Delhi District Court
Sh.Inderjeet Banerjee vs Smt. Madhu Chopra on 30 January, 2016
IN THE COURT OF SH. MUNISH MARKAN, SENIOR CIVIL JUDGE CUM
RENT CONTROLLER ( SOUTH EAST), DISTRICT COURTS, SAKET,
NEW DELHI
CS No:699/13
Unique I/D No.02406C0329242013
Sh.Inderjeet Banerjee
S/o Late Sh. N. K. Banerjee
R/o H. No. 60A/A12,
Kalkaji Extension,
New Delhi - 110019. .....Plaintiff
Versus
1. Smt. Madhu Chopra
W/o Sh. Sanjeev Chopra
2. Sh. Sanjeev Chopra
S/o P. C. Chopra
R/o H. No. 60B/A12,
1st Floor, Kalkaji Extension, New Delhi - 110019.
3. Sh. Vinod Gupta
S/o M. L. Gupta
R/o Flat No. 60C/A12,
2nd Floor, Kalkaji Extension,
New Delhi - 110019.
4. The Commissioner,
South Delhi Municipal Corporation,
Civic Center, New Delhi.
5. The S.H.O.
P.S. Govind Puri, New Delhi - 110019. ....Defendants
Date of institution of suit : 28.11.2013
Date on which Judgment reserved : 23.01.2016
Date on which judgment pronounced : 30.01.2016
Decision : Decreed
CS No.699/13 1/18
SUIT FOR PERMANENT AND MANDATORY INJUNCTION
J U D G M E N T
1. This is a suit for permanent and mandatory injunction filed by the plaintiff being aggrieved by the alleged illegal installation of water tanks by the occupants of the upper floors in the same building (defendant no. 1, 2 and 3) and also on the ground of unauthorized construction on the terrace of the building by defendant no. 3.
2. The case of the plaintiff is that he is the owner and in possession of ground floor flat no. 60A/A12, Kalkaji Extention, New Delhi residing there for many years. The defendant no. 1 and 2 (wife and husband) are the occupants of the first floor in the same building having flat no. 60B and defendant no. 3 is the owner and in occupation of second floor (wrongly written as first floor) bearing flat no. 60C in the same building. Defendant no. 1 had filed a civil suit against the plaintiff seeking relief of installation of third water tank in the common area but the same was dismissed by the Court of Ms. Pooja Gupta, Ld. Civil Judge, Saket, New Delhi vide judgment dated 30.03.2013.
3. It is further stated that defendant no. 1 and 2 had not removed the said third water tank from the common area/public land as well as the fitted structure and pipelines on the same till date despite dismissal of their suit and despite an Order U/s 133 CrPC passed by the SDM on 07.06.2013. The said CS No.699/13 2/18 water tank is creating nuisance and is injurious to health of the plaintiff who is at ground floor. Defendant no. 1 and 2 are already having two more water tanks of higher capacity beyond the permissible limit of DDA, one of which is on terrace and the other is at the scooter garage and not on the specified location allowed by DDA. As per DDA guidelines, policy and procedure one resident can have two water tanks only.
4. It is further stated that defendant no. 3 who is having three water tanks i.e. two at the terrace and one at the scooter garage, had also installed third water tank of 1000 litre capacity at the ground floor in the common area which is quite illegal. Defendant no. 3 has also encroached the terrace for his exclusive use and has illegally built up rooms, kitchen, toilets etc and therefore, denied the access/right of way to the plaintiff to the terrace at the original specified location of the water tank. On 30.06.2012, when the plaintiff tried to approach his water tank at the terrace along with a DJB official for routine checkup, he was beaten by defendant no. 3 and FIR No. 311/12 U/s 325 IPC, PS Govind Puri was registered. Plaintiff also served a notice U/s 80 CPC read with Section 468 DMC Act but to no avail.
5. Therefore, the present suit is filed whereby the plaintiff prayed to direct the defendant no. 1 and 2 to remove the third water tank along with fitted structure and pipelines from the common area adjacent to the flat of the CS No.699/13 3/18 plaintiff, and with a further prayer to direct defendant no. 3 to remove the fourth illegal water tank from the common area along with structure and pipelines. Plaintiff further prayed to direct defendant no. 3 and 4 to demolish the illegal construction at the terrace and create right of way to access the water tank of the plaintiff. Plaintiff further prayed for directing defendant no. 3 and his servants etc not to restrain the plaintiff and his family members from peaceful ingress and egress to the terrace for common services i.e water tank, etc. Plaintiff further prayed to direct defendant no. 5 SHO to ensure the safety of the plaintiff and his family. Plaintiff further prayed to direct the defendant no. 1, 2 and 3 to remove the water tanks of higher capacity and not on specified location on the terrace of the building.
6. Joint written statement was filed by defendant no. 1, 2 and 3 wherein they stated that plaintiff has no locus standi to file the suit and the plaintiff has himself made material alteration in the structure of the building which is not permissible and the defendants have not made any illegal construction and done any illegal act. The plaintiff had removed the main load bearing wall of his flat at ground floor and such removal of the load bearing wall has caused cracks in the building of the defendants and dangerous to their life and property at the upper floors and they have lodged complaint with the MCD on 10.12.2009 and reminder dated 24.12.2013 but to no avail. Plaintiff has CS No.699/13 4/18 also encroached the common portion lying vacant in front of his flat. They admitted the dismissal of the earlier civil suit and stated that water tank of defendant no. 1 and 2 was broken by the plaintiff and his family and plaintiff tried to outrage the modesty of defendant no. 1 when she tried to save her water tank and a complaint U/s 353/354/509 IPC is pending with Ld. MM, Saket. They are using the water tank as per rules and regulations of DDA.
7. Defendants further stated that defendant no. 3 has only two water tanks at terrace according to the prescribed limit of DDA and MCD and has installed a water tank at the ground floor only for the purpose of storage of water in case water does not reach up to the tanks at the terrace. They admitted that defendant no. 3 has a water tank installed in the garage and this has been done by everyone in the locality due to inadequate water pressure in the area. Defendant no. 3 denied that he has raised any construction contrary to bylaws and stated that he has paid charges to the concerned authority for the construction according to demand and sanction and the construction over the terrace is as per the sanctioned norms and remaining portion of the terrace is lying vacant. The plaintiff and other occupants of the building has clear and proper approach to their tanks. Defendant no. 3 had purchased his flat in the year 2010 in the same condition and no change has been made in the said flat. The plaintiff is of quarrelsome nature and has dispute with many people in the CS No.699/13 5/18 locality and has misbehaved with women of locality for which number of complaints have been filed by the people of locality. The water tank of defendant no. 3 at the ground floor is not causing any harm to the plaintiff and without the storage of water, the occupants of the building cannot get even a single drop of water at their existing floors because of low pressure. Defendants prayed for dismissal of the suit.
8. Defendant no. 4 SDMC filed its status report wherein it stated that its officials inspected the suit property on 21.08.2014. No construction came to the light and no building material was found stacked for the purpose and the cause of contention pertains to accessibility of the roof top which is stated to be controlled by defendant no. 1 by fixing a door and keeping the same locked. During inspection, a gate was found at the entrance of roof top and lock.
9. Defendant no. 4 SHO filed a brief report stating that a kalandra U/s 133 CrPC was prepared and sent to SDM, Kalkaji.
10. From the pleadings of the parties, following issues were framed:
(i) Whether the plaintiff is entitled to decree of mandatory injunction as prayed in clause 1? OPP
(ii) Whether the plaintiff is entitled to decree of mandatory injunction as prayed in clause 2 and 3? OPP
(iii) Whether the plaintiff is entitled to decree of permanent CS No.699/13 6/18 injunction as prayed in clause 4? OPP
(iv) Whether the plaintiff is entitled to decree of mandatory injunction as prayed in clause 6? OPP
(v) Whether the plaintiff is entitled to decree of mandatory injunction as prayed in clause 5? OPP
(vi) Relief.
11. During plaintiff evidence, plaintiff examined only himself as PW1 and tendered his affidavit as Ex. PW1/1 and relied upon documents i.e. site plain of terrace as Ex. PW1/A, site plan of layout as Ex. PW1/B, photographs as Ex. PW1/C (colly), legal notice dated 23.07.2013 as Ex. PW1/D, its postal receipt and AD card as Ex. PW1/E and Ex. PW1/F, possession certificate of flat no. 60A as Ex. PW1/G, inventory form as Ex. PW1/H, copy of judgment dated 30.03.2013 as Ex. PW1/I, complaint to police dated 04.11.2011 and 08.11.2011 as Ex. PW1/J and Ex. PW1/K, copy of FIR as Ex. PW1/L and complaint dated 24.02.2013 as Ex. PW1/M, conditional order of SDM as Ex. PW1/N, policy and procedure for permission and regularization of additions/alterations in DDA flat as Ex. PW1/O, Order of SDM as Ex. PW1/P and plaint as Ex. PW1/1A.
12. During defendant evidence, defendant no. 1 examined herself as CS No.699/13 7/18 DW1 and tendered her affidavit as Ex. DW1/A and relied upon documents i.e. complaints as Ex. DW1/2 and Ex. DW1/3 and report as Mark A. Defendant no. 2 examined himself as DW2 and tendered his affidavit as Ex. DW2/A. Defendant no. 3 examined himself as DW3 and tendered his affidavit as Ex. DW3/A.
13. I have heard Ld. Counsel for the parties and gone through the record carefully. The issue wise findings of the court are as under:
14. ISSUE No. 1: Whether the plaintiff is entitled to decree of mandatory injunction as prayed in clause 1? OPP The plaintiff has prayed for direction to defendant no. 1 and 2 to remove the third water tank along with fitted structure and pipelines from the common area adjacent to the ground floor flat no. 60A of the plaintiff. Perusal of the judgment dated 30.03.2013 passed by Ms. Pooja Gupta, Ld. Civil Judge - 03 (South District) Saket, New Delhi Ex. PW1/I shows that the civil suit CS No. 336/11 filed by the present defendant no. 1 Smt. Madhu Chopra against the present plaintiff was dismissed. In that suit, the plaintiff therein i.e. Smt. Madhu Chopra had prayed to restrain the defendant no. 1 therein (present plaintiff) from disturbing and installing the water tank in the common area with further prayer to restore the original construction and place of the water tank. Perusal of the said judgment (para 40 thereof) reflects that it was held therein CS No.699/13 8/18 that plaintiff therein i.e. defendant no. 1 herein has no right to install the third water tank. That issue having been decided, once it has been held that the defendant no. 1 and 2 have no right to install the third water tank in the common area, it becomes incumbent to direct the defendant no. 1 and 2 to remove that water tank.
15. The stand of the plaintiff that the unused water tank is a breeding ground for collection of water and is a source of nuisance which may pose danger to the health of the plaintiff living in the ground floor. Further, defendant no. 1 having no right to install the third water tank, by necessary implication, have no right to keep it there for the nuisance of the person living at the ground floor. Perusal of the site plan of the ground floor Ex. DW1/P2 which is the same as Ex. PW1/B and the photographs Ex. PW1/C show that the said water tank occupies the common passage and is lying near the manhole. Therefore, allowing it to remain there without the defendant no. 1 and 2 having any right to install the same is detrimental to the health of the plaintiff and is a source of public nuisance and can become a breeding ground for insects and other diseases. Therefore, the plaintiff is entitled to removal of this water tank and therefore, the defendant no. 1 and 2 are directed to remove the same along with its fitted structure and pipelines from the common area. Accordingly this issues is decided in favour of the plaintiff and against the CS No.699/13 9/18 defendant no. 1 and 2.
16. ISSUE No. 2:Whether the plaintiff is entitled to decree of mandatory injunction as prayed in clause 2 and 3? OPP In clause 2 of the prayer, plaintiff has prayed to direct defendant no. 3 to remove the fourth water tank from the common area along with fitted structure and pipelines which is adjacent to the property of the plaintiff. As far as the position of various tanks installed by the defendant is concerned, that has been shown in the site plan Ex. PW1/B. Defendant no. 1 and 2 had filed this site plan in the earlier civil suit filed by defendant no. 1 and it is the same as Ex. DW1/P2. Defendant no. 3 on its part has not filed any separate site plan disputing the site plan of the plaintiff and has infact relied upon the same site plan. Therefore, from the site plan Ex. PW1/B it is clear that the defendant no. 3 has installed a tank at the specified location as shown in Ex. PW1/B. DW3 who is defendant no. 3 has also admitted during his cross examination that he has two water tanks installed at the ground floor, one of which is in the scooter garage and the other is of 1000 litres capacity at the ground floor.
On its part, the plaintiff has placed on record the copy of the Policy and Procedure for Permission and Regularization of Additions/ Alterations in DDA flats Ex. PW1/O and clause III thereof specified about five basic principles in case of addition/alteration and additional coverage which, inter CS No.699/13 10/18 alia, are that there is no encroachment on the public land, there is no infringement of other's rights, the service elements such as manhole, rainwater fittings, sanitary fittings, etc are not disturbed and remain exposed for periodical inspection and maintenance. Clause I (10) which specifies condonable items provides that an occupant can provide additional PVC water tank at ground floor area without disturbing the common passage. Further, clause I (21) provides the provision for additional tanks in case the existing storage tank capacity is less than 500 litres in a flat.
17. The grievance of the plaintiff is that this water tank of defendant no. 3 is just outside the window of the kitchen of the plaintiff. Ex. PW1/D site reflects so. Ld. Counsel for plaintiff has further argued that it is infringement of his rights and is encroachment on the public land. Defendant no. 3 who was also witness in the earlier suit filed by the defendant no. 1 had deposed in that suit that he has two water tanks at the terrace, though he failed to answer whether these are of 1000 ltrs and also stated that the one inside the scooter garage is of 500 litres. Therefore, it is clear that the defendant no. 3 has installed this fourth water tanks of 1000 ltr capacity outside the kitchen of the plaintiff and defendant no. 3 has failed to state as to what right he has to install this water tank in the common area more so when he is already having the water capacity of more than 500 litres. Clause I (21) of the Policy and CS No.699/13 11/18 Procedure of DDA clearly specifies that additional water tank can be installed when the existing capacity is less than 500 litres which is not the case here. The water tank outside the window of the kitchen of the plaintiff in the public area is obvious nuisance and sore for the plaintiff who is residing at the ground floor. The defendant no. 3 has no right to install additional water tanks at his own whim and fancy to the prejudice of plaintiff. Therefore, the defendant no. 3 has no right to install fourth water tank in the public area which is clearly a nuisance for the plaintiff. Therefore, the defendant no. 3 is directed to remove this fourth water tank along with its fitted structure and pipeline from the common area at the ground floor. Accordingly, this aspect of the issue no. 2 is decided in favour of the plaintiff and against the defendant no. 3.
18. Coming to prayer clause 3, plaintiff has prayed for directing the defendant no. 3 and defendant no. 4 SDMC to demolish the illegal construction at the terrace and create right way to access the plaintiff to his water tank at the terrace of the building. The stand of the plaintiff is that defendant no. 3 has raised illegal construction on the terrace. Defendant no. 3 has denied that there is any illegal construction raised by him on the terrace. In order to prove this fact, the initial onus was on the plaintiff. The plaintiff was required to prima facie prove the existence/extent of construction at the terrace and further the extent of construction permissible at the terrace and only then, he could show CS No.699/13 12/18 that the construction, if any, raised by the defendant no. 3 on the terrace was illegal and unauthorized. Defendant no. 3 on its part has denied that he had raised construction at the terrace against the DDA bylaws. Plaintiff on his part has filed only the site plan Ex PW1/A to point out the alleged unauthorized construction. Defendant no. 4 SDMC which filed its status report in the present case stated that on inspection, no construction came to light and no building material was found stacked for this purpose but it stated that there was a door fixed on the top floor which was locked.
19. Defendant has also placed on record photocopy of certain documents pertaining to the addition/alteration in respect of flat no. 60C and has also placed on record copy of certain receipts showing payments made by the previous owner of the flat and other documents which shows that construction was done by the previous owner, even prior to the year 2005. However, the defendant no. 3 for reasons best known has not exhibited these documents. Nonetheless, the initial onus was upon the plaintiff to show that the construction done by defendant no. 3 is unauthorized but there is no material evidence which suggests in this regard. Therefore, as far as this prayer of the plaintiff regarding demolition of unauthorized construction is concerned that is liable to be declined.
20. However, the plaintiff has a right to access the terrace of the CS No.699/13 13/18 property to have access to his water tank installed at the terrace floor. Perusal of the site plan Ex. PW1/A filed by the plaintiff himself shows that the water tank of the plaintiff can be easily accessed from the stairs and no additional way is required to be created as plaintiff can easily access his water tank on the terrace and defendant no. 3 is bound to give access to the plaintiff to the terrace for the repair and maintenance of the water tank. Therefore, this issue is accordingly disposed off.
21. ISSUE No. 3:Whether the plaintiff is entitled to decree of mandatory injunction as prayed in clause 4? OPP Plaintiff has also prayed to restrain defendant no. 3 and its representative from interfering in the peaceful ingress and egress to the terrace for common services i.e. water tank etc. It is clear that there is history of conflicts between the parties. It is also a matter of record that an FIR No. 311/12 Ex.PW1/E has been lodged by present plaintiff against the defendant no. 3 but right of the plaintiff to have access the terrace for repair and maintenance of his water tank cannot be disputed as held in the last issue. Therefore, it is directed that defendant no. 3 and his representatives shall not interfere in any manner to the egress and ingress of the plaintiff to the terrace for the use of the common services i.e. for water tank repair etc. This issue is accordingly decided in favour of the plaintiff and against the defendant no. 3 CS No.699/13 14/18
22. ISSUE No. 5: Whether the plaintiff is entitled to decree of mandatory injunction as prayed in clause 5? OPP Plaintiff has prayed to direct defendant no. 5 SHO to ensure the safety of the plaintiff and his family or authorized representative whenever visits the terrace of the building. No such standing direction can be given for all times as it is not practicable to enforce the same. However, plaintiff's right to access the terrace for the purpose of maintenance and repair of his water tank has already been recognized and protected. Plaintiff can always approach the defendant no. 5 in case there is any breach of law done by the defendants in this regard and defendant no. 5 is bound to take action in accordance with law. Therefore, this issue is accordingly disposed off.
23. ISSUE No. 4: Whether the plaintiff is entitled to decree of mandatory injunction as prayed in clause 6? OPP Plaintiff has also prayed to direct the removal of water tanks of defendant no. 1, 2 and 3 of higher capacity and not on specified location on the terrace of the building as per the prescribed limits and guidelines of DDA. First of all, the plaintiff has failed to point out as to what is the specified location for the installation of tanks on the terrace of the building. Further, the plaintiff has relied upon the Policy and Procedure of DDA Ex. PW1/O particularly clause I (21). Clause I (21) nowhere states as to what was the permissible capacity for CS No.699/13 15/18 the water tanks to be installed at the roof top. It provides for the provision for additional water storage tank where ever the existing water storage capacity is less than 500 litres in a flat.
Clause I (21) is reproduced as under:
"Shifting of water storage tank/raising of parapet wall upto 5' height and putting additional water storage tank. Wherever the existing water storage tank capacity is less than 500 ltrs in a flat, the existing water storage tank can either be replaced by a 500 ltrs or is possible the additional tank can be added so as to make the total storage capacity upto 550 ltrs. However, such replacement/provision of additional tank will be done only on the locations specified for such tanks and the supporting beams will be required to be strengthened suitably. Parapet wall around terrace can be increase to a height of 5'."
24. It nowhere states as to what was the permissible capacity for the water tanks to be installed at the roof top. It provides for the provision for additional water storage tank where ever the existing water storage capacity is less than 500 litres in a flat. Plaintiff has not placed on record any allotment letter for the property of defendant no. 1 to 3 which could prima facie show as to what was the sanctioned and alloted capacity and number of water tanks which are permissible to be installed by the defendant on the terrace of the CS No.699/13 16/18 property. As far as clause I (21) is concerned, it pertains to the flats where the existing water storage tank capacity is less than 500 Ltrs. which is not the case in the present case for two reasons. One is that defendant no. 3 has admitted that his two water tanks at the terrace are of 1000 Litre capacity each and defendant no. 1 during her cross examination had admitted that her water tank installed at the terrace is of 1000 Ltrs capacity. Further, the plaintiff has placed on record an annexure which is a document issued by DDA in respect of ground floor portion which is Ex. PW1/H. Ex. PW1/H gives the details of the inventory regarding fittings and fixtures which specifies that there is one RCC over tank with fittings of 540 Litres.
25. Plaintiff has not placed on record as to what is the permissible capacity for the water tanks at the terrace for the defendants. Further, the plaintiff has also failed to explain as to how the water tanks of increased capacity installed by the defendant has caused any prejudice to the plaintiff. The possibility of defendant no. 3 having higher permissible capacity of water tanks cannot be ruled out considering the fact that the defendant no. 3 has in his occupation a portion of additional construction for which the regularization charge is prima facie appears to have been paid by the previous owner of the portion of defendant no. 3. Though these documents have not been proved but that does not lighten/shift the burden of the plaintiff to prima facie show that CS No.699/13 17/18 the defendant no. 1 to 3 does not have the permission to install the water tanks of higher capacity. It is not the case of the plaintiff that because of the water tanks of higher capacity installed by the defendants no. 1, 2 and 3, any prejudice has been caused to his property. Therefore, in my considered opinion, plaintiff is not entitled to the relief as prayed for as far as this issue is concerned. Therefore, this issue is decided against the plaintiff and in favour of the defendants.
26. Relief.
Suit of the plaintiff is partly decreed and defendant no. 1, 2 and 3 are directed to remove the water tanks along with fitted structure and pipelines from the area adjacent to the flat of the plaintiff i.e. Flat no. 60A/A12, Kalkaji, New Delhi and defendant no. 3 and its representatives are directed not to restrain the plaintiff and his family members to the ingress and egress to the terrace for common services i.e. care and maintenance of the water tanks. Further, defendant no. 5 SHO PS: Govindpuri is directed to take action in accordance with law in case any breach of law done by any of the parties. Decree sheet be prepared. Parties to bear their own costs.
File be consigned to Record Room.
(Munish Markan)
Announced in the open court on SCJCumRC(SouthEast)
On 30.01.2016. Distt.Courts, Saket,New Delhi.
CS No.699/13 18/18