Delhi District Court
Smt. Geeta Narula vs Smt. Sumitra Devi on 13 May, 2011
IN THE COURT OF SH. SANJAY SHARMA, JSCCCUMASCJCUM
GUARDIAN JUDGE (WEST): DELHI
Suit No. 2462/08
Unique Case I.D. No. 02401C0072631998
Smt. Geeta Narula
W/o Sh. Ravi Kumar Narula
R/o C34, Bhagwan Dass Nagar,
East Punjabi Bagh, Delhi ...........Plaintiff
Versus
1. Smt. Sumitra Devi
W/o Sh. Sat Narain Garg
2. Smt. Anjali
W/o Sh. Satish Kumar
R/o WZ1B, Punjab Garden,
East Punjabi Bagh,
New Delhi.
3. Municipal Corporation of Delhi
Through its Commissioner
Town Hall, Chandni Chowk,
Delhi110 006. .........Defendants
Date of filing of the suit : 12.08.1998
Date of reserving order : 29.04.2011
Date of pronouncement of order : 13.05.2011
O R D E R
Suit No. 2462/08 Page No. 8/1
1. By the present order, the following preliminary issues framed on 17.09.2001 are taken up for disposal:
1. Whether the suit has become infructuous as MCD has regularized the unauthorized and illegal construction, if any, raised by the defendant no.1? OPD
2. Relief.
2. Briefly stated, the plaintiff filed a suit for permanent injunction and mandatory injunction against the defendants for a decree of permanent injunction restraining the defendant no. 1 and 2 from raising unauthorized construction in the property no. E20, Bhagwan Dass Nagar, Opposite Road No. 33, East Punjabi Bagh, New Delhi110026 (Hereinafter referred as 'the suit property') and further, a decree of mandatory injunction directing the defendant no. 1 to 3 to remove the unauthorized construction in the suit property on the averments that the plaintiff is a tenant in respect of shop no. 5 on the ground floor of the suit property. The defendant no. 1 and 2 had purchased the suit property from its erstwhile owner Smt. Ram Piyari. The defendant no. 1 and 2 made efforts to dispossess the plaintiff. The suit property was a single storey building. The defendants had started construction in the suit property in order to convert the existing structure into a big complex. The defendants had demolished the 3/4th portion of the existing structure and constructed first floor without sanctioned plan.
Suit No. 2462/08 Page No. 8/2
3. The case of the plaintiff is that the defendants had changed the roof of the plaintiff's shop and therefore, the walls of the plaintiff's shops had developed cracks. The defendants were raising construction on the second floor in violation of the provisions of Delhi Municipal Corporation Act, 1953 (Hereinafter referred as 'the DMC Act') and the Building Byelaws. The plaintiff made a complaint to the MCD vide application dated 05.08.1998 but the MCD had not taken action. Feeling aggrieved by the action of the defendant no. 1 and 2 and inaction of the defendant no.3, the plaintiff filed the present suit for permanent and mandatory injunction against the defendants.
4. In the written statement, the defendant no. 1 and 2 contended that they were not raising any unauthorized construction in the suit property. It is stated that the suit property was situated in a regularized colony no sanction plan was required for addition and alteration in the suit property. It is stated that the regularization fee was charged by the MCD after completion of the building. It is stated that the suit property is situated in a residential area and land use under the Zonal Plan is residential. It is stated that the plaintiff is using the suit property for commercial purposes. It is stated that the plaintiff's shop is liable to be demolished as she has encroached upon the setback which was required to be kept open to sky under the Building Byelaws. The plaintiff has constructed her property no. C34, Bhagwan Dass Nagar, East Punjabi Bagh, New Delhi without sanctioned plan and encroached the public land.
It is stated that the defendants were improving the structure by additions/ alterations after submitting the plan with the MCD. Suit No. 2462/08 Page No. 8/3
5. According to the defendant no. 1 and 2, the MCD had no objection to the construction work as it was in accordance with the Building Byelaws. It is stated that revalidation plan was submitted to the MCD. The MCD had not pointed out any illegality in the construction work undertaken by the defendants.
6. In its written statement, the defendant no. 3/MCD stated that the unauthorized construction in the suit property was regularized as per policy and guidelines contained office order no. 7/Bldg/HQ/86 dated 29.08.1986 and circular no. 9/EE(B)/HQ/89 dated 23.06.1989 and 11/Bldg./HQ/86 dated 27.10.1986. It is stated that the defendants had deposited development charges, compounding fee and penalties to the extent of Rs.99,084/ and the unauthorized construction already in the suit property was regularized. It is stated that therefore, there was no unauthorized construction in the suit property.
7. In the replication, the plaintiff controverted the averments made in the written statement of the defendants and reaffirmed the averments made in the plaint.
8. Vide order dated 17.09.2001, the Court had framed the said preliminary issues.
9. In the evidence, the plaintiff examined herself as PW1 in support of her case whereas Sh. Satnarain Garg had filed his affidavit in evidence as Attorney of the defendant no. 1 and 2. Sh. Satnarain Garg (DW1) did not appear for crossexamination. Suit No. 2462/08 Page No. 8/4
10.I have heard arguments of Sh. Ashutosh Bhardwaj, Adv. for the plaintiff and Sh. Naresh Kumar, Advocate for the defendant no. 3 and carefully considered the evidence on record.
11.None has appeared for the defendant no. 1 and 2 to submit arguments despite repeated opportunities and even they have not filed written submissions.
12.Ld. Counsel for the plaintiff argued that the defendants had raised unauthorized construction in the suit property without obtaining sanctioned plan from the MCD. He argued that the defendants have not led any evidence that the suit property was regularized by the MCD. He argued that the plaintiff has proved on record photographs of the suit property with regard to the unauthorized construction raised by the defendant no. 1 and 2 in the suit property. He argued that originally the suit property was a single storey building but the defendant no. 1 and 2 converted it into a big complex up to second floor. He argued that the MCD has admitted in its written statement that the suit property was booked for unauthorized construction on 08.09.1998. He argued that the unauthorized construction undertaken by the defendant no. 1 and 2 caused serious cracks in the suit property and therefore, the plaintiff has locus standi to file the present suit. He argued that the MCD has not taken any action in respect of unauthorized construction and therefore, the defendant no. 3/MCD should be directed to remove the unauthorized construction in the suit property.
Suit No. 2462/08 Page No. 8/5
13.Ld. Counsel for the defendant no. 3/MCD argued that the unauthorized construction in the suit property was regularized by the MCD as per its policy and guidelines. He argued that the defendant no. 1 and 2 had deposited the compounding fee of Rs. 99,084/. He argued that status report to this effect was filed by MCD on 05.03.2002 stating therein that the suit property was regularized. He argued that the plaintiff has no cause of action to seek mandatory injunction against the defendant no. 3/MCD. ISSUE NO. 1:
14. In order to discharge the onus, the plaintiff stepped into the witness box as PW1. In her affidavit, PW1 has testified the facts mentioned in the plaint.
15.It is the specific case of the plaintiff that the defendant no. 1 and 2 had raised unauthorized construction without sanctioned plan and against Building Byelaws in the suit property.
16.The plaintiff has not examined any witness from the MCD in order to prove that the suit property was not covered by any sanctioned plan or the suit property was not regularized by the MCD.
17.In her crossexamination, PW1 stated that she has no knowledge if the construction made by the defendant no. 1 and 2 was regularized by the MCD. She stated that she has no knowledge if the defendant no. 1 and 2 had started construction after getting sanctioned plan from the MCD. She stated that she has no knowledge if the MCD had sanctioned the plan of the suit property Suit No. 2462/08 Page No. 8/6 on 12.01.1999.
18.From the evidence of the plaintiff, it is evident that she has not led any evidence that the defendant no. 1 and 2 had raised unauthorized construction in the suit property. In her deposition, she stated that the defendant no. 1 and 2 had demolished the existing structure and constructed first floor without sanctioned plan. She has not examined any witness from the MCD to prove that the suit property is not covered by any sanctioned plan or regularized. In her crossexamination, the plaintiff could not deny that the unauthorized construction in the suit property has been regularized by the MCD. She could not state whether the defendant no. 1 and 2 had started construction after obtaining sanctioned plan from MCD. She stated that she has no knowledge whether the MCD had sanctioned plan on 12.01.1999. In view of the status report filed by the MCD and the crossexamination of the PW1 as stated above, it can be stated that the suit property has already been regularized by the MCD on 12.01.1999. This Court can only issue direction to the defendant no. 3/MCD to perform its statutory duties under the DMC Act. Once the property is regularized by the MCD, the Court cannot direct the MCD to take action in respect of the suit property.
19.In so far as contention of the plaintiff that the defendants have not led any evidence in order to prove their case is concerned, it can be stated that one need not to lead defence evidence to prove their case, if the defendants could show that by crossexamining the plaintiff witness that the plaintiff is not entitled to the relief payed for. In the present case, the plaintiff filed the suit without verifying Suit No. 2462/08 Page No. 8/7 from the MCD as to whether the suit property had been constructed in accordance with sanctioned plan. She had not verified from the MCD whether the suit property was regularized or not. The plaintiff filed the suit on the ground that the defendants were raising construction in their suit property. This Court is of the considered opinion that the defendants have discharged the onus placed upon them. Since the suit property is regularized and regularization fee has already been deposited, the Court cannot issue any direction to the MCD to take action in respect of the construction in the suit property.
20.Accordingly, the issue no. 1 is decided in favour of the defendants and against the plaintiff.
RELIEF:
21.In view of the finding on the issue no. 1, the plaintiff is not entitled to any relief in the present suit and therefore, the suit for permanent and mandatory injunction filed by the plaintiff is dismissed. The parties shall bear their own costs.
22.Decree sheet be prepared accordingly.
23.File be consigned to Record Room.
Announced in the open Court today the 13th May, 2011.
(SANJAY SHARMA) JSCCCumASCJCum GUARDIAN JUDGE (West) 13.05.2011 Suit No. 2462/08 Page No. 8/8