Delhi District Court
Neena Jain & Ors. vs . Dda & Ors. 1/32 on 26 July, 2012
Suit No. 1032/2006
IN THE COURT OF MS. RICHA GUSAIN SOLANKI
CIVIL JUDGE(WEST):TIS HAZARI COURTS: DELHI
Suit No. 1032/2006
1. Smt. Neena Jain
W/o Sh. R.K. Jain
Shop No. G2, Plot No. 1
2. Sh. Surjeet Singh
S/o sh. Nanak Singh
Shop No. B4, Plot No. 1
3. Sh. Madeshwar Sharma
S/o Sh. P.D. Sharma
Shop No. G10, Plot No. 1
4. Sh. Robin Sharma
S/o Sh. Madeshwar Sharma
Shop No. G6, Plot No. 1
5. Sh. Harish Chander
S/o Sh. Nand Lal
Shop No. G9, Plot No. 1
6. Ms. Uma Rani
W/o Sh. Rishi Ram Sharma
Shop No. G4, Plot No. 1
7. Ms. Promilla Kapoor
W/o Sh. S.M. Kapoor
Shop No. G1, Plot No. 1
8. Sh. Chaman Lal
S/o Sh. Dula Ram
Shop No. DG10, Plot No. 2
9. Sh. S. Sikri Madeshwar Sharma
S/o Sh. Dula Ram
Shop No. DG9A, Plot No. 13
10. Sh. Shiv Muharat Chaurasia
Neena Jain & Ors. Vs. DDA & Ors. 1/32
Suit No. 1032/2006
S/o Sh. Baij Nath Chaurasia
Shop No. Ex1, Plot No. 2
All at Central Market, MLU
Sector6, Dwarka, New Delhi.
11. Central market Dwarka Sector6 Welfare
Association through its Hony. Secretary
Registered office : Shop No. G2, Plot No. 1,
Central Market, MLU, Sector6, Dwarka,
New Delhi (Applied for registration)
12. Delhi Development Authority Residents
Welfare Association
Sector6, Pocket2,
Dwarka (Flat No. 1 to 54) LIG,
Ground floor Flats,
Through Sh. S.N. Garg
Secretary of the Association and
is also authorised int eh General
Body Meeting held on 15.06.2002
........Plaintiffs
Versus
1. Delhi Development authority
Through its Vice Chairman
Vikas Sadan, INA,
New Delhi.
2. Lt. Governor of Delhi
Administrative of Govt of NCT of Delhi
Raj Niwas, Raj Niwas Marg,
Neena Jain & Ors. Vs. DDA & Ors. 2/32
Suit No. 1032/2006
Delhi 110054
........Defendants
Date of institution : 14.12.2001
Date of final arguments : 01.06.2012
Date of reservation : 23.07.2012
Date of decision : 26.07.2012
JUDGMENT: The present suit is for permanent and mandatory injunction. Brief facts of the case as averred in the plaint are as follows :
1. The plaintiff no. 1 to 10 are allottees, occupants and owners of their respective shops in Central Market, M.L.U of Sector6,Pocket2, Dwarka, New Delhi110045 (hereinafter referred to as 'MLU'). The plaintiff no. 11 is the association of the allottees/owners/occupants of the different shops/offices situated in the MLU, registration of which has been applied for and the same has been formed for the welfare of all the allottees/occupants/owners of the MLU. Sh. R.K. Jain is the Secretary and principal office bearer of this association who is authorised by plaintiffs no. 1 to 10 to file and sign the present suit, to swear the affidavit on their behalf and to take necessary steps during the trial of the present suit in the interest of the plaintiffs. Defendant no. 1 is the incharge of allotment of land/plots. Defendant no. 2 is a proforma defendant.
Defendant no. 1 has planned and developed Sector6 of Pocket2, Dwarka in which MLU consisting of 16 plots, each of 200sq. yds is Neena Jain & Ors. Vs. DDA & Ors. 3/32 Suit No. 1032/2006 situated. Defendant no. 1 has also planned and developed/constructed residential flats (four storeyed) consisting LIG Type114 and MIG Type 342 (hereinafter referred to as 'residential units') on the back side of the MLU, that is, on its north side. As per building Byelaws and Rules and Regulations governing the planning and development of the land for residential and commercial purposes, the defendant no. 1 had evolved a common road 30ft. Wide (hereinafter referred to as 'disputed road') between the MLU and the residential units. The plots numbering 16 situated in the MLU were auctioned to different builders/developers and each builder/developer has constructed. approximately 10 shops on each plot on the ground floor and show room and official commercial accommodation on the first, second and third floor and after completion they have sold these shops and the commercial accommodation to different persons, out of which plaintiffs no. 1 to 10 are allottees of shops/officers on the ground floor. As per policy, Rules and Building Byelaws of defendant no. 1, all these commercial plots/MLU have to build their staircases leading to the first, second and third floor from the back road, that is, the disputed road only and therefore this back road/disputed road is the main road for ingress and egress of the owners/occupants of the ground floor shops and also for the occupants of upper three floors. The goods and stocks which have to be brought Neena Jain & Ors. Vs. DDA & Ors. 4/32 Suit No. 1032/2006 to the shops or by the upper floors owners/occupants have to be transported from the disputed road only as there is no other way to reach the same. This disputed road shown A1 to A2 in the site plan annexed to the plaint is also to be used by fire tenders, police vans, ambulances and other vehicles which may be required to reach the back side shops and the upper floors in the event of any emergency like fire, etc. Therefore this road is required to be of at least 30 feet wide as provided under the DDA Building Byelaws,1983 in its AnnexureJ. Further the plaintiffs no. 1 to 10 and other allottees/occupants of the MLU have purchased their respective shops/commercial built up area after considering the planning and prospective of the said market.
Recently there has been pressure on defendant no. 1/DDA to construct a peripheral road around the residential units which defendant no. 1 initially declined giving the reason that the residential units were adjacent to the MLU and the disputed road was common and also that boundary wall on this road was not possible as there was no space for the same. Thereafter the representatives of residential units again exerted their pressure on various officers of defendant no. 1 and in the month of October, 2001, J.E, DDA told to the plaintiffs that construction of a boundary wall around the residential units was being planned which would divide the disputed road in two parts reducing the width of the Neena Jain & Ors. Vs. DDA & Ors. 5/32 Suit No. 1032/2006 road on the MLU side from 5 feet to 10 feet only at different points. The plaintiffs objected to construction of the disputed wall and approached its various concerned officials/officers and they were assured that the disputed wall would not be raised. However, JE, Incharge of the said project approached the plaintiffs and the other occupants of the MLU and asked for illegal gratification for not constructing the wall in question and on their refusal, he not only threatened to go ahead with the construction of the said wall, but infact, got the same constructed upto some level. Plaintiff and other occupants of the MLU intervened in order to stop further construction of the disputed wall because the same would render their shops and their utility to zero. The plaintiffs and other occupants of the MLU have right to have appropriate passage as the same is their easementary right. Further if the disputed wall is allowed to be constructed, this act of defendant no. 1 would be in violation of its own building Byelaws and Rules and Regulations and the only passage leading to the stair cases to the upper floors would be reduced to about 4 to 10 feet in width due to which no vehicle carrying the goods and stocks required to be brought to the shops and other commercial accommodation would be able to enter. The construction of the disputed wall is also unethical, unesthetical and against the planning norms of the modern city. Further, it would also be against the Byelaws and Rules Neena Jain & Ors. Vs. DDA & Ors. 6/32 Suit No. 1032/2006 and Regulations of the Delhi Fire Service under which the roads are required to be not less than 30 feet in wide. Raising of the disputed wall will practically stop the rain water flow of the MLU into the open rain water drain constructed for common use of the MLU and the residential units. Even if it is necessary to construct a wall around the residential units, it can be constructed on the inner edge wall of the rain water drain existing between the disputed road and the 15 feet rear set back of the residential units.
2. The plaintiff has, therefore, filed the present suit seeking the relief of permanent injunction in favour of the plaintiffs and against the defendants thereby restraining the defendants its officers, agents, servants, employees, etc from further constructing the disputed wall in between the disputed road situated between the MLU and the residential units and for mandatory injunction against the defendants thereby directing the defendants to reconstruct the metalled road and to bring the same into its original condition as was existing before the construction of the disputed wall began and for declaration thereby declaring the decision and plan of the defendant no. 1 to construct the disputed wall as illegal, unlawful and null and void, the same being in violation of the Byelaws and Rules and Regulations governing the lay out plan of the area.
Neena Jain & Ors. Vs. DDA & Ors. 7/32 Suit No. 1032/2006
3. In the written statement filed by defendant no. 1/DDA, a preliminary objection is taken that the statutory notice under Section 53B of DD Act was not served upon defendant no. 1. It is further submitted though while constructing the disputed road specifications similar to the roads had been adopted but that does not change the use of the same automatically and even in the original plan, the status of disputed road between the residential units and MLU is a pedestrian street and the same can be used as a pedestrian street only. Further the MLU is four storeyed only and such type of buildings are 'low rise' as per fire department in which movement of fire tender is not required. It is further submitted that the depth of these commercial plots is 12 mtrs. only and sufficient parking and vehicular approach is available from the front side. It is further stated that there is a corridor linking rear side to the front in between every two plots at a maximum distance of 13 mtrs and therefore there is no necessity of any vehicular approach to the commercial complex from the rear side. It is further submitted that as per the provisions under Master plan/Gazette notification, the set backs are governed by the plot side and not by the width of road. Further the provision of service lane etc is not applicable for the spaces as stated by the plaintiffs. It is stated that fencing is being provided for the convenience and security of residential units and was taken up on the Neena Jain & Ors. Vs. DDA & Ors. 8/32 Suit No. 1032/2006 request of Residents Welfare Association after getting necessary approval from the concerned Sr. Architect. Further a passage of 3.16 mtrs. is left with every building which is sufficient for carrying goods. The issuance of letter referred to is however not denied.
4. The plaintiff filed replication to the written statement of defendant no. 1 wherein the plaintiff reiterated and reaffirmed the contents of the plaint and denied the averments made by the defendants in their written statement. It is further stated that plaintiff had filed an application under Section 80(2) of CPC for granting the leave to file the present suit without serving any notice on 13.12.2001 and the defendants had not objected to the same. It was denied that MLU was 'low rise' as per Fire Department and as such movement of Fire tender was not required. Further, it is stated that even the Chief Fire Officer of Delhi Fire Services vide his letter No. F5/(9)/DFS/2001/330 dated 24.12.2001 to the Vice Chairman, DDA had raised severe objections to the disputed wall.
5. In the written statement filed by defendant no. 3, it is stated that the disputed road is exclusively for the use and enjoyment of the allottees/occupiers/visitors of the residential units and came into existence much before the development of the MLU. It is further submitted plaintiffs' shops have separate entry and they are not supposed to have opening of their doors in the rear side of MLU, i.e Neena Jain & Ors. Vs. DDA & Ors. 9/32 Suit No. 1032/2006 facing the disputed road and the same is illegal and contrary to approved plan of the MLU. Further the residential units were open to public nuisance, health hazards and threat to life and property due to lack of dividing wall between the residential units and the MLU and due to this reason, both allottees as well the defendant no. 3 approached DDA to represent their grievances and it was finally decided by defendant/DDA after due permission from its competent authority that a wall would be constructed between the residential units and the MLU.
6. From the pleadings of the parties, following issues were framed by my Ld. Predecessor on 28.01.2004:
1. Whether the suit of the plaintiff is bad for want of service of notice under Section 53B of DDA Act? OPD
2. Whether the plaintiff has no locus standi to file the present suit? OPD
3. Whether the plaintiffs has not approached the Court with clean hands? OPD
4. Whether the plaintiff is entitled for decree of permanent injunction, as prayed for? OPP
5. Whether the plaintiff is entitled for decree of mandatory injunction, as prayed for? OPP
6. Whether the plaintiff is entitled for decree of declaration, as prayed for? OPP Neena Jain & Ors. Vs. DDA & Ors. 10/32 Suit No. 1032/2006
7.Relief
7. Plaintiffs examined five witnesses in their support. PW 1, Sh. R.K. Jain, Secretary of plaintiffs no. 11 association, entered the witness box on 03.10.2006 and tendered his affidavit Ex P 1 in evidence. By the said affidavit PW 1 stated that he is the authorised representative of the plaintiffs. He reiterated all the facts as were stated by the plaintiffs in their plaint.
In his cross examination PW 1 stated that plaintiff no. 11 is a registered association though at the time of filing of the present suit, it was not registered. PW 1 further stated that the notice of present suit was served upon DDA in the month of September or October though the same is not on file. He stated that the disputed road was pucca road but he could not say if it was a pedestrian street or a motorist road and stated that the same can be ascertained only by DDA sanctioned plan. He admitted that in construction of the disputed road specifications similar to roads had been adopted. He admitted that the construction of the disputed wall was according to the modified sanctioned plan though it was not in accordance with the original sanction. He further admitted that the residential units were in existence before the construction of the MLU. He stated that there was an open space of 30 to 40 feet between the main road and the MLU which is used as a car parking. He further Neena Jain & Ors. Vs. DDA & Ors. 11/32 Suit No. 1032/2006 stated that there were a number of vegetable vendors and other street vendors around the market. He admitted that staircases leading to the first, second and third floor were on the front side as well as on the back side. He voluntarily added that four staircases were in the front side and twelve were in the back side of the commercial complex. He further admitted that the site plan filed by the plaintiffs show that disputed road is a pedestrian street and there was nothing to show that the same was a common.
8. PW 2, Sh.Udai Veer, Station Officer, Delhi Fire Service entered the witness box on 31.05.2007 and relied upon copy of letter from Chief Fire Officer to DDA dated 24.12.2001 bearing No. F5/(9)/DFS/2001/330 as Ex PW 2/A which states that the disputed wall obstruct the movement of fire tenders, etc. He further relied upon copy of the dispatch of this letter as Ex PW 2/B. In his cross examination, PW 2 could not say if any inspection was carried out by the fire department at the time of writing this letter. He further stated that there was no reply from DDA to the letter Ex PW 2/A. In his further cross examination he admitted that one letter dated 08.01.2002 which is Ex PW 2/D11 was a reply from DDA to the letter Ex PW 2/A. He could not say what action was taken in accordance with letter Ex PW 2/D11. He further identify the letter dated 14.03.2002 Neena Jain & Ors. Vs. DDA & Ors. 12/32 Suit No. 1032/2006 from Deputy Chief Fire Officer to DDA, copy of which is Ex. PW 2/D31. This letter states that no NOC was required for construction of disputed wall because it is between two low rise blocks.
9. PW 3, Sh. Sukhpal Singh, UDC, Chief Engineer, Dwarka entered the witness box on 31.05.2007 and relied upon document Ex PW 3/A which is the copy of letter from DDA to RWA dated 11.01.2001 bearing No. C.E(DWK)/11(2)2001/I/81 dated 11.01.2001. Ex PW 3/A states that the disputed road is a common road and there is no space for construction of boundary wall over the same.
10.PW4, Sh.Vijay Kumar Verma, Architectural Assistant, entered the witness box on 31052007 with the original development and layout plan of MLU and residential unit. He tendered attested photocopies of the same as Ex PW4/A and Ex PW4/B. In his cross examination, he admitted that every plan was not to be sent to Delhi Urban Art Commission and the plan of boundary wall was also not sent to the Commission. He stated that it was proposed in the layout plan as well as development plan that a chain link be built upto height of 2.1 meters between MLU and residential units, and a reference of the same was at point A in the document Ex PW4/A.
11. Plaintiff no. 12 examined only one witness in its support. PW12, Sh. S.N. Garg, entered the witness box on 23.01.2008 and tendered his Neena Jain & Ors. Vs. DDA & Ors. 13/32 Suit No. 1032/2006 affidavit Ex PW 12/A wherein it is stated that he is the Secretary of RWA (LIG Flats) and stated the same facts as were stated in the plaint. He relied upon document Ex PW12/1 which is the copy of letter dated 11.01.2001 from DDA (which is same as Ex PW 3/A. In his cross examination, he stated that he was the Secretary of RWA (LIG Flats) since 2000/2001. He admitted that he had no shop in the MLU and was no longer living in the residential units and also that he was not aware if any theft or burglary had taken place in the residential units. He stated that plaintiff no 12 was a registered society. He stated that there were 54 flats in total on the ground floors. He further stated that there were around 8 to 10 flats in which doctors were running their clinics. He could not state if he had filed his authorization to appear in the matter but stated that a resolution to that effect was passed in 2001 in which around 25 members participated. He stated that a meeting of executive members was held on 08.01.2008 to discuss the contents of his affidavit. He also stated that there was no election for the executive body since 2000. He further admitted that there was a large parking space in the front side of MLU. He also agreed that no member register was being maintained by the RWA LIG Flats. He further admitted that the boundary wall was necessary to provide security to residential units but added that the planning of DDA was incorrect. He could not say what Neena Jain & Ors. Vs. DDA & Ors. 14/32 Suit No. 1032/2006 provision/bye law or regulation of master plan or zonal development plan would be violated by the construction of the disputed wall. He stated that there were about 550 flats in the residential units.
12.Defendant no 1 examined only one witness in his support. DW1, Sh. Anil Kumar Tyagi, Executive Engineer,DDA, entered the witness box on 12.03.2008 and tendered his affidavit Ex DW1/X in evidence. Ex DW1/X states the same facts as were stated by defendant no1 in its written statement. He relied on Ex DW1/1 which is copy of letter dated 23.05.2001 from Sr. Architect to Superintendent Engineer, DDA stating that there was no objection as regards the chain chain link fencing provided 34 meter were left from MLU and 56 meter from residential units. He further relied on sanctioned plans ExPW4/A and ExPW4/B. He further relied on Ex.PW2/D31 which is the copy of letter from Dy. Chief Fire Officer to DDA dated 14.03.2002. He further relied on Mark A which is the copy of building bye laws and copy of revised lay out plan 1995 as Ex DW1/4. He further relied on letter dated 28.11.2001 from Architect to Ex. engineer, DDA as Ex DW1/3 stating that the solid portion of the disputed wall below the chain link may be raised to 750 mm.
In his cross examination, DW1 could not say if the disputed wall was approved by Delhi Urban Art Commission. He later stated that the proposal of upto four storey buildings prepared by DDA were not Neena Jain & Ors. Vs. DDA & Ors. 15/32 Suit No. 1032/2006 referred to Delhi Urban Art Commission. He admitted that there was no provision of boundary wall between the MLU and residential units in the original plan but the same was later approved by the competent authority when the residents of residential units submitted application for construction of boundary wall. He admitted the letter dated 04.01.2002, copy of which is Ex DW1/P1 from DDA to Chief Fire Officer containing the proposal of the disputed wall and seeking permission from them. He admitted the documents Ex PW3/A and Ex PW2/A. He could not state if 9 meters road was required to be left for special and high rise buildings. He further admitted that as per clause 4 of Rule 12.3 of the Master Plan 2021, the minimum width of local street is 9 meters but he could not say as to what types of roads and streets this clause applied to. He further stated the present suit was covered under the Master Plan 2001. He admitted that the disputed wall was not constructed at the time residential units project was completed because the same was not provided in the originally sanctioned lay out plan of the area. He further admitted that there was 3 meters wide set back towards MLU side as per the sanctioned plan. He further admitted that a drain was existing towards the residential units but added that there was a drain towards MLU side also which was dismantled by the shopkeepers by raising unauthorised construction. He further admitted that this drain towards Neena Jain & Ors. Vs. DDA & Ors. 16/32 Suit No. 1032/2006 MLU side was not indicated in the lay out plan but added that the same was indicated in the services plan approved by the Civil body. He further stated that the MLU were low rise buildings having enough space from all three sides and therefore no clearance was required from Chief Fire Officer. He admitted that disputed road was a pacca road and that the area of this pocket was more than 10000 sq. meters. He further stated that in the event of any disaster, small ambulance can enter the residential unit but not a fire tender.
13.Defendant no 3 examined four witnesses in its support. D3W1, Sh. Mahender Pal, Former Joint Secretary of RWA(SFS Flats), entered the witness box on 22.10.2011 and tendered his affidavit Ex D3W1/A in evidence. Ex D3W1/A states the same facts as were stated by defendant no. 3 in its written statement.
In his cross examination, he admitted that all the flats on the ground floor were of LIG category. He further admitted that none of the flats on the ground floor opened towards the MLU. He admitted that there was a rain water drain between the disputed wall and the residential units. He also admitted that the same was being used by customers and visitors in MLU but rarely used by residents. He could not state if he had filed his authorization to appear in the matter. He admitted that if the boundary wall was raised over the rain water drain, it would Neena Jain & Ors. Vs. DDA & Ors. 17/32 Suit No. 1032/2006 provide same security to the residential units.
14. D3W2, Sh. Shafakat Tulla, Treasurer of RWA(SFS Flats), entered the witness box on 03.12.2011 and tendered his affidavit ExD3W2/X in evidence. In Ex D3W2/X, he states that the residential units consist of 114 LIG flats and 342 MIG flats and that due to the MLU the lives and properties of residents have been put under threat. It is further stated that the disputed road was constructed much prior to the MLU and the same was under exclusive use of the residents of residential units. He further challenges the locus of plaintiff no 11 to file the present suit.
In his cross examination, he could not state if he had filed his authorization to appear in the matter. He admitted that there was a rain water drain between the disputed wall and the residential units.
15. D3W3, HC Ram Jas from P.S. Dwarka, Sector23, entered the witness box on 13.02.2012 with the summoned record, that is, records of four FIRs lodged with PS Dwarka and tendered the photocopies of the same as Ex D3W3/1 to Ex D3W3/4 which reflect to certain acts of theft/robberies that took place in the residential units.
16. D3W4, Sh. Ravinder Singh, Fire Operator, entered the witness box on 13.02.2012 with the summoned record, that is, letter No.F5/ (9)/DFS/2002/74 dated 14.03.2002 and tendered a copy of the same as Ex D3W4/1. This document is same as the document Ex P2/D31.
Neena Jain & Ors. Vs. DDA & Ors. 18/32 Suit No. 1032/2006
17.I have heard all the parties at length and have perused the record carefully.
18. Plaintiffs submit that there is no sanctioned plan which shows that a wall is to be built between the MLU and the residential units. It has further been stressed by the plaintiffs that as per Rule 11.3 of the Delhi Building ByeLaws 'road' and 'street' are the same and therefore, there is no merit in the contention raised by DDA that the disputed road is a pedestrian street. Further as per this Rule the width of the street should be not less than 9 meters.
19. On the other hand, defendant no. 1/DDA submits that the master plan 2021 is not applicable to the disputed road. It is further stated that the plaintiffs have not filed any building plan to support their contention that the disputed wall was not a part of the original sanction plan. Defendant no. 1 has placed stress on the fact that plaintiff no. 11 is still an unregistered society and as such, it has no locus to pursue the present matter through Sh. R.K. Jain. DDA also states that only plaintiff no. 1 to 10 are objecting to the construction of the disputed wall while the hundreds of other people living in the residential units or doing their business in the MLU have no objection. This according to DDA indicates that it is not the security or the safety of the area that is the underlying cause of filing the present suit but it is the vested interest of these 10 Neena Jain & Ors. Vs. DDA & Ors. 19/32 Suit No. 1032/2006 people only.
Defendant no. 3 had laid special stress on the locus of plaintiff no. 11 to file the present suit on behalf of plaintiff no. 1 to 10. It is stated that there is no document on the record to say that plaintiff no. 11 was so authorised by the remaining plaintiffs. Further defendant no. 3 states that plaintiffs have been unable to produce any proof of membership . In such eventuality, it is stated that the plaint being signed by plaintiff no. 11 is no plaint at all.
Defendant no. 3 also submits that though plaintiffs case is that the stair cases leading to the upper floors are from the back side, no such policy has been placed on record. It is also stated that the plaintiffs have concealed material facts, for example the fact that there are alternate ways to reach the rear side of the market, and therefore, they are not entitled to the equitable relief of permanent injunction.
20. My issue wise findings are as follows :
Issue no 1: Whether the suit of the plaintiff is bad for want of service of notice under Section 53B of DDA Act? OPD The onus of proving this issue was on the defendants. No evidence has been led by the defendants to show that no notice under Section 53B Delhi Development Act was served. On the other hand Section 53B Delhi Development Act itself carves out exception in clause Neena Jain & Ors. Vs. DDA & Ors. 20/32 Suit No. 1032/2006 (3) for injunction suits of which object would be defeated by the giving of the notice or postponement of institution of suits. The present suit being one for injunction is exempted under Section 53B(3) Delhi Development Act. No evidence has been led to show that it is not covered by Section 53B(3) Delhi Development Act.
Accordingly, this issue is decided in favour of the plaintiffs and against the defendants.
21. Issue no 2: Whether the plaintiff has no locus standi to file the present suit? OPD The onus of proving this issue was on the defendants. The present suit has been signed on behalf of all the plaintiffs by Sh. R.K. Jain, who is stated to be the secretary of plaintiff no 11. Plaintiff no. 11 is Central Market, Dwarka, Sector6 Welfare Association which admittedly was not registered at the time of institution of the present suit. The status of plaintiff no 11 as described in the plaint is 'registration of which has been applied for'.
The present suit was filed accompanied with an application under Order 1 Rule 8 Civil Procedure Code seeking permission that all the plaintiffs be allowed to file and prosecute the suit through plaintiff no. 11, through its Secretary Sh. R.K. Jain.
Though I find merit in the contention raised by the defendants Neena Jain & Ors. Vs. DDA & Ors. 21/32 Suit No. 1032/2006 that an unregistered society cannot sue, however the facts of the present case are different. In the present suit, the authorization of plaintiff no.11 is not on account of it being an association/society for the welfare of MLUallottees/owners. It is on account of the application under Order 1 Rule 8 Civil Procedure Code which was moved alongwith the plaint. Order 1 Rule 8 Civil Procedure Code states that where there are numerous persons having the same interest in one suit, then one or more of such persons may with the permission of court sue on behalf of all others. Here plaintiff no.11 albeit not a registered society but is still a conglomeration of persons (plaintiffs no 1 to 10.) Plaintiff no.11, therefore, can be understood to be 'more of such persons' as stated in Order 1 Rule 8 (1)(a) Civil Procedure Code. The application under Order 1 Rule 8 Civil Procedure Code clearly authorizes Sh R.K. Jain and therefore it is of no relevance that no evidence was led to show that Sh. R.K. Jain is the Secretary of plaintiff no.11.
Accordingly, this issue is decided in the favour the plaintiffs and against of the defendants.
22. Issue No. 3 : Whether the plaintiffs has not approached the Court with clean hands? OPD The onus of proving this issue was on the defendants. In order to show that the plaintiffs have not approached the Court with clean Neena Jain & Ors. Vs. DDA & Ors. 22/32 Suit No. 1032/2006 hands, defendants have pointed out that though plaintiffs are heavily relying on the fact that as per the Building ByeLaws, MLU are required to have staircases only on the rear side but no layout plan showing the same has been filed by them. Further plaintiffs claim that there is no way to reach the upper floors except these stair cases on the rear side but in his testimony PW 1 stated that staircases leading to the first, second and third floor were on the front side as well as on the back side. PW1 further stated that four staircases were in the front side and twelve were in the back side of the commercial complex. Further PW 12 admitted that there was a large parking space in the front side of MLU. However there is no mention of these facts in the plaint. Clearly there is concealment of facts by the plaintiffs. Instead of disclosing these crucial and fundamental facts, the plaintiffs made fraudulent, misleading and false averments in paragraph 11 of the plaint that all the 16 commercial plots have to build their staircases from the back road only and further that there is no other way for customers/ goods vehicles to reach the shops on the rear side of MLU except this back road.
It has been observed by the Hon'ble Apex Court in the case of Oswal Fats and Oils Limited v. Additional Commissioner (Administration), Bareilly Division, Bareilly and others cited at (2010) 4 SCC 728 that:
Neena Jain & Ors. Vs. DDA & Ors. 23/32 Suit No. 1032/2006 "It is settled law that a person who approaches the Court for grant of relief, equitable or otherwise, is under a solemn obligation to candidly disclose all the material/important facts which have bearing on the adjudication of the issues raised in the case. In other words, he owes a duty to the court to bring out all the facts and refrain from concealing/suppressing any material fact within his knowledge or which he could have known by exercising diligence expected of a person of ordinary prudence. If he is found guilty of concealment of material facts or making an attempt to pollute the pure stream of justice, the court not only has the right but a duty to deny relief to such person."
Further in Charanjit Thukral & Anr. vs Deepak Thukral & Anr decided on 29.07.2010, the Hon'ble Delhi High Court observed that:
"It is the duty of the party asking for an injunction to bring to the notice of the Court all facts material to the determination of his right to have injunction and it is not an excuse for him to say that he was not aware of the importance of any facts which he has omitted to bring forward. Where Plaintiff does not act bona fidely and does not put every material facts before the Court, the Court is within its inherent power to refuse to grant him injunction, even though there might be facts upon which injunction Neena Jain & Ors. Vs. DDA & Ors. 24/32 Suit No. 1032/2006 might be granted...."
Clearly the facts concealed by the plaintiffs were material and important facts which have direct bearing on the adjudication of the issues raised in this case. Plaintiffs were under a duty towards the court to bring out all these necessary facts. It can therefore, be said that plaintiffs have not approached the court with clean hands and are guilty of suppression of material facts as well as of making false and misleading statements before the court.
Accordingly, this issue is decided against the plaintiffs and in the favour of the defendants.
23. Issue No. 4. Whether the plaintiff is entitled for decree of permanent injunction, as prayed for? OPP Issue No. 5. Whether the plaintiff is entitled for decree of mandatory injunction, as prayed for? OPP Issue No. 6. Whether the plaintiff is entitled for decree of declaration, as prayed for? OPP Issue nos 4, 5 and 6 are connected and are therefore, being decided together. The onus of proving these issues was on the plaintiffs. Plaintiffs have proved by Ex PW3/A that on 11.01.2001 initially the request for the disputed wall was declined by DDA on the ground that there was no provision for the same and also because the same was a Neena Jain & Ors. Vs. DDA & Ors. 25/32 Suit No. 1032/2006 common road for MLU and residential units. Ex PW3/A is admitted by DW1 and is proved as such. Plaintiffs have further proved by Ex PW2/A which is a copy of letter dated 24.12.2001 from Chief Fire Officer to DDA, that during inspection it was found that the disputed wall would obstruct the movement of fire tenders, etc. Ex PW2/A is admitted by DW1 and stands proved as such.
However by letter Ex DW1/P1 it is shown that DDA wrote to the Chief Fire Officer on 04.01.2002 to seek approval of the proposed plan of the disputed wall at a distance of 3 meters from the MLU and 6 meters from the residential units over the disputed road (which is referred to as 'pedestrian road' in this letter.) This letter clearly states that copies of the layout plan were sent alongwith the letter and the Chief Fire Officer's comments were sought regarding the proposed wall/disputed wall in case there is any fire in the residential units or the MLU. Further by Ex PW2/D31 (which is same as Ex D3W4/1) it is also proved that in response to the letter Ex DW1/P1, Dy. Chief Fire Officer had stated that no NOC from Fire Department was necessary for the construction of disputed wall as both the MLU and the residential units were low rise buildings.
Thus, it appears that the conflicting stands taken by the Fire Department created confusion between the parties as to whether the Neena Jain & Ors. Vs. DDA & Ors. 26/32 Suit No. 1032/2006 disputed wall, if constructed would pose dangerous in the event of fire or other such emergency or not. It is now to be seen which view expressed by the Fire Department is to be paid heed to. The first view expressed on 24.12.2001 is stated to be based on the inspection of the disputed road while the second view is stated to be based on the study of layout plans of the area. A careful perusal of the letter dated 24.12.2001, which is Ex PW2/A, reveals that it is based on the understanding that a wall was proposed over the '20 feet' road between MLU and residential units. However, it is the admitted case between the parties that the disputed road between MLU and residential units is at least 9 meters wide (that is, over 29 feet as shown in Ex DW1/P1 or 30 feet as stated in the plaint). This, therefore, brings the earlier view as expressed in Ex PW2/A under a cloud. On the other hand, the view expressed in Ex PW2/D31 (also Ex D3W4/1) is in response to the letter Ex DW1/P1. Ex DW1/P1 was accompanied with copies of layout plan and contained description of the area. It posed specific questions on the point whether such proposed wall/disputed wall would hinder fire fighting operations in case of any emergency. Thus the view expressed in Ex PW2/D31 appears to be more correct and credible.
24. The other ground taken by the plaintiffs in their plaint is that ambulance and vehicles carrying goods to the shops in MLU will not be able to Neena Jain & Ors. Vs. DDA & Ors. 27/32 Suit No. 1032/2006 reach the staircases which are on the back side of the MLU if the disputed wall is constructed. As far as vehicles carrying goods are concerned, it is shown by Ex PW4/A and Ex PW4/B that the disputed road is a pedestrian street. As per the Master Plan, vehicular traffic is to be avoided on pedestrian streets. Naturally then, heavy vehicles carrying goods are not suppose to be using the disputed road which is meant for pedestrian use. Furthermore admittedly there is a huge parking space in front of the MLU. Defendant's contention that there is a corridor linking rear side from the front in between plots at a maximum distance of 13 meters has also remained uncontested by the plaintiffs. This supports the contention of defendant no. 1 that there is sufficient parking and vehicular approach available from the front side. In so far as ambulance vans are concerned, 3 meters wide road is sufficient for their passage and as per the letters Ex PW2/P1 and Ex PW4/A, defendant no. 1 is planning to leave at least 3 meters road from the MLU.
25. Another ground raised by plaintiffs is that the disputed wall will stop the rain water flow of the MLU into the open rain water drain constructed for common use of the MLU and the residential units. However no evidence was led to show the same. DW1, D3W1 and D3W2 have admitted that there was an open drain between the disputed wall and residential units but plaintiffs could not establish that there was none between the Neena Jain & Ors. Vs. DDA & Ors. 28/32 Suit No. 1032/2006 disputed wall and the MLU. On the contrary DW1 had submitted that there was an open drain between MLU and the disputed wall which had been dismantled by the shop owners/allottees of MLU. Thus this contention of the plaintiffs has remained unproved.
26. Another ground for challenging the construction of disputed wall is that as per the original sanctioned plan, the disputed road is common for MLU and the residential units and as per letter Ex PW3/A there is no space for construction of a wall. However, this is no ground for opposing the construction of the disputed wall. Development/redevelopment of an area necessarily involves changes in the original layout plans, if the same are otherwise as per the Master Plan and the Building Bylaws.
27. Another ground for challenging the construction of disputed wall is that it is in violation of DDA's Building Byelaws and Rules and Regulations. The plaintiffs in their support have relied upon Building Byelaw 6.2.4.1 of the Building ByeLaws 1983. As per this Byelaw, the minimum width of approach road to multistoreyed buildings of more than 15 meters height or to special building shall be 9 meters. Special buildings have been explained as assembly (museums, theatres, assembly halls, dance halls, etc), institutional (hospitals, custodial institutions, jails, prisons, etc), industrial (mills, dairies, factories, etc), storage (warehouses, garages, stables, etc) or hazardous occupancies. However, there is Neena Jain & Ors. Vs. DDA & Ors. 29/32 Suit No. 1032/2006 neither anything to show that the MLU or the residential units are more than 15 meters in height, nor that they fall under the defined special buildings. On the contrary, in view of Ex PW2/D31 (also Ex D3W4/1), the MLU and residential units appear to be low rise buildings. Further as per Building Byelaw 2.54, the MLU appear to be falling under the head of 'business buildings' or 'mercantile buildings' and residential units falls under the head of 'residential buildings'. Hence Byelaw 6.2.4.1 cannot apply to the present case.
It is also stated that by the plaintiffs that as per Annexure J, Building ByeLaws, minimum right of way should be 30 feet or 20 feet depending upon the width of the road on which the plots front. However this has been disputed by the defendants by saying that the size of setbacks depends upon the size of plot as per the Master Plan. According to this, defendants state that setbacks do not apply to the MLU. It is further stated by the defendants that in case of any conflict between the Master Plan and the Building Bye -laws, the Master Plan prevails. No evidence has been led and no Rule/Regulations, etc has been brought to the knowledge of the court by the plaintiffs to support their contention. Hence this contention remained unproved.
28. Yet another ground for filing the present suit is that the construction of the disputed wall is stated to be unethical, unaesthetical and against the Neena Jain & Ors. Vs. DDA & Ors. 30/32 Suit No. 1032/2006 planning norms of the modern city. In their support, both the plaintiffs and defendants have relied upon 'Procedure for Clearance from Delhi Urban Art Commission' under the Delhi Building ByeLaws. As per the plaintiffs, the construction of disputed wall would be covered under clause (A) under 'Guidelines for Submissions of Projects' and therefore, it is stated by the plaintiffs that the approval from Delhi Urban Art Commission was compulsory. Defendants on the other hand claim that the same would be covered under clause (B) and therefore the MLU not being more than four storeys, permission from Delhi Urban Art Commission was not required.
The relevant portions of the above said Byelaws are reproduced herein for the sake of ready reference:
Clause (A) Development/Redevelopment of projects of areas for residential complexes, commercial, civic or community complexes, government buildings...
Clause (B) Individual buildings and engineering schemes, including overpasses/underpasses...
Clause (C) Statues, street/garden furniture...
It is the case of defendants that the MLU consists of several individual buildings developed by different builders and the same are, therefore, not commercial complex. I am unable to agree with the Neena Jain & Ors. Vs. DDA & Ors. 31/32 Suit No. 1032/2006 contention of the defendants that the disputed wall only pertains to 'individual buildings' of MLU. The disputed road, as it exists today, abuts both to the MLU and residential units. In such eventuality, the construction of the disputed wall would be covered under 'development/redevelopment projects of areas for residential complexes' under clause (A) if not under 'commercial, civil or community complexes.' Thus construction of the disputed wall required mandatory permission from Delhi Urban Art Commission which was admittedly not taken.
However, in view of the discussion under Issue no 3 and in light of the judgments mentioned therein, this Court is under duty to refuse relief to the plaintiffs who have concealed material facts from the Court and have made false and misleading statements. Plaintiffs are not entitled to any relief from this Court. Accordingly, these issues are decided against the plaintiffs and in favour of the defendants.
Relief :
In view of my aforesaid discussion, the suit of the plaintiff is hereby dismissed. Parties to bear their own costs. File be consigned to record room.
Pronounced in the open court,
Today on 26.07.2012. (Richa Gusain Solanki)
Civil Judge(West)
THC, Delhi/ 26.07.2012
Neena Jain & Ors. Vs. DDA & Ors. 32/32