competent authority according to their policies regarding construction. The plaintiffs have not filed any rejoinder to controvert the averments of the defendants. The plaintiffs have not disputed the fact that the staking charges as alleged by the defendants were not deposited by them with the Municipal Authorities.

16. The plaintiffs further alleged that due to the construction raised by defendants no. 1 and 2 in the suit property, the market value of their property has been substantially affected. From the written statement of defendants, it is clear that the construction was raised by defendants no. 1 and 2 after getting a proper valid sanction plan from the Municipal Authority. If the market value of the plaintiffs' property has diminished, then the defendants cannot be held to be accountable for the same as they CS No. 325/11/10 Page 14 of 17 carried out the construction after sanction of building plan from the MCD.

17. The plaintiffs further alleged that the defendants have not complied with the rules of building bye laws and as such their security and security of their family members is in danger. They further alleged that they have been deprived from sunlight and air which was covered by defendants in violation of the building bye laws. The plaintiffs have failed to specify and prove on record as to which area covered by defendants is in violation of municipal building bye laws. The plaintiffs also miserably failed to prove their easementary rights for getting light and air in the property of defendant no. 1. The defendants have asserted in their written statement that construction in the building was started only after getting sanction plan of the building and after taking permission from the competent authority. They have further stated that construction of building is in accordance with municipal building bye laws.

18. The plaintiffs have miserably failed to prove on record that due to the acts of the defendants the wall of their house cracked. The photographs Ex.PW1/5 relied upon by the plaintiffs have not been proved in accordance with law. The negatives of the photographs have neither CS No. 325/11/10 Page 15 of 17 been placed on record nor the photographer who took the photographs was summoned to prove the same. Moreover, it is not clear from the photographs as to which portion of the plaintiffs' wall was allegedly damaged.

19. It is relevant to note that the site plan of the suit property has neither been filed by the plaintiffs nor proved the same on record showing the unauthorized and illegal construction alleged to have been carried out by defendants no. 1 and 2 in the suit property. Thus, the plaintiffs failed to prove on record the extent of unauthorized and illegal construction raised by defendants in their property, which is against the municipal building bye laws.

20. For the reasons stated above, this court is of the considered view that the plaintiffs have miserably failed to discharge the onus to prove the aforesaid issues. Accordingly, the issues are decided against the plaintiffs.

RELIEF

21. In view of my findings on issues no. 2 and 3, this court is of the considered view that the plaintiffs are not entitled for any relief. Hence, the suit filed by the plaintiffs is dismissed.

CS No. 325/11/10 Page 16 of 17

22. Before parting, it is pertinent to note that the defendant no. 3/MCD in its written statement has admitted that the owner/builder of the suit property has carried out unauthorized construction in the shape of deviations/excess coverage against the Sanction Building plan at basement and ground floor and there is infringement in the set back. The municipal authority has already taken necessary action in this regard. It is needless to mention that dismissal of the suit of the plaintiffs will in no way come in taking of necessary action in respect of unauthorized construction as found in the suit property as per law. The defendant no. 3 will take the necessary action in respect of any violation of municipal building bye laws in the suit property as per law.

23. Parties are left to bear their own cost. Decree sheet be prepared. File be consigned to Record Room. 

(Announced in open Court                                 (RAJ KUMAR TRIPATHI)
on 15.01.2013)                                    SENIOR CIVIL JUDGE (SOUTH)
                                                    SAKET COURTS, NEW DELHI.




CS No.  325/11/10                                                              Page 17 of 17