Delhi District Court
Sh. Ramesh Kapoor vs Delhi Development Authority on 28 September, 2020
IN THE COURT OF SH. BHARAT AGGARWAL, LD. CIVIL
JUDGE-02, WEST, TIS HAZARI COURT, DELHI
SUIT NO.1155/2016
Sh. Ramesh Kapoor
S/o Late Sh. M.L. Kapoor
R/o of Property/Plot No.6,
Block-A2, Community Centre,
Paschim Vihar, New Delhi.
.........Plaintiff
Versus
1. Delhi Development Authority
Through its Vice Chairman
Vikas Sadan, INA, New Delhi - 110023
2. The Executive Engineer/PIO
Delhi Development Authority,
WD-7, Double Tanki, Paschim Vihar,
New Delhi.
..........Defendants
Suit filed on - 04/07/2014
Judgment reserved on - 28/09/2020
Date of decision - 28/09/2020
SUIT FOR PERMANENT INJUNCTION
Suit No.1155/2016 Page No.1/16
JUDGMENT:-
By this judgment I shall adjudicate a suit of perm anent in junction filed by the plaintiff against the defendant/DDA. Before adjudicating u pon the issues framed in the present suit, it is necessary to state the pleadings in the present suit concisely.
Pleadings of the Plaintiff: -
1. The present suit has been filed by the plaintiff against the defendant/DDA seeking permanent injunction that defendant be rest rained from illegally and unlawfully removing the sewer, water and electric cable line, etc, or disconnect the said connections of t h e su it property bearing No.6, Block-A2, Community Center, Paschim Vihar, Delhi and from raising any illegal and unlawful constructions in the open space from where the above said lines are placed in between properties/plot No.6 & 7, Block-
A2, Community Centre, Paschim Vihar, Delhi.
It is the case of the plaintiff that he is the owner and in possession of property/shop/plot no.6, situated in Block-A2, Community Center, Paschim Vihar, New Delhi which was purchased by the plaintiff from M/s Frien ds Properties who had purchased it from DDA. It is st at ed t hat t he sewer, water lines and open space between the properties no.6 & 7 which is marked as "ABCD" in red colour in site plan were given on t he property upon a payment of Rs.3,184/- in favour of M/s Friends Properties.
It is stated that the water and sewer pipes are placed in the said open space between the plots No.6 & 7 which is also shown in the layout plan of DDA. It is also stated that while applying for the sewerage connection in the suit property, DDA vide its letter dt.31/12/1992 informed the erst while owner M/s Friends Properties that in the sketch a corridor of 2.4 meter was shown to be left between the two plots for sewerage and water supply. It is Suit No.1155/2016 Page No.2/16 stated that after due approval the water and sewerage connection in the suit property were installed through the open space shown in red colou r an d it has been in existence since the date of purchase of property by M/s Friends Properties.
It is stated that hence the sewerage and water services are from t he open space between the property no.6 of th e plaintiff an d property n o.7 which belongs to DDA is in existence much prior to 1986. It is stat ed t hat in the month of May, 2013 certain officials of DDA came t o t h e spot an d started digging the corridor/open space in between t he property n o.6 & 7 for removing the sewer line and raising construction of the wall. That t he plaintiff had given a written complaint to the defendant no.2 vide application dt.08/08/2013. Thereafter, plaintiff made several requ ests t o the defendant to not raise construction of wall in the open space and n ot t o remove the sewerage line, etc., but the defendant did not consider the request of the plaintiff and in April, 2014 the defendant collected the building material in the space between the properties no.6 & 7 an d st art ed digging the same which was stopped by the interference of the plaintiff and others. It is further stated that on 18/06/2016 some officials of DDA t ried to raise construction of wall in the open space illegally, hence, the plaintiff has filed the present suit seeking permanent injunction restraining the defendants from making any construction in the open space or rem ove t he lines.
Pleadings of the Defendants: -
2. Written statement was filed on behalf of the defendant /DDA whereby inter alia it was stated that no open space is available bet ween plot No.6 & 7 as claimed by the plaintiff as both the plots are adjacent t o each other with a common wall. It is alleged by t h e defen dant t hat the space which is referred to as common space by the plaintiff is actually part Suit No.1155/2016 Page No.3/16 and parcel of the vacant plot no.7 and the owner of plot no.6 has catered the services through plot no.7 which is illegal and cannot be allowed. It is stated that as per the approved plan/controlled drawings, a corridor of 2.4 meters has been provided on the Eastern side of the plot in question and the owner has to take water, sewer and electricity connection through this corridor and that plaintiff wants to grab a part of plot no.7 which belongs to DDA.
It is stated that permission to construct plot no.6 was accorded to M/s Friends Properties on 29/11/1986 and M/s Friends Properties informed DDA vide letter dt.20/07/1992 about the completion of t h e construction work and admitted some technical hazards regarding provision of services connection like sewerage, water drainage, etc. It is stated that the construction on plot no.6 could not be raised con t rary t o t he san ctioned plan. It is submitted by DDA that plot no.7 is a DDA land and is yet t o be auctioned and the occupants of plot no.6 had tried to encroach the plot no.7 on various times due to which on 09/10/2009, the DDA constructed a boundary wall to prevent it from being encroached and the plaintiff himself on 24/02/2013 sent a complaint to the Public Grievances Cell, Office of the CM, Delhi Secretariat informing that plot no.7 has been t urned in to a big garbage/dustbin and is highly insanitary and, hence, defendant/DDA had to act on the complaint dt.24/02/2013 by removing a port ion of t h e already existing boundary wall for access of the labourers to remove the malba/garbage from the plot. It is stated that the corridor of 2.4 m et ers is inherent in each plot for which DDA charges at t he t ime of allot ment of plots and as per the controlled drawing no shop exist s and the place earmarked for toilet had been removed and staircase squeezed to raise unauthorised shop of which plaintiff has filed the present su it an d by way of the present suit the plaintiff wants to grab the plot no.7 which admittedly belongs to DDA.
Suit No.1155/2016 Page No.4/16It is vehemently argued on behalf of DDA that plaintiff has no locus standi to file the present suit as the plaintiff is neither the owner nor enjoying the right, title or interest in respect of plot no.6. It is st ated t hat plaintiff has not placed on record any document to show that he has purchased the suit property from M/s Friends Properties as alleged by h im . It is stated by DDA that the plaintiff has a right to use the sewer, water an d electric cables already installed in plot no.6, but plaintiff cannot encroach upon the plot no.7 which is a DDA land and is yet to be auctioned.
3. Thereafter, replication was filed on behalf of plaintiff to t he written statement of the defendant/DDA wherein inter alia the contents of the written statement were denied and those of the plaint were reiterated.
It was stated by the plaintiff that as there was no space left for service in plot no.6, the Deputy Director asked the concerned en gineer t o supply copy of the plan indicating the service connection vide letter dt.04/12/1992. It is stated that plaintiff catered the service lanes as per t h e instructions of DDA itself and the corridor of 2.4 meters was allocated by Deputy Director of DDA vide letter dt.04/12/1992.
Issues: -
4. From the pleadings of the parties, following issues were fram ed in the suit vide order dt.14/12/2015: -
(a) Whether the plaintiff has approached the court with clean hands? OPD
(b) Whether the suit of the plaintiff is not properly valued for t he purpose of court fees and jurisdiction? OPD
(c) Whether the suit of the plaintiff is bad for wan t of n ot ice u /s 53B of DD Act? OPD Suit No.1155/2016 Page No.5/16
(d) Whether this court has no jurisdiction t o decide t he present matter? OPD
(e) Whether the plaintiff is entitled to relief of permanent injunction as prayed in the plaint? OPP
(f) Relief, if any.
Evidence :-
5. In order to prove his case, plaintiff got examined h imself as PW-1 and filed his evidence affidavit which was taken on record and exhibited as Ex. PW-1/A wherein he reiterated the averments made in the plaint. PW-1 also relied upon certain documents which are as under :-
Identification Description
Mark
PW-1/1 Site plan.
Mark-A Copy of Receipt no.371089.
Mark-B Copy of the layout plan.
Mark-C Copy of the letter dt.31/12/1992.
Mark-D Copy of the letter dt.20/07/1992.
Mark-E Copy of RTI application dt.20/05/2013.
Mark-F Copy of letter dt.08/08/2013.
Ex. PW-1/8 Letter dt.03/06/2014 for transfer of RTI application.
Ex. PW-1/9 Copy of letter dt.04/06/2014.
Ex. PW-1/10 Reply by DDA of RTI application dt.09/06/2014.
Ex. PW-1/12 Letter dt.21/08/2013.
Ex. PW-1/13 Reply dt.30/09/2013.
PW-1/plaintiff was cross-examined by the counsel for
defendant/DDA whereby he stated that in his plaint, supporting affidavit, Suit No.1155/2016 Page No.6/16 replication or the correspondence available on record, the plaintiff h as n ot stated that he is the owner of shop no.9. He voluntarily stated t hat h e h as done correspondence with the DDA as a Chairman of the A-2 Market Association as well as an owner. Upon the query whether he took permission from the DDA to purchase the shop on plot no.6, he responded by saying that there was no requirement for him t o in form t he DDA. He stated that the area of plot no.6 is 183sq. yds. and there are 13 shops on t h e ground floor. He stated that he does not have t he completion certificate and it is with the owner and thereafter he again st ated t hat it is wit h t he builder. He stated that he does not know as to how many shops were sanctioned. He further admitted that the size of plot n o.6 t o 8 are equ al. He further admitted that the shop of which is st at ed t o be own er of plot no.6 is also not shown on Ex. PW-1/1 i.e. the site plan relied u pon by t h e plaintiff.
He admitted that he had made complaints to the authorities and DDA vide letter Ex.PW-1/D1 and Ex. PW-1/D2 about raising of wall in plot no.7 stating that it has become a place for accumulation of garbage. He admitted that DDA had to make a hole in the boundary to send the labourers inside for removal of garbage. He admitted that Point-A to Point- B is the dividing line between plot no.6 and plot no.7 on Ex. PW-1/1 i.e. the site plan. He stated that he does not have the original of the plan showing the place where sewage connection was to be taken for plot n o.6. He admitted that plot no.7 is Government land and it has not yet auctioned and he further admitted that plot no.7 was many times encroached by occupants of plot no.6 and in order to avoid the same, DDA raised the boundary wall. He admitted that except him no other occupant of plot no.6 had filed a suit in respect of the alleged common space.
Thereafter, plaintiff's evidence was closed vide order dt.05/12/2017.
Suit No.1155/2016 Page No.7/166. In order to prove its case, defendant/DDA led t h e evidence of t wo witnesses as under :-
(a) Sh. Sanjeev Kumar, AE (Building) DDA, Vikas Sadan, New Delh i was got examined as DW-1 and he stated on oath that h e h as brought t he sanctioned plan of plot no.6 which was taken on record as Ex. DW-1/1 an d the disputed plot was marked in the red lines. As per the plan the plot h ad five shops and two corridors.
DW-1 was also cross-examined by the counsel for plaintiff whereby he stated that the plan was approved on 20/11/1986 an d h e adm itted t hat the corridor between plot no.6 and plot no.7 is 2.4 m et er wide as per t h e controlled drawing but he does not have any knowledge about the existence of sewer line.
(b) Thereafter, evidence affidavit of DW-2 Sh. Sushil Kumar, EE (WD-
7), Outer Ring Road, near Twin Water Tank, Paschim Vihar, Delh i was filed and taken on record as Ex. DW-2/A. He stated that M/s Friends Properties is the owner of the plot no.6 and plaintiff could not purchase any shop from M/s Friends Properties in the space alleged by h im as n o su ch shop was ever sanctioned by the DDA to be constructed in the area wh ich was assigned for toilet in the building plan. It was st at ed t hat t here is n o space between plot no.6 and 7 as both the plots are adjacent t o each ot her and owner of plot no.6 is trying to cater service through plot no.7 wh ich is illegal and cannot be allowed. That plot no.7 was tried to be encroached by the occupants of plot no.6 and, hence, 09/10/2009 DDA constructed a boundary wall to prevent encroachment. It is further stated t hat as per t h e lay out plan filed by the plaintiff himself, no open space exists between plot no.6 and 7 which is the document filed on record by th e plaintiff h imself and identified as Mark-B. It is stated that when the plaintiff tired to Suit No.1155/2016 Page No.8/16 damage the boundary wall to grab the plot no.7 a complaint was made with SHO Paschim Vihar, on 10/11/2014 which is filed on record as Ex. DW- 1/2 and the present suit has been filed by the plaintiff only to grab the Government land of plot no.7.
DW-2 was also cross-examined by the counsel for plaintiff whereby he stated that he cannot show the com plaint dt .10/11/2014 in t he court record which is mentioned in Para-7 of his affidavit. It was later t aken on record and exhibited as Ex. DW-2/P1. Nothing substantial em erged from the cross-examination of DW-2.
Decision with reasons :-
7. The arguments were heard on behalf of part ies an d t he record h as been carefully perused. Now, I shall give my issue-wise findings which are as under: -
8. Issue No.(b) & (d) -
(b) Whether the suit of the plaintiff is not properly valued for the purpose of court fees and jurisdiction? OPD
(d) Whether this court has no jurisdiction to decide the present matter? OPD The onus to prove issue no.(b) and issue no.(d) was upon the Defendant.
It is argued on behalf of the defendant that even though, the plaintiff has filed simplicitor suit for injunction but in fact it is a suit for declarat ion of title to the alleged shop no.9 which in fact an unauthorised construction. On these grounds, it is stated that the suit has t o be valu ed at t he m arket value of the alleged shop because the plaintiff has sought declaration in the garb of injunction and plaintiff has only valued the suit for t h e pu rpose of court fees and jurisdiction at Rs.130/- on the relief of injunction.
Suit No.1155/2016 Page No.9/16Upon comprehensive perusal of the plaint it appears that the plaintiff's grievance pertains to raising of boundary wall and removing t he sewer/water lines from the alleged common space and in these circumstances, the plaintiff has filed t he su it for sim plicitor permanent injunction. Plaintiff has alleged himself to the owner of Plot No.6, Block- A2, Community Center, Paschim Vihar and the Defen dant/DDA doesn 't claim any rights over the Plot No. 6 and the ownership of plot n o. 7 is n ot in dispute. Therefore, there is no such requirement for the plaintiff t o seek declaration in respect of Plot No. 6 and it does not appear from the perusal of the pleadings or evidence led on record that the plaintiff is in fact t rying to seek declaration in the garb of injunction and, hence, it can not be h eld that the suit is not properly valued or this court has no jurisdiction to decide the present injunction suit.
Therefore, issue no.(b) and (d) are decided in favour of the plaintiff and against the defendant.
9. Issue No.(c) -
(c) Whether the suit of the plaintiff is bad for want of notice U/S 53B of DD Act? OPD The onus to prove this issue was upon the defendant.
No specific evidence was led by the defendant on t his issue an d it has in fact been admitted by the Plaintiff that no notice under the aforesaid provision was ever served by the Plaintiff upon the Defendants. It is relevant to refer the observations of the Hon'ble High Court of Delhi in the case of "Col. A.B. Singh (through LRs) V/s Shri Chunni Lal Sawhney and Others (RFA No.96/2002, decided on 05/10/2011)," which are reproduced herein after :-
"In any case, this issue is no longer res integra in as much as, it has been held by division bench judgment of this Suit No.1155/2016 Page No.10/16 court in "Yashoda Kumari V/s MCD and Others (AIR 2004 Delhi 225)," that once there is a contest to the suit, the suit cannot be held to be barred for not giving of notice U/S 53B of DD Act in as much as the basic object of Section-53B, like Section-80 CPC is to prevent the matters from coming to court and once the matter reach the court and are contested the suit should not be dismissed on such technical grounds."
The present case has been contested on merits and has gone through the rigours of trial, thus, as per the observation of Hon 'ble High Cou rt of Delhi as aforementioned, non-service of notice U/S 53B of DD Act can not be held to be fatal to justify the dismissal of the suit on the ground of maintainability. In the considered opinion of this court, the defendant/DDA has contested the case at length and the dismissal of t h e su it wh ich was filed in the year 2014 on technical non-compliance of Sect ion-53B of DD Act would not be justified.
Hence, issue no.(c) is decided against the defendant and in favour of the plaintiff.
10. Issue No.(a) and (e) -
(a) Whether the plaintiff has approached the court with clean hands? OPD
(e) Whether the plaintiff is entitled to relief of permanent injunction as prayed in the plaint? OPP The onus to prove issue no.(a) was upon the defendant and t he on us to prove issue no.(e) was upon the plaintiff.
Plaintiff has filed simplicitor injunction suit alleging h imself t o be the owner and in possession of plot no.6 and further stated that defendant/DDA is illegally trying to grab the common space of 2.4 m et ers Suit No.1155/2016 Page No.11/16 between plot no.6 & 7 where the sewerage/water lines are installed for plot no.6 and in these circumstances plaintiff h as sought in junction against DDA from illegally removing any sewer or electric cable lines and raisin g illegal unlawful construction in the open space.
Defendant/DDA on the other hand has vehemently argued t hat t he plaintiff lacks any locus standi in the present case. Th e documents/plan relied upon by the plaintiff himself, i.e., Mark-B sh ows t hat t here is n o space between plot no.6 & 7 which is a layout plan of plot no.6. Defendant argued that the dispute is not really regarding removal of various facilities given to plot no.6 but the plaintiff in fact wants to encroach upon plot n o.7 and due the existence of boundary wall, he was unsuccessful in encroaching the plot in question and therefore, the plaintiff has prayed for injunction against raising a boundary wall. The defendant has veh emently argued that there is no open space as alleged between plot no.6 & 7 and the plaintiff himself made complaints regarding accumulation of garbage an d ill-sanitary condition of plot no.7 which led to the defendant taking act ion by raising wall to prevent it from encroachment. It is alleged that the plaintiff has not come to the court wit h clean h ands as t h e plaintiff h as failed to show his alleged ownership over the disputed plot.
The plaintiff has led his own evidence in the present suit and strongly relied upon the site plan Ex. PW-1/1 wherein the plaintiff has shown the alleged open space of 2.4 meters between the points i.e. ABCD. Plaintiff has strongly relied upon letters bearing Mark-C dt.31/12/1992 issued by DDA to M/s Friends Properties i.e. the alleged erst while owner of plot no.6 and Mark-D i.e. the letter dt.20/07/1992 issued by M/s Frien ds Properties to DDA. However, perusal of none of t h e relied u pon let ters shows that DDA had approved the usage of alleged common space of 2.4 meters between two plots for the purpose of layin g down of sewerage or water supply for plot no. 6. Further, plaintiff has relied u pon Mark-E & F Suit No.1155/2016 Page No.12/16 which are RTI application and letter written to DDA both in the capacity of Chairman of the A-2 Market Association.
The defendant has taken a categorically su bmission in t he writ ten statement that the plaintiff has no locus standi to file the present suit. Even though, it has been stated by the plaintiff h imself in t he plain t t o be t he owner and in possession of property/shop/plot no.6, however, no document whatsoever has been filed by the plaintiff in t his regard. Th is was even more important as the defendant/DDA has taken a cat egorical st and t hat only M/s Friends Properties is the recorded owner of the plot no.6 and plaintiff has no concern whatsoever with the disputed plot. Even in t he replication the plaintiff has resorted to mere vague denial without any specific particulars in the para 1 of preliminary objections pertaining to t he challenge of Plaintiff's locus standi. During the course of eviden ce it was expected from the plaintiff to at least prove on record the averm ents m ade in the plaint regarding his locus in the property in question being plot n o.6 whereas it is pertinent to note that the plaintiff has not even filed a sin gle document showing himself to be either the owner or in possession of plot no.6 or having any right thereupon. In these circumstances, it is not difficult to arrive at the conclusion that the Plaintiff has failed t o sh ow h is locus standi in the subject matter property, i.e., plot no. 6.
The plaintiff has written to DDA in the capacity of a Chairman of A- 2 Market Association and he has himself admitted during his cross- examination that he has never stated in any correspondence or even in t he plaint that he is the owner of shop no.9 in the plot n o.6. Despite several queries of the counsel for the defendant, the plaintiff has vehemently failed to prove on record that the alleged shop of which plaintiff states himself t o be owner was ever sanctioned by DDA and built or constructed as per t h e approved plans. He admitted that he had made complaints to the DDA regarding raising of boundary wall which had become a reason for Suit No.1155/2016 Page No.13/16 accumulation of garbage. He further admitted that the wall was raised by the DDA to prevent encroachment and for removal of garbage. It is also very pertinent to note that during his cross-examination plain tiff h imself admitted that the line between Mark-A and Mark-B on Ex. PW-1/1 i.e. t he site plan is the dividing line of plot no.6 and plot no.7 and the entire case of the plaintiff pertains to open 2.4 meters vacant space which is actually stated by the plaintiff himself to be part of the plot no.7.
It was incumbent for the plaintiff to prove in evidence that the alleged 2.4 meter space marked between Point-ABCD on site plan Ex. PW- 1/1 was in fact left open for the purpose of sewage/water line as alleged by the plaintiff himself, however, the plaintiff has vehemently failed t o prove the same on record. Plaintiff in fact also admitted t hat the plot n o.7 is a Government land and it was tried to be encroached by the occupants of t h e plot no.6 for which purpose the defendant/DDA raised the boundary wall. Therefore, in these circumstances, it is very difficult for the court to understand as to why the plaintiff has sought injunction against construction of boundary wall by DDA as the plaintiff himself has admitted that without raising of the boundary wall, unauthorised encroachment could happen on the Government land.
Any litigant approaching a court of law by way of ordinary civil su it has to show his locus standi to approach the court. The term locus standi is usually understood as the right or the capacity to bring an action or to appear in a Court. The plaintiff must be able t o sh ow t h at t here is som e damage or apprehension of damage or infringement of plaintiff's legal rights by the defendant's alleged act. For the purpose of the present suit, the Plaintiff must show that he has some rights over the Plot No. 6 especially when he has stated himself to be the owner and in possession of t h e same. Surprisingly, the Plaintiff has not even filed an iota of evidence to show his locus on the plot no.6 and therefore the plaintiff is not entitled for any relief Suit No.1155/2016 Page No.14/16 from this court pertaining to the said plot. Even otherwise, t he document Mark-B relied upon by the plaintiff himself shows t hat t here is n o space between plot no.6 & 7 which is contrary to the entire pleadings of the plaintiff.
In the letter issued by the plaintiff himself on 24/02/2013 Ex. PW- 1/D1 it has been stated by the plaintiff that on 09/10/2009 DDA officials came to the site and raised illegal wall adjoining plot no.6 covering plaintiff's alleged service area. Therefore, it is quite apparent that the wall which is alleged to be illegal by the plaintiff was in existence since the year 2009 whereas the Plaintiff in the plaint states that on 18.06.2014 officials of DDA tried to raise a wall. It has been proved on record by the defendant/DDA that only four shops on plot n o.6 cou ld be raised an d in face of allegations of unauthorised construction on plot no.6, it was incumbent upon the plaintiff to show that alleged shops were raised legally as per sanctioned plan, however he failed to do so. The court is not inclined to grant any relief in favour of the Plaintiff who not just failed to sh ow h is locus standi in the suit property but has also failed to show t he legalit y of his own actions.
In these circumstances, it is apparent that the plaintiff has not approached the present court with clean hands and there is no cause of action in favour of the plaintiff against the DDA. Injunction being an equitable relief, the court is not inclined to grant any relief in favour of t h e plaintiff and, hence, the suit of the plaintiff is liable to be dismissed.
Accordingly, both the issues no.(a) and (e) are decided in favou r of the defendant and against the plaintiff.
11 Issue no.(f) -
(c) Relief - In view of the findings given on issues no.(a) & (e), documents placed on record, pleadings of the parties and evidence led by Suit No.1155/2016 Page No.15/16 the parties, the plaintiff has failed to prove his case on the scale of preponderance of probabilities. Accordingly, the suit of the plaintiff is hereby dismissed.
Decree sheet be prepared accordingly. File be consigned t o record room after completing the necessary formalities.
(BHARAT AGGARWAL) Civil Judge-02, (West), Tis Hazari Court, Delhi Pronounced, through video conferencing through Cisco Webex application, on 28/09/2020.
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