Delhi District Court
Radhey Shyam Khanna vs Municipal Corporation Of Delhi on 28 August, 2009
IN THE COURT OF SHRI GORAKH NATH PANDEY, JSCC/ASCJ/GUARDIAN
JUDGE(NE)
Suit No. : 218/08
Date of institution: 05.09.1992
Date of hearing final arguments: 21.08.2009
Date of Decision: 28.08.2009
Number of pages: 29
In the matter of :
Radhey Shyam Khanna
s/o Late Shri Daulat Ram Khanna
r/o 1157/1, Rohtash Nagar,
Shahdara, Delhi-110032.
......... Plaintiff.
Versus
1. Municipal Corporation of Delhi
through its commissioner
Town Hall, Chandni chowk,
Delhi.
2. Zonal Engineer (B)
Shahdara Zone, Bhola Nath Nagar,
Shahdara Delhi.
3. Alka Rani
4. Ansu w/o Rajat Gupta
5. Anju Gupta w/o Rakesh Gupta
6. Sadhana Aggarwal w/o Vipin Aggarwal
7. Kanak Prabha Gupta w/o Ram Nath Gupta
r/o 30, Shalimar Park
Bhola Nath Nagar,
Shahdara, Delhi.
.............. Defendants
SUIT FOR MANDATORY INJUNCTION.
JUDGMENT:
The brief and relevant facts for the filing of this suit is as follows.
The plaintiff is the owner and in possession of plot no. 31, Shalimar Park, Bhola Nath Nagar, Shahdara, Delhi-110032. Late Shri Daulat Ram Khanna, father of plaintiff purchased land measuring 94 bigha 6 biswas in khasra no. 634, Bhola Nath Nagar, Shahdara, Delhi (village Chandrawali-Shahdara), which was then a composite property by means of four sale deeds from different persons in the year 1954. Later on share of father of plaintiff was separated from the composite property and thereafter out of above mentioned land, some land was sold by the father of plaintiff and some land was acquired by the Government and compensation of the acquired land was paid to him. The land where police station and office of Zonal M.C.D. Office are situated, was also acquired out of above mentioned land of father of plaintiff. After selling and after acquisition, some land was left with the father of plaintiff. Thereafter a dispute arose among the father of plaintiff, brother of plaintiff late Shri Prahlad Dass Khanna, one Harish Chandra and plaintiff in respect of plot no.27 to 31, Shalimar Park, Bhola Nath Nagar, Shahdara, Delhi which forms part of the above mentioned left over land with the father of plaintiff. A litigation in respect of the same started in the civil court, Delhi and during pendency of said litigation, an arbitrator was appointed by the Court and on the basis of award given by arbitrator a judgment and decree was passed on 09.07.1976, by the Court of Shri G.D. Dhanuka, the then, Sub Judge, Delhi, by means of which, plot no. 27 went to the share of Harish Chandra, plot no. 29 went to the share of Prahlad Dass Khanna and plot no.30 went to the share of Daulat Ram Khanna (father of plaintiff) and plot no. 28 and 31 went to the share of plaintiff and each person was then in possession of their respective plots. Later on plot no. 30, Bhola Nath Nagar, Shahdara, Delhi was allegedly sold by Daulat Ram Khanna to Smt. Kanak Prabha Gupta, defendant no.7. The plaintiff appointed one chowkidar namely Madan Lal to look after his property and in that capacity, he was also allowed to do part time business of DHABA in the said plot. Thereafter plaintiff came to know that defendant no. 3 to 6 got a building plan sanctioned in their names from the building department of MCD, Shahdara Zone, Delhi for construction of a building on the said plot by making false representation to the department. With malafide intention they showed plot no.31 of plaintiff as their plot in the part layout plan and this all have been done by defendant no.3 to 6 in collusion with defendant no.2 in order to grab the property of plaintiff i.e. plot no.31 illegally. Defendants no. 3 to 6 submitted the plan showing a road towards the east of plot no.30 for construction whereas towards the west of plot no.30 there is plot no.31, there is a gali of small width and then nala which fact will be cleared from the sale deed, if any, executed by the father of plaintiff in favour of the defendant no. 7. Defendant no. 3 to 5 have not filed the sale deed along with their plan for sanction for construction in the building department of M.C.D. The defendant no.3 to 7 started construction on plot no.30, Bhola Nath Nagar, Shahdara, Delhi and when plaintiff came to know about the construction, he made enquiries from the building department of MCD and on 08th March 1992, he came to know that they are making construction against the sanctioned plan and constructed full basement illegally and made further unauthorized construction on ground floor, first floor and second floor illegally against the provisions of law and they also made the provisions of opening doors and windows in the building towards the side of plot no.31 of plaintiff which is quite illegal and against the provisions of law and her intention seems to grab the plot no.31 of the plaintiff illegally. They had also made one opening towards the plot of the plaintiff. They have no right at all to make the opening and make provisions for opening of the doors and window in her wall towards the side of the plot no.31 and further they have no right to make construction against the provisions of Municipal statutory resolution, laws and rules and further same would be a great nuisance to the plaintiff and would also stop fresh air and light of the plot no.31 of the plaintiff. The plaintiff made representation to the defendant no.2 and other concerned departments and also defendant no.3 and requested them to undo the mischiefs committed by them and also requested the defendant no.2 to cancel the sanction of the plain granted to defendant no.3 to 7 and to demolish all unauthorized construction made by defendant no.3 on their plot but they paid no heed to it. As further contended that later on Madan Lal, chowkidar of plaintiff filed one civil suit against the defendants and plaintiff in the court of Shri C.K. Chaturvedi, Sub Judge, Delhi, wherein the defendants admitted the fact int he court that plot no.31, Bhola Nath Nagar exists on the spot and unauthorized construction has been made by defendant no.3 to 7 and both show cause and demolition notices have been served upon them but demolition could not take place for the first time on 17.07.1991 and 09.08.1992 for non availability of the police force and then on second time on 04.11.1991 due to shortage of time. All these facts shows that the defendants are not interested in demolishing the unauthorized construction made by defendant no. 3 to 7 rather they are shielding defendant no.3 to 7 and are acting in collusion with. This act of unauthorized construction over her plot and making provisions of doors in her building illegally towards the side of plot no.31 of plaintiff by defendant no.3 to 7 caused great damage to the plaintiff both financially and physically. The building plan of defendant no.3 to 7 is liable to be cancelled by defendant no.1 and 2 and unauthorized construction made by them on their plot is also liable to be demolished. The plaintiff also served the requisite notice under section 478(1) of Delhi Municipal Corporation Act dt. 09.03.1992 upon the defendants and in spite of expiry of period of two months after the service of said notice they have not cancelled the building plan of the defendant no.3 to 7 nor have demolished the unauthorized construction made by her in her plot nor have closed the opening and provisions meant for opening doors in the wall of building of defendant no.3 to 7 towards the side of plot no.31 of the plaintiff. Hence, this suit is filed by the plaintiff against the defendants for passing a decree of mandatory injunction in favour of plaintiff and against defendant no.1 and 2 directing the defendants, its agents, servants, employees etc. to cancel the sanctioned building plan of defendant no.3 of plot no.30, Bhola Nath Nagar, Shahdara, Delhi and further to demolish the unauthorized construction made by her on her above mentioned plot and also directing them to close the opening and the provisions meant for opening doors in wall of building of defendant no.3 towards the side of plot no. 31, Bhola Nath Nagar, Shahdara, Delhi.
2. The WS was filed by defendant no.1 and 2 contending that this suit is barred under section 477/478 of DMC Act for want of statutory notice, this suit is not maintainable under section 343/344 of DMC Act, this suit is filed without any cause of action. The defendant no.1 and 2 denied regarding ownership of the suit property mentioning that defendant no.3 was issued show cause notice u/s 343/344(1) of the DMC Act and demolition order has already been passed. It is further contended that demolition order could not be executed. The defendant no.1 and 2 further mentioned that the demolition could not be carried out. This court has no territorial jurisdiction to entertain this suit and this suit is not maintainable. Defendants further denied rest of the material contentions of the plaintiff in his plaint and prayed to dismiss the suit with heavy cost.
Written statement was also filed by defendant no.4 mentioning this suit is not maintainable and is filed to grab the public land, barred by section 41 (I) of Specific Relief Act and the plaintiff has suppressed the material facts. There is no cause of action for filing of this suit. The defendant no.4 further mentioned that the building was constructed as per the lay out plan. Defendant no.4 further denied all the relevant contents in the plaint mentioning there is no plot no. 31 on the western side of plot no. 30 and plaintiff is not entitled for any relief.
Defendant no.5, 6 and 7 also reiterated and re produced the averments as mentioned by the defendant no.4 in one way or the other.
3. Replication to the written statement of the defendants was also filed by the plaintiff whereby the plaintiff while reiterating the contents as mentioned in the plaint, denied the averments of the defendants as mentioned in written statement.
4. In view of pleading of the parties, following issues were framed vide order dt. 22.05.2004.
1. Whether the plaintiff is not entitled to relief of mandatory injunction as prayed for? (OPP)
2. Whether this suit is not maintainable u/s 343/344 of the DMC Act? (OPD 1 and 2)
3. Whether the building plan in respect of property in question is sanctioned by the MCD of Delhi ? (OPD 3 to 7)
4. Relief.
And the case was thereafter fixed for plaintiff evidence.
As observed, vide order dt. 10.05.05 the application u/s 151 CPC filed by the defendant for framing additional issue of limitation was dismissed.
5. Plaintiff filed his affidavit by way of evidence and was examined as PW1 who deposed regarding the case as mentioned in the plaint and in fact the witness has reiterated and re produced the averments as mentioned in the plaint on oath. The witness lastly deposed that this suit is correct and prayed for passing decree in his favour. The PW also proved the relevant documents i.e. award of judgment and decree Ex. PW1/1 and Ex. PW1/2, notice u/s 478 of the DMC Act issued to the defendants dt. 09.03.92 Ex. PW1/4, postal receipt Ex. PW1/5 and 6, acknowledgment Ex. PW1/7, another legal notice dt. 28.07.94 along with acknowledgment card Ex. PW1/8 and 9 respectively. PW further deposed that the defendants have not demolished the unauthorized construction.
Shri Hari Om, LDC Record Room Civil was also summoned with suit file no. 281/76 titled Harish Chand Vs. Daulat Ram decided on 09.07.76 who deposed that the file could not be traced after the incident of fire which took place e on 14/15.03.96 and he also proved the report of fire Ex. C1. As no other witness remained to be examined by the plaintiff, the PE was closed and the case was fixed for DE.
6. The defendant no.7 filed his affidavit by way of evidence and was examined as DW1 who deposed regarding her case as mentioned in the written statement on oath and in one way reproduced the written statement. The DW deposed that MCD/defendant no.2 has sanctioned the building plan of plot no.30 vide sanction letter dt. 22.04.1991 Ex. D7W/1 and the construction was carried out as per the sanction plan. No plot no. 31 exist in view of the report of survey office TP department MCD dt. 14.05.99. the certified copy of survey report is Ex. D7/3.
An additional affidavit by way of evidence was also filed by defendant no. 7.
Shri Pradeep Saini, UDC working with office of Executive Engineer Delhi Jal Board appeared as DW2 and was examined as D7W2. He produced the summoned documents related to the laying of deep sever lines and construction on main holes in Bholanath Nagar area and exhibited the same as Ex. D7W2/A (collectively).
Shri Rajiv Garg, JE Civil, Delhi Jal Board appeared as DW3 and was examined as D7W3 and exhibited the report regarding providing link internal sever in the area Bhola Nath Nagar extn. Shahdara as Ex. D7W3/2 and site plan of the work of laying sever line in the said area as Ex. D7W3/3.
Shri K.C. Pamnani appeared and examined again as D7W3 deposed that Ex. D71/3 was prepared by Shri O.P. Ahuja, Survey Officer, T.P. Department and he identified his signature on Ex. D71/3. The witness also produced the report signed and submitted by Shri V.K. Bugga before appellate tribunal in appeal no. 237/ATMCD/96, on 10.09.2003 mentioning the chronology of events and the witness exhibited the same as Ex. D7W3/1.
As observed, the defendant no.1 and 2 failed to lead evidence in support of claim and contentions despite opportunities. The DE was thereafter closed.
7. I have heard final argument on behalf of parties and gone through the relevant records.
It is argued by the counsel for plaintiff that the suit of the plaintiff is proved in view of the testimony of witnesses and materials on record and prayed to pass decree in favour of the plaintiff. The defendant has taken false plea.
The argument on behalf of the defendants is that this is a false suit based on the forged and fabricated documents. This suit is filed to harass the defendants and in the garb of this suit for mandatory injunction, the plaintiff is seeking the relief of declaration regarding ownership. There is no cause of action for filing of this suit and prayed to dismiss the suit with exemplary cost.
8. My findings on the above said issues are as follows:
Issue No. 2.
2. Whether the suit is not maintainable u/s 343,344 of DMC Act ?
(OPD 1 & 2) The onus to prove this issue was on defendant no.1 and 2 as this issue was framed in view of the contention of the defendants in the WS. As mentioned at the outset, the defendant no.1 and 2 failed to lead any evidence despite repeated and ample opportunities and the DE was closed. No evidence was lead by the defendant no.1 and 2 at all in support of claim and contention. Merely taking the objections in the WS is not sufficient to prove this issue. Moreover in vie of the testimony of the PW it is apparent and established that the notice was issued by the plaintiff before filing of this suit for taking appropriate action but of no avail. Moreover these provisions of the DMC Act does not apply nor barred the suit of the plaintiff as admittedly in view of the contention in the WS, the show cause notice was issued against the defendants for unauthorized construction along with the demolition order but the appropriate steps were not taken by the MCD in one way or the other in view of the excuses as mentioned. There is no basis for this objection rather the defendant MCD was bound to take action as per law with regard to the unauthorized construction by the defendants and show cause notice as well as demolition order. As the defendant no.1 and 2 have failed to prove this issue and discharge the onus, this issue is decided against the defendants.
Issue No. 1 and 3.
1. Whether the plaintiff is not entitled to relief of mandatory injunction as prayed for? (OPP)
3. Whether the building plan in respect of property in question is sanctioned by the MCD of Delhi (OPD 3 to 7) The onus to prove the issue no.1 was on the plaintiff though the issue no.3 was to be proved by the defendant no.3 to 7. As apparent from the records and the issues framed in these suits, it is clear that the adjudication in this case is with respect to the unauthorized construction if any by the defendants and demolition of the same by the MCD. There is no question of any declaration regarding title of any plot no. 30 in favour of the plaintiff as the same is not within the domain of this suit for mandatory injunction nor called for by way of issues.
As both these issues are liable to be disposed off and adjudicated by the common facts, to decide the controversy on merits more effectively and for the purpose of convenience, both these issues are examined and decided together.
9. The brief and relevant facts for filing of this suit along with the defence of the defendants, and the testimony of the witnesses examined by the parties, has already been mentioned at the outset.
It is noteworthy and relevant to mention that this simplicitor suit for mandatory injunction for cancellation of the sanctioned plan, without claiming the other reliefs along with consequential reliefs though the effective remedy is available to the plaintiff in this regard is not maintainable and the examination as well as the adjudication of the title / ownership of the suit property is beyond the domain of this suit. As regards the adjudication regarding cancellation of the sanction plan and with respect to the ownership of plot no.31 as contended by the plaintiff, in one way or the other, the plaintiff is seeking the relief of declaration of ownership regarding the said plot without paying the appropriate court fees which cannot be permitted or allowed. Accordingly the only despite to be adjudicated is that whether the defendant no.3 to 7 were sanctioned the building plan for plot no. 30, whether the construction was made by them as per the sanctioned building plan, the action taken by the defendant no.1 and 2 with respect to their show cause notice and demolition order with respect to the unauthorized construction by them and accordingly the entitlement of the plaintiff towards decree for mandatory injunction for directing the defendant n.1 and 2 to demolish the unauthorized construction. No other dispute is adjudicated else in this suit.
As mentioned, the title of the defendant no.3 to 7 with respect to plot no. 30 is not disputed. As regards the distance of plot no. 31 there is no question of any such adjudication beyond the domain of the suit. Admittedly the defendants are taken permission from MCD and got the sanctioned plan for construction of building at plot no. 30 and as the construction was not made as per the sanctioned building plan, the show cause notice as well as demolition order was passed by the MCD but it could not materialize and the action has not been taken by the MCD. Both these issues are also framed in this respect and the only dispute to be adjudicated is whether the defendants has carried the unauthorized construction and if the answer is in affirmative, what was the action taken by the MCD or whether the plaintiff is entitled to the relief as prayed in the suit. There is no laches on the part of the plaintiff till taking action against the defendant for unauthorized construction if any at all. I have gone through the pleadings of the parties along with the testimony of witnesses and relevant documents to examine and adjudicate this simple question of unauthorized construction by the defendants.
In the WS by the defendants the unauthorized construction is denied mentioning that the building was constructed as per the site plan. In view of the contention of the MCD, the unauthorized construction by the defendant at plot no.30 is admitted and also explained the action by the MCD against construction i.e. issuance of the show cause notice dt. 22.10.91 and subsequent demolition order dt. 13.06.91 and 28.10.91 but the unauthorized construction was not demolished for want of police force. The said demolition order was never challenged by the defendant no.3 to 7 even before this court nor any action was taken by the defendants. Accordingly the non action by the MCD with respect to the show cause notice as well as non execution of the demolition order itself explains and it sufficient to show the state of affairs and the action taken by the MCD in this regard. It is needless to mention that the defendant MCD is bound to take action as per law as per the DMC Act 1957. Though the partial action was taken but by way of non execution of the demolition order, the MCD has failed to take legal action against unauthorized construction by the defendants.
The PW1/plaintiff has deposed on oath regarding unauthorized construction by the defendants no.3 to 7 as well as no action by the MCD in this regard and also proved the relevant documents in this respect. I have also gone through the testimony of the plaintiff deposed during cross examination and in fact the testimony of the PW with respect to the unauthorized construction remained unrebutted and unimpeached. Everything was asked with respect to plot no. 31, the subject matter which is not under adjudication and which is beyond the domain of this suit. D7W1 also failed to show regarding non absence of unauthorized construction and admitted the action by the MCD regarding unauthorized construction. Further the defendants failed to prove that the construction raised on plot no 30 was as per the sanctioned building plan only and no unauthorized construction was raised. As mentioned at the outset the onus to prove the issue no.3 was on the defendant no.3 to prove that the building plan in respect of the property was sanctioned by the MCD but no such record was brought on record by the defendant. The testimony of the other witnesses who are from Delhi Jal Board and the survey officer is not relevant for adjudication of this matter i.e. regarding question of sanction plan and unauthorized construction by the defendant. From the testimony of the witnesses and pleadings, it is proved that the defendants have constructed at plot no. 30 unauthorizedly contrary to the sanctioned building plan, no action was taken by the MCD and accordingly this suit was filed. Issue no.3 is decided against the defendants.
Section 39 of the Specific Relief Act contains the provisions of mandatory injunction wherein it is mentioned that-
"when, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the court is capable of enforcing, the court may its discretion grant any injunction to prevent the breach complaint of, and also to compel the performance of the requisite acts".
The defendants were obliged to raise construction as per the sanctioned plan by the MCD and MCD inter alia on the other hand was also obliged to ensure such construction failing which to take action as per the DMC act 1957 with respect to the unauthorized construction against the defendants. Needless to mention in this case despite the issuance of show cause notice as well as demolition order by the MCD, as above mentioned, the demolition was not carried out as per law and the MCD has failed in its obligations totally without any ground. Therefore this suit was filed for directing the MCD to demolish the unauthorized construction and the plaintiff is entitled for the relief as prayed in the suit in this respect.
10. As regards the relief of the plaintiff regarding the cancellation of sanctioned plan in view of the contention of plot no.31, in one way or the other the plaintiff is seeking the declaration of ownership which is beyond the domain of the suit as mentioned and accordingly not maintainable.
11. I have gone through the judgment reported as AIR 2008 SC 2033 wherein the scope of such a suit for permanent injunction was examined by Hon'ble Supreme Court in detail and it was mentioned that the position in regard to the suits for prohibitory injunction relating to immovable property, is summarized as under:
i) Where a cloud is raised over plaintiff's title and he does not having possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
ii) As a suit for injunction simiplicitor is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
iii) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title (either specific, or implied). Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the Court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the Court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
iv) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases , are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.
It was further held while answering the scope of the suit for permanent injunction relating to immovable property, the general principles as to when a mere suit for permanent injunction will lie and when it is necessary to file a suit for declaration and / or possession with injunction as a consequential relief are well settled. It is mentioned -
11.1 Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simplicitor will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in lawful possession is not entitled to an injunction against the rightful owner.
11.2 Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simplicitor, without claiming the relief of possession.
11.3 Where the plaintiff is in possession but his entitled to the property in dispute, or under a cloud, or where a defendant asserts a title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequensive relief of injunction. Where the title of the plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.
12. As above mentioned, the plaintiffs is claiming to be the owner of plot no. 31 where some sever of the Jal Board is lying and there is also the dispute regarding the acquisition of the said plot by the Government along with the public road. The question is regarding the right, title and interest of the same which cannot be decided by way of this simplicitor suit for mandatory injunction as prayed in this suit. The claim of the plaintiff accordingly regarding the cancellation of sanctioned building plan of the MCD with respect to plot no. 30 of the defendants and closing the doors and windows as prayed is accordingly not maintainable and is decided against the plaintiff with respect to the adjudication and examination of right, title and interest in the suit property. Issue no.1 is disposed off in favour of the plaintiff.
RELIEF In view of above said discussions and findings, the suit of the plaintiff is decree in favour of the plaintiff and against the defendants. Defendants no. 3 to 7 are directed to demolish the unauthorized construction at plot no. 30 Bhola Nath Nagar Shahdara, Delhi within two months failing which defendant no.1 and 2 is directed to demolish the unauthorized construction as above mentioned in view of show cause notice dt. 20.10.1991 as well as demolition order dt. 13.06.91 and 28.10.91 issued to the defendants. The cost of the suit is also awarded in faovur of the plaintiff and against the defendants. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in the open (G.N. Pandey) Court on 28th Day of August, JSCC/ASCJ/G.Judge(NE), 2009. Karkardooma Courts, Delhi.