Delhi District Court
Sh. Rajendra Motwani vs Municipal Corporation Of Delhi on 15 April, 2011
Rajendra Matwani & Ors. v. MCD & Ors.
IN THE COURT OF SH. SANJAY SHARMA, JSCC-CUM-
ASCJ-CUM-GUARDIAN JUDGE (WEST): DELHI
SUIT NO.2398/08
Unique Case I.D. No._________________
1. Sh. Rajendra Motwani
S/o Late Sh. Pritamdas,
Through his Attorney,
Ms. Shanti Motwani.
2. Ms. Shanti Motwani
D/o Late Sh. Pritamdas,
Both R/o A-1/33, Janakpuri,
New Delhi - 110058. ..... Plaintiffs
Versus
1. Municipal Corporation of Delhi
Through its Commissioner,
Town Hall, Delhi.
2. The Deputy Commissioner, MCD
West Zone, Rajouri Garden,
New Delhi.
3. Dr. A. N. Goyal
R/o A-1/32, Janakpuri,
New Delhi - 110058
Second Address:
A-1/28, Janakpuri,
New Delhi - 110058
4. Sh. Ram Narayan Aggarwal
R/o A-1/32, Janakpuri,
New Delhi - 110058
5. Delhi Development Authority
Through its Vice-Chairman
Vikas Sadan, INA,
New Delhi.
6. Smt. Sarita Goel
C/o Dr. A. N. Goyal
7. Smt. Geeta Rani Aggarwal
C/o Sh. Ram Narayan Aggarwal
Both R/o A-1/32, Janakpuri,
New Delhi - 110058. ..... Defendants
Date of filing of the application : 16.12.2008
Suit no.2398/08 Page no. 1 of 21
Rajendra Matwani & Ors. v. MCD & Ors.
Date of reserving order : 14.02.2011
Date of pronouncement of order : 15.04.2011
ORDER
1. This common order shall govern the disposal of the Application under Order 7 Rule 11 read with Section 151 of the Code of Civil Procedure, 1908 (Hereinafter referred as "the Code") filed by the defendant no.3 and 4 for dismissal of the suit and another Application under Section 151 of the Code filed by the plaintiffs for removal of unauthorized construction in the 10 x 100 feet drive way in the property no.A-1/32, Janak Puri, New Delhi (Hereinafter referred as 'the suit property') adjoining the plaintiff's property.
2. Briefly stated, the plaintiffs filed a suit against the defendants for a decree of permanent injunction restraining the defendants from raising illegal construction in and/or divide the property no. A-1/32, Janakpuri, New Delhi (suit property herein) and further, a decree of mandatory injunction directing the defendants to remove the wall and other construction in the drive way of the suit property on the averments that the plaintiffs are co-owners and in possession of property no.A-1/33, Janakpuri, New Delhi as shown in green colour in the site plan. The defendant no. 3, 4, 6 and 7 are owners of the suit property as shown in red colour in the site plan. The plaintiffs' property is adjacent to the suit property. The case of the plaintiffs was that the defendants had started illegal construction in the suit Suit no.2398/08 Page no. 2 of 21 Rajendra Matwani & Ors. v. MCD & Ors.
property measuring 800 square yards (666 sq. mtrs.) without sanctioned building plan.
3. According to the plaintiffs, there is an open space for drive way in their property at point 'A' and Garage at its end at point 'B'. The defendants are required to keep the space adjacent to the plaintiffs' property open for free flow of air and light. It was stated that the defendants had raised a huge wall in the suit property adjacent to the plaintiffs' property and thereby, completely obstructed the free flow of air and light to the plaintiffs' property. The said wall and construction in the suit property is illegal and against Building bye-laws. It was stated that maximum ground coverage of 40% is permissible for a plot of land measuring 800 sq. yds. The plaintiffs had written a complaint to the defendant no. 2/MCD and also asked the defendant no.3, 4, 6 and 7 to remove the said wall and illegal construction in the suit property. The defendants failed to comply with the request of the plaintiffs and continued with the construction beyond the permissible limit, and intended to divide the suit property and obstruct their right to light and air. Therefore, the plaintiffs filed this suit for permanent and mandatory injunction.
4. The defendant no.1 and 2/MCD in their written statement stated that the MCD officials had inspected the suit property on 27.09.2005. It was stated that the suit property comprised Basement, Ground Floor, First Floor, Second Floor and Third Floor. It was stated that the construction was at its finishing stage. It was stated that the MCD had booked the unauthorized construction in the Suit no.2398/08 Page no. 3 of 21 Rajendra Matwani & Ors. v. MCD & Ors.
shape of deviations at Basement Floor, Ground Floor, First Floor, Second Floor and Third Floor of the suit property on 16.05.2005 and passed a demolition order on 31.05.2005.
5. In their written statement, the defendant no. 3 and 4 stated that the plaintiffs have carried out unauthorized construction in their property. It was stated that the plaintiffs have planted 3-4 big trees in their property adjacent to the suit property and therefore, the plaintiffs had obstructed free flow of light and air to their property. The said trees were causing inconvenience to the defendant no. 3 and 4 as they were full of insects and mosquitoes and their branches had spread over the suit property and therefore, the defendant no. 3 and 4 were raising the said wall in the suit property. The wall cannot be termed as an unauthorized construction. The said wall was erected in the presence of the plaintiffs and with their consent as the plaintiffs had stated that the trees cannot be removed and therefore, the defendant no. 3 and 4 had no option except to raise the said boundary wall. The plaintiffs had never raised any objection at the time of construction of the said wall and therefore, they are estopped by their conduct to raise objection as the defendant no. 3 and 4 had incurred huge expenditure and altered their position.
6. It was further case of the defendant no.1 and 2 that they had not carried out any construction against the building bye-laws. It was stated that the building plan of the suit property was sanctioned by the MCD. It was Suit no.2398/08 Page no. 4 of 21 Rajendra Matwani & Ors. v. MCD & Ors.
stated that the construction work in the suit property had started in December, 2004. There was no construction activity except certain minor repairs and finishing in the suit property.
7. In the written statement, the defendant no. 5/DDA stated that the defendant no. 3, 4, 6 and 7 had purchased the suit property in an open auction vide perpetual lease deed dated 31.03.2004. It was stated that the construction work was found in progress during the visit above the ground floor portion of the suit property and renovation work was found in progress in the basement and the ground floor of the suit property. It was stated that structural work was almost complete.
8. On 08.12.2005, 09.01.2006, 16.05.2006 and 04.09.2006, the MCD had filed Action Taken Report regarding demolition of various portions of the suit property.
9. Vide Order dated 08.12.2005 and 09.01.2006, the Court had directed the defendant no. 3 and 4 to file copy of sanctioned plan.
10. On 16.05.2006, the defendant no. 3 and 4 filed a copy proposed sanctioned plan.
11. Vide Order dated 09.02.2007, the Court had directed the MCD to file sanctioned site plan of the suit property.
12. On 09.04.2007, an application under Order 39 Rule 7 and Order 26 Rule 9 of the Code along was filed by the plaintiffs for appointment of Local Commissioner to visit Suit no.2398/08 Page no. 5 of 21 Rajendra Matwani & Ors. v. MCD & Ors.
the suit property and take note of illegal construction as well as reconstruction therein.
13. On 10.04.2007, the plaintiffs instead of the defendants filed the sanctioned site plan of the suit property.
14. On 16.04.2007, the defendants filed regularized sanctioned plan on record. Ld. Counsel for the plaintiffs had contended that the construction was being carried out in the suit property which was not as per regularized sanctioned plan and therefore, on the application of the plaintiffs under Order 26 Rule 9 read with section 151 of the Code, Local Commissioner was appointed. On 24.04.2007, Local Commissioner submitted his report.
15. On 12.10.2007, the defendant no.3 and 4 filed an application under Order 7 Rule 11 read with Section 151 of the Code for dismissal of the suit on the averments that the plaintiffs had filed the suit for permanent injunction and mandatory injunction seeking inter-alia, relief against the unauthorized construction and the wall of the suit property. It is stated that the defendant no.3 and 4 had made statement on the first date of appearance on 12.09.2005 that they will not raise any construction against the building bye-laws. It is stated that the suit property was substantially constructed at that stage. It is stated that thereafter, MPD-2021 was notified and building bye-laws amended and the defendant no.3 and 4 had applied for regularization of the suit property, and given any undertaking to the MCD that the unauthorized construction shown in yellow colour in the regularized plan will be removed within two Suit no.2398/08 Page no. 6 of 21 Rajendra Matwani & Ors. v. MCD & Ors.
months from the date of regularization of the plan and deposited regularization charges of Rs. 7,03,720/- on 20.03.2007. It is stated that the MCD has already filed regularized plan on record on 16.04.2007.
16. According to the defendant no.3, 4, 6 and 7, AE had inspected the suit property on 30.04.2007 and on 01.05.2007, he made a statement in the Court that the construction in the suit property is as per regularized building plan and as per MPD - 2021. It is stated that they have already removed the unauthorized construction as shown in yellow colour in the regularized plan. It is stated that the suit has become infructous on account of subsequent events and no purpose will be served by continuing the suit. It is stated that the cause of action, if any, has come to an end during the pendency of the suit. The defendants prayed for dismissal of the suit.
17. In the reply, the plaintiffs stated that plaint and accompanying documents discloses subsisting cause of action. The application is a tactic to delay the trial and final adjudication of the suit. The defendants have re- erected and extended the wall after demolition which has rendered the plaintiffs' property completely dark and unusable. It is stated that the defendants raised unauthorized construction during the pendency of the suit and despite undertaking to the Court that they will not raise illegal construction in the suit property. It is stated that Local Commissioner vide its report dated 23.04.2007 reported that large scale unauthorized Suit no.2398/08 Page no. 7 of 21 Rajendra Matwani & Ors. v. MCD & Ors.
construction was being carried out in the suit property on 16.04.2007. The defendants have raised unauthorized construction in the suit property under the garb of regularization which is not legally permissible. The matter regarding implementation of the MPD-2021 is sub-judice before the Supreme Court.
18. In the Application under Section 151 of the Code, the plaintiffs stated that the defendants had given an undertaking on 12.09.2005 that they will not carry any construction other than the sanctioned plan and the Court had directed them to be bound by their undertaking. It is stated that the MCD in its written statement reported illegal construction in the suit property and the Court had called for an Action Taken Report. It is stated that the MCD had filed various Action Taken Reports thereby reporting demolition of various parts of the suit property. It is stated that unauthorized construction in the suit property cannot be regularized. It is stated that the plaintiffs filed a Contempt Application and thereafter, the defendants came up with the excuse of regularization of the suit property. It is stated that regularization, as relied by the defendants, is submission of plan across the table. It is stated that the defendants have regularized the suit property for untimely disposal of the suit. It is stated that the regularization plan dated 29.03.2007 is mere provisional stamping of the site plan. It is stated that the report of the Local Commissioner and accompanied photographs show that the construction was undergoing in the suit property on 16.04.2007. It is stated that the defendants had raised illegal construction in the entire set back area after 29.03.2007. It is stated Suit no.2398/08 Page no. 8 of 21 Rajendra Matwani & Ors. v. MCD & Ors.
that the illegal construction had been raised after 29.03.2007 which is liable to be demolished as set backs are mandatory as per letter dated 12.12.2007 of Chief Town Planner/MCD. It is stated that regularization connotes permanence and meant to condone or cure such defects which can be attributable to the methodology.
19. According to the plaintiffs, set back of 3 mts. is mandatory towards the plaintiffs' property as per the MPD-2021. It is stated that the defendants have raised the 3 storey boundary wall towards the plaintiffs' property and thereby, rendered plaintiffs' property absolutely dark and unusable. It is stated that there is no provision for regularization in the DMC Act and no construction can be permitted in violation of Section 332 of the DMC Act. It is stated that the regularization of the suit property is null and void. It is stated that the matter pertaining to MPD - 2021 is pending before the Supreme Court and therefore, regularization was not permissible. It is stated that Mr. Dua was not competent to issue Structural Certificate as his authority was limited up to 500 Sq. mtrs and not 666 mts. of plot. It is stated that the defendants have not left any set back towards the plaintiffs' property which is mandatory as per letter dated 12.12.2007 issued by Chief Town Planner/MCD. It is stated that the MCD was not entitled to deal with the suit property in view of the pendency of the suit since 08.09.2005. It is stated that the MCD could not do any act during the pendency of the litigation which could prejudice the rights of the plaintiffs. It is stated that Side
- I of the suit property is towards the plaintiffs' property Suit no.2398/08 Page no. 9 of 21 Rajendra Matwani & Ors. v. MCD & Ors.
& minimum set back of 3 mts. is required to be left towards the Side 1 of the suit property. The plaintiffs are deprived from light and air to their property due to the wall and illegal construction raised by the defendants towards the Side - I adjoining the plaintiffs' property and prayed for removal of unauthorized construction in the drive way of the suit property.
20. In the reply, the defendant no. 1and 2/MCD stated that the prayer of the plaintiffs in the suit stands satisfied and nothing survives in the suit. It is stated that letter dated 12.12.2007 issued by Chief Town Planner/MCD shows that the coverage with the set backs of the preceding category may be allowed if the permissible coverage is not achieved with the corresponding set backs.
21. In their reply, the defendant no. 3, 4 6 and 7 stated that the suit property has been regularized by the MCD. It is stated that the DMC Act provides a procedure for the challenging the regularization. It is stated that the regularization cannot be challenged in the present suit. It is stated that the relief as prayed in the suit stands satisfied with the regularization of the suit property by the MCD. It is stated that the defendants have filed their computation in order to show that their construction is as per the building bye-laws. It is denied that the plaintiff is deprived from light and air to their property.
22. In their rejoinder, the plaintiffs stated that the regularization without permission of the Court during the pendency of the suit is hit by Doctrine of Lis Pendens. It is Suit no.2398/08 Page no. 10 of 21 Rajendra Matwani & Ors. v. MCD & Ors.
stated that the defendants have raised illegal construction even after 29.03.2007. It is stated that continuance of the construction work after 29.03.2007 renders the claim of regularization redundant and illegal. The defendants have violated the mandatory norms and provisions and rendered the plaintiff's property unusable. He argued that the illegal construction and triple storey wall raised by the defendants have stopped the light and air to the plaintiffs' property.
23. It is stated that the defendants are bound to maintain 3 meters set back towards the plaintiffs' property. It is stated that the illegal construction in the suit property towards the plaintiffs' property cannot be regularized. It is stated that Garage Block of the plot is Side - I as per RTI Reply dated 24.12.2007. It is stated that the Garage Block of the suit property is with the plaintiff's property as per Letter dated 26.05.2006 issued by Chief Town Planner, MCD. It is stated that minimum set back of 3 meters towards Side - I in respect of a plot measuring 666 sq. mts. is mandatory as per RTI Reply dated 25.01.2009. It is stated that set back of 3 meters is mandatory even in respect of the preceding category of plot of 250 to 500 sq. mts. It is stated that the regularization is illegal and void and hit by doctrine of lis pendens under Section 52 of the Transfer of Property Act and Section 23 of the Contract Act.
24. I have heard arguments of Ms. Inderjeet Saroop, Advocate for the plaintiffs, Sh. Amit Sharma, Advocate for the defendant no. 1 and 2/MCD and Sh. Praveen Suri, Advocate for the defendant no. 3, 4, 6 and 7 and perused Suit no.2398/08 Page no. 11 of 21 Rajendra Matwani & Ors. v. MCD & Ors.
the pleadings, report of local commissioner as well as documents available on the judicial file. I have also considered the written synopsis filed by the plaintiffs.
25. Ld. Counsel for the plaintiffs argued that the plaintiffs had filed the present suit as the defendant no.3, 4, 6 and 7 had raised illegal construction in the suit property and erected a huge wall adjacent to the plaintiffs' property in the drive way and thereby, rendered the plaintiffs' property absolutely dark and devoid of air.
26. She argued that the defendant no.3 and 4 had given an undertaking to the court that they will not raise any construction other than the sanctioned plan and permissible under the Building bye-laws on 12.09.2005. She argued that the defendants had continued with the unauthorized despite undertaking dated 12.09.2005 and interim order of the Court. She argued that the defendant no.1 and 2/MCD in its written statement stated that the unauthorized construction in the suit property was booked on 16.05.2005 and demolition order was passed on 31.05.2005. She argued that the MCD had taken various demolition actions in respect of unauthorized construction in the suit property vide report dated 08.12.2005, 09.01.2006, 16.05.2006 and 04.09.2006. She argued that the defendants had never challenged the demolition actions of the MCD. She argued that the said Action Taken Reports filed by the MCD show that the unauthorized construction was progress in the suit Suit no.2398/08 Page no. 12 of 21 Rajendra Matwani & Ors. v. MCD & Ors.
property despite interim orders of the court and in violation of their undertaking.
27. She argued that the defendant no.3 and 4 had not filed the sanctioned plan despite direction of the court vide order dated 08.12.2005. She argued that the defendant no.3, 4, 6 and 7 had given an undertaking to the court on 10.04.2007 that they were raising construction as per new regularized plan. She argued that as per report of Local Commissioner, large scale unauthorized construction was in progress at the time of his visit on 16.04.2007.
28. Ld. Counsel for the plaintiffs further argued that the suit property cannot be regularized as set back of 3 mts towards Side - I is mandatory as per letter dated 12.12.2007 issued by the Chief Town Planner. She argued that MCD in its reply dated 25.01.2009 has clearly stated that minimum set back in a residential building of 666 square meters is 3 meters towards Side - I. She argued that MCD in its reply dated 24.12.2007 has stated that garage block of the suit property is the Side - I. She argued that the garage block/Side - I of the suit property is adjacent to the plaintiffs property as evident from letter dated 26.05.2006. She argued that 3 mts. Set back in Side - I is mandatory even in MPD - 2021.
29. She argued Sh. Dua was not competent to issue Structure Stability Certificate in respect of plots above 500 square meters. She argued that the file pertaining to regularization is not in accordance with the Manual of Suit no.2398/08 Page no. 13 of 21 Rajendra Matwani & Ors. v. MCD & Ors.
Office Procedure, Department of Administrative Reforms, Government of India which is also applicable to MCD. She argued that the MCD has produced two files without any paging. She argued that MCD has merely filed some 'pick and choose papers. She argued that the alleged regularization plan is a mere provisional stamping of the plan submitted across the table. She argued that the regularization of the suit property vide regularization plan dated 29.03.2007 is illegal and void. She argued that regularization means permanence and condonation of an act already committed whereas the defendants were proceeding with unauthorized construction during the visit of local commissioner on 16.04.2007.
30. She argued that the fact that the defendant were carrying on construction even after 29.03.2007 shows that there is no regularization of the suit property and unauthorized construction is still exists in the suit property. She argued that regularization is not an authorization to the defendants to raise unauthorized construction in violation of Building bye-laws. She argued that the defendants re-erected and extended the boundary wall in the drive way after demolition by the MCD. She argued that the defendants cannot raise illegal construction towards the plaintiffs' property. She argued that the defendants have not produced the complete documents in terms of the order dated 13.12.2007 despite several adjournments and suffering costs. She argued that the MCD has not produced the correct record to misguide the court. She argued that the alleged regularization is a mere submission of plan across the table and against the Manual of procedure governing Suit no.2398/08 Page no. 14 of 21 Rajendra Matwani & Ors. v. MCD & Ors.
maintenance of files. She argued that the MCD had come up with the plea of regularization in order to shield unauthorized construction in the suit property. She argued that two contempt applications are already pending against the defendants. She argued that the defendant no.1/2/MCD had no authority to regularize the suit property during the pendency of the suit without leave of the Court. She argued that the suit property has never been regularized nor it could have been. She argued that the Court vide order dated 27.09.2008 had called status report but the MCD merely reiterated its stand of regularization vide report dated 23.10.2008.
31. She argued that the MCD has caused legal injury to the plaintiffs. She argued that the MCD is a statutory authority and it could not have dealt with the subject matter of the suit to prejudice the plaintiffs. She argued that the defendants rendered the plaintiff's property absolutely dark and devoid of air due to illegal construction of boundary wall up to three storey in the drive way/Side - I of the suit property. She argued that the defendants violated all norms and provision to render the plaintiffs' property dark and unusable. She argued that the regularization is hit by Doctrine of lis pendens. She relied on the judgment of Hon'ble Delhi High Court in Bhim Singh v. Amar Nath & Ors. 149 (2008) DLT 34. She argued that the plaint discloses a valid and subsisting cause of action. She prayed that the application under Section 151 of the Code be allowed and the application under Order 7 Rule 11 of Code be dismissed.
Suit no.2398/08 Page no. 15 of 21 Rajendra Matwani & Ors. v. MCD & Ors.
32. Ld. Counsel for the defendant no.1 and no. 2/MCD argued that the suit property was regularized vide File 286/Reg./B/WZ/07 dated 29.03.2007. He argued that the unauthorized construction in the suit property has already been regularized in accordance with the policy and the defendant no.3 and 4 have removed the portion shown in yellow colour in the regularized plan and red portion has been regularized. He argued that the defendant no.3 and 4 have deposited regularization charges of Rs.7,03,320/- on 20.03.2007. He argued that the Civil Court has no jurisdiction to interfere in the policy matter.
33. Ld. Counsel for the defendant no.3, 4, 6 and 7 argued that the plaintiffs had filed the suit a suit for permanent and mandatory injunction for restraining the defendants from raising illegal construction in the suit property and for removal of the said construction. He argued that the said unauthorized construction was regularized vide regularization plan dated 29.03.2007. He argued that the defendants had deposited an amount of Rs. 7,03,320/- with the MCD on 20.03.2007. He argued that the plaintiffs' case stood satisfied in view of regularization of the unauthorized construction in the suit property. He argued that the letter dated 12.12.2007 provides that if permissible coverage with set backs is not achieved than set backs of the preceding category is allowed to achieve the permissible coverage as per MPD-2021. He argued that repair of the damaged portion cannot be termed as re-construction. He argued that the DMC Act is a complete code. He argued that this court Suit no.2398/08 Page no. 16 of 21 Rajendra Matwani & Ors. v. MCD & Ors.
cannot adjudicate upon legality of the regularization plan of the suit property. He argued that the regularization plan was approved in view of MPD-2021. He argued that the plaintiff's should seek appropriate remedy under the DMC Act if they are aggrieved by the regularization plan. He argued that the letter dated 23.10.2008 shows that the non-compoundable part was demolished by them. He argued that this court cannot direct demolition of regularized construction. He argued that the suit has become infructuous in view of the regularization of the suit property. He argued that the cause of action has come to an end. He argued that the suit is liable to be dismissed.
34. The plaint can only be rejected under Order 7 Rule 11 of the Code for non-disclosure of cause of action or if it is barred by law. In order to ascertain the cause of action, the Court must consider the averments made in the plaint. It is the specific case of the plaintiffs that the construction of a wall in the drive way of the suit property is illegal, and rendered the plaintiffs' property absolutely dark and unusable. It is the case of the plaintiffs that that the defendant no.3, 4, 6 and 7 have infringed their easementary rights to light and air by erecting a wall in the drive way of the suit property. It is also the case of the plaintiffs that it is mandatory for the defendants to leave the said portion as an open space as per building bye-laws and MPD-2021 on the ground that minimum set back of 3 meters is mandatory towards the plaintiffs' property. Regularization of the unauthorized construction of the suit property vide regularization plan dated 29.03.1997 cannot be a ground of Suit no.2398/08 Page no. 17 of 21 Rajendra Matwani & Ors. v. MCD & Ors.
rejection/dismissal of the suit. The plaintiffs are entitled to establish their easmentary rights in respect of the drive way of the suit property. Further, the plaintiffs are entitled to establish that the regularization plan dated 29.03.1997 violates building bye-laws and MPD - 2021. The suit involves issue of easementary rights of air and light and, legality of the regularization plan dated 29.03.2007. Even if the regularization plan is legal and valid, the defendants have no right to infringe natural right and air of the plaintiffs. Therefore, the suit cannot be dismissed for regularization of unauthorized construction of the suit property by regularization plan dated 29.03.1997. Hence, the application under Order 7 Rule 11 is dismissed.
35. It is the specific case of the plaintiffs that minimum set back of 3 meters towards the plaintiffs' property is mandatory in view of letter dated 12.12.2007 issued by the Chief Town Planner, MCD and, Letter dated 26.05.2006, RTI Reply dated 24.12.2007, RTI Reply dated 02.12.2008 and RTI Reply dated 25.01.2009. The unauthorized construction of the suit property was regularized by the MCD vide regularization plan dated 29.03.1997. The MCD in its status report stated that the defendant no.3 and 4 had deposited regularization charges of Rs.7,03,320 on 20.03.2007 and removed the non-compoundable deviation as shown in yellow colour in the regularized plan and the unauthorized portion shown in the red colour was regularized on 29.03.1997. In view of the regularization, the court cannot pass demolition order at this stage. The plaintiffs have to establish that the regularization was done in violation of rules and Suit no.2398/08 Page no. 18 of 21 Rajendra Matwani & Ors. v. MCD & Ors.
procedure the regularization. The plaintiffs have to establish that their easmentary rights to light and air are infringed by the existing construction in the suit property. The defendants are entitled to an opportunity to establish their case. The court cannot pass demolition order only on the basis of the afore-stated RTI Reply and letters without giving opportunity to the defendants to defend their case. MCD is a statutory body. Regularization is a policy matter. The Court has a very limited jurisdiction is such matter. The Court can ascertain whether the decision violated any rule or regulation governing the regularization of the construction existing in the suit property.
36. In so far reliance of the plaintiffs on the judgment Bhim Singh v. Amar Nath (supra) is concerned, it can be stated that the said judgment is not applicable to the present case. In the said case, the petitioner had filed a suit for specific performance in respect of an Agreement of sell and during the pendency of the suit and operation of an interim order restraining transfer, alienation or parting with the possession of the suit property, the respondents had sold the land. In the said facts, the Delhi High Court held that 'such transferee has no prior equity nor any pre-existing right to seek impleadment in the suit'. This is a case of unauthorized construction and infringement of easementary rights. Doctrine of lis pendens is applicable to transfer of the suit property during the pendency of the suit. The defendants have not transferred the suit property to third person. Here, the plaintiffs are not enforcing their rights in the subject matter of the suit. They are seeking mandate to the MCD Suit no.2398/08 Page no. 19 of 21 Rajendra Matwani & Ors. v. MCD & Ors.
to perform their statutory duty and further, seeking removal of the wall in the drive way of the suit property to protect their natural right of light and air for beneficial enjoyment of their property. The MCD is a statutory authority. It has the authority to regularize the unauthorized construction as per its policy. The Court had not passed an order restraining the MCD to regularize the suit property nor could such order be passed.
37. At this stage, it can't be held that the MCD regularized the unauthorized construction in the suit property without following the established process or violated any building bye-law or provision of MPD - 2021.
38. Several issues raised by Ld. Counsel for the plaintiff, as noted above, cannot be determined without recording evidence at the trial. The plaintiffs cannot be granted final relief without conducting trial on an application under Section 151 of the Code.
39. Accordingly, the plaintiffs' application under Section 151 of the Code is hereby dismissed.
Announced in the open court (SANJAY SHARMA)
Today on 15.04.2011 SCC-cum-ASCJ-cum
Guardian Judge (West),
Delhi
Suit no.2398/08 Page no. 20 of 21
Rajendra Matwani & Ors. v. MCD & Ors.
Suit no.2398/08 Page no. 21 of 21