Delhi District Court
Smt. Shanti Devi Gupta vs Delhi Development Authority on 31 March, 2010
IN THE COURT OF SH. NARESH KUMAR MALHOTRA,
ADMINISTRATIVE CIVIL JUDGE (EAST), KARKARDOOMA COURTS,
DELHI
Suit No.: 151/05
Case ID No.: 02402C0499062005
SMT. SHANTI DEVI GUPTA
W/o Late Sh. D.P. Gupta,
R/o B-111, Vivek Vihar,
Delhi-110095
........ Plaintiff
VERSUS
1. DELHI DEVELOPMENT AUTHORITY,
Vikas Sadan, I.N.A.
New Delhi,
Service to be effected through
its Vice Chairman.
2. DEPUTY DIRECTOR (COMMERCIAL)
& Lease Administrative Officer,
DDA Vikas Sadan, I.N.A.
New Delhi.
3. PANSODIA STEEL (PVT.) LTD.
Through
Rajendra Prakash Aggarwal
43, Bara Bazar, Shahdara,
Delhi-110032
4. SH. SALIL KUMAR
S/o Late Sh. Anil Kumar
Plot no. 3, B Block,
Main Market, Vivek Vihar,
Delhi-110095
5. SH. S.S. BHATIA,
Architect,
B-2, Shopping Centre-II,
Vivek Vihar,
Delhi-110095
........ Defendants
DATE OF INSTITUTION : 20.06.2005
DATE OF RESERVING THE ORDER : 27.03.2010
DATE OF DECISION : 31.03.2010
Suit No. 151/05 Page 1/12
SUIT FOR MANDATORY AND PERMANENT INJUNCTION AND FOR
DECLARATION
JUDGMENT
1. Vide this judgment, I shall decide a suit for mandatory, permanent injunction and declaration filed by the plaintiff against defendant.
2. The essential facts for the disposal of the present suit as per plaint are that a plot bearing no. 4, in B-block, Main Market Local Shopping Centre-II, Jhilmil Residential Scheme, Vivek Vihar, Delhi (herein after will be referred to as suit property) was purchased by the husband of the plaintiff from the DDA in an auction on 30.06.70 and the perpetual lease was executed by the defendant no. 1 on 24.03.72 in favour of the husband of the plaintiff. After the death of husband of the plaintiff in the year 1985, the perpetual lease was transferred in the name of the plaintiff by the DDA. Plaintiff is the lessee of the suit property. Husband of the plaintiff constructed a four storied building upon the suit property and the suit property was made as per plan sanctioned by DDA. It is also averred that there is one another building at plot no. 3 adjacent to the suit property in the same shopping centre -II, Vivek Vihar, Delhi. Defendant no. 3 is the allottee of the plot no. 3. Defendants no. 4 & 5 are the occupier of the ground and first floor of the building in plot no. 3 respectively. The suit property consists of two shops on ground floor facing towards the pavement which is open up to sky. First, second and third floor of the building of the plaintiff has six windows on each floor facing towards the pavement for the purpose of fresh air and light. There are no other ways except the three windows on each floor to provide fresh air and light to the room. The plaintiff has been getting fresh air and light in the constructed portion at all the first, second and third floors through six windows since the day of construction in 1972 onwards. The building of defendant no. 3 at plot no. 3 was first constructed as per plan sanctioned by the DDA. The said building had two shops at ground floor. The first, second and third floors of the building also had four/five windows for fresh air and light in the constructed portion at each floor. Under the conspiracy and in connivance of defendants no. 1 & 2, the defendants no. 3 to 5 grabbed the area measuring 8'x20' of the pavement space. They Suit No. 151/05 Page 2/12 constructed the covered veranda upon the said piece of land giving the name to that passage as link passage for public use. The fresh air, ventilation and hoarding rights of plaintiff in front of one of the shops at ground floor at plot 4 was blocked by the construction of illegal link passage. The defendants under conspiracy of each others had also constructed a chajja at link passage illegally with malafide intentions by grabbing the open space of pavement. It is further averred that on 14/15 June 2005 the defendants no. 3 to 5 opened a door at the roof of covered veranda/link passage and fixed a grill on the chajja facing towards the pavement without the consent of plaintiff. The fresh air of the three windows on first floor of building of plaintiff at plot no. 4 facing towards the pavement are about to block by the opening of the doors and fixing of grill upon the roof of the link passage as they are very close to the six windows of the building of the plaintiff at first floor. There is no other window or way in the said portion for fresh air and light. It is further averred by the plaintiff that she has challenged the illegal actions of defendants for the construction of covered veranda/link passage by covering the piece of land measuring 8'x20' facing towards the pavement on the ground floor of building at plot no. 3 through a Civil Writ Petition no. 3369 of 1992 titled 'Shanti Devi Gupta & Anr. Vs DDA & Ors.' before the Hon'ble High Court of Delhi. During the proceedings in the Civil Writ Petition, the Ld. Counsel for the respondents had given an undertaking to the court on behalf of the respondents that no obstruction, temporary or otherwise shall be caused in the link veranda in front of the building of the petitioner in plot no. 4 near the building at plot no. 3 of the respondents and the said piece of land measuring 8'x20' allotted to the respondents would be used only to construct a link veranda between plot no. 3 and plot no. 4 in terms of clause (vii) of the terms and conditions of the allocation of commercial lands, for which the respondent was bound to accept and to pay extra price. Vide order dated 01.10.92, Hon'ble High Court has dismissed the petition and the interim orders were vacated. As per the plaintiff in view of the undertaking given before the Hon'ble High Court, the defendants have no right or interest to construct the door opening towards the roof of the link passage or covered veranda and to fix a grill on the chajja of common passage in front of the building at plot no. 3 by which the three windows at first floor of the building at plot no. 4 are causing blockage to fresh air, light Suit No. 151/05 Page 3/12 and disturbance to the privacy of the plaintiff at first floor. The son of the plaintiff also lodged a complaint with the police. It is prayed by the plaintiff that a decree of mandatory injunction be passed directing the defendants to remove the door opening towards the roof of the link passage and grill on the chajja of the said link passage in front of the plot no. 3, Shopping Complex, Centre - II, Vivek Vihar, Delhi. The plaintiff also prayed a decree of permanent injunction restraining the defendants not to raise any construction towards the roof of the link/public passage. Plaintiff also prayed a decree of declaration declaring that the defendants are jointly and severally liable to pay compensation to the plaintiff.
3. Defendants no. 1 & 2 filed written statement and have taken preliminary objections that the suit of the plaintiff is not maintainable. There is no cause of action in filing the present suit. In reply on merits, it is averred that the additional land measuring 8' x 20' was subsequently allotted to the lessee of the plot no. 3, on a proportionate premium of Rs. 94,296/-. The physical possession of the suit property was handed over to the lessee and subsequently the lease deed was executed. Accordingly, the construction of passage measuring 8' x 20' is approved construction whereas the construction of chajja by the lessee is as per architectural plan. It was denied that there was any conspiracy and connivance of the answering defendant. It is submitted that defendant no. 3 has opened a door at the roof of the covered veranda and also fixed grill of about 90 cms instead of a 2 foot old masonary wall parapet. It is denied that fresh air will be blocked by door opening and fixing of grill. Dismissal of the suit is prayed by the defendants no. 1 & 2.
4. Defendant no. 4 also filed written statement and has taken preliminary objections that the suit is bad in law and is not maintainable. Defendant no. 4 is not in occupation or possession of the first floor or with roof of the link passage/covered veranda of plot no. 3 and is not in possession of the link passage/covered veranda. As far as the defendant no. 4 is concerned, he has no power/capacity and is not in a position to effect any construction on the roof of the covered veranda/link passage. The grill and door are also not made by the defendant no. 4 and the said grill and door are in existence prior to filing of the Suit No. 151/05 Page 4/12 present suit. The suit is bad in law as the plaintiff has not approached the court with clean hands. There is no cause of action in filing the present suit as the defendant no. 4 did not open the door at the roof of covered veranda or fixed the grill on the chajja. The replying defendant is not in possession or occupation of the link passage/covered area. The answering defendant never disturbed the air, ventilation and hoarding rights of the plaintiff by the construction of chajja on the link passage by taking further open space of the pavement. It is submitted that the respondent was permitted to make a basement for which they were charged Rs. 1 lac extra by the DDA and the same was held legal and valid by the Hon'ble High Court of Delhi vide order dated 01.10.92. Dismissal of the suit is prayed by the defendant no. 4.
5. Defendant no. 5 also filed written statement and has taken preliminary objections that there is no cause of action in filing the present suit. Defendant no. 5 has occupied the suit property in an agreement with defendant no. 3, the recorded owner and has not constructed any portion at all. All the constructions were already in existence. No new construction has been made by the defendant no. 5. The present suit has been filed to blackmail the defendant no. 5 and to extract money from him. Defendant no. 5 has filed a writ petition no. 3369 in the year 1992 against the DDA and others seeking cancellation of land measuring 8' x 20' to the respondent no. 4. It is also averred that the writ petition was dismissed and at the time when the chajja was constructed at the roof there was railing at the same place as it is existing now. There was also a door for coming to chajja. The Hon'ble High Court has held that the allotment of the land by the DDA is not to be quashed and as such virtually held that the said allotment is legal and cannot be quashed. The present suit is not maintainable as the Hon'ble High Court has already dismissed the writ petition mentioned above. It is also averred that when the DDA has charged the extra amount, the same is to be maintained, cleaned, washed regularly for which the access is required and the only access available to the roof/chajja is from the roof which is objected to now by the plaintiff. The rain and other water gets clogged there and the same is to be maintained properly so that there may be proper drainage out of the same. The coolers and air conditioners on the windows are also to be cleaned. There is Suit No. 151/05 Page 5/12 no other way to come to the roof except from the door on the first floor. The plaintiff has same amount of light and air. There is no blockage or obstruction of the light or air by anything done by the defendant no. 5. The door as well as windows were already in existence. There was a grill at point DC and AD of the site plan marked Z filed by the plaintiff. The plaintiff's sons are using the property no. 4 for commercial purposes. Defendant no. 3 had paid the price of the same and has every right to use the same in any manner he likes. The railing is not touching the building of the plaintiff. The plaintiff has a projection of 2'6"before the chajja of the defendant no. 3 and the defendant no. 5 has no access to the said portion from any side. There are a number of windows on the first floor. There is no blockage of light or air from the said portion. There is a door and two big windows. The railing is also described and the same is only on the chajja and not on the projection. The plaintiff cannot prevent the defendant no. 5 to use the same. The plaintiff has not fulfilled the requirement of Section 478 of DMC Act or Section 53 B of the DDA Act. The suit is also barred u/s 42 of the Specific Relief Act. Defendant no. 5 has only changed the existing grill with new grill without affecting the old portion and similarly new gate was installed as the old gate was in dilapidated condition. It is denied that fresh air and light through the three windows at first floor of the building of the plaintiff at plot no. 4 facing towards the pavement is blocked by the opening of the doors and fixing of grill upon the roof of the link passage. As per the defendant no. 5, the plaintiff cannot deprive the defendants of the rights on their property by making false assertions about the light and air. Dismissal of the suit is prayed by the defendant no. 5.
6. Plaintiff has filed replication to the rejoinder to the written statement filed by the defendants and has controverted the allegations made in the written statement and has reaffirmed the averments made in the plaint. On 16.11.07, the following issues were framed by my Ld. Predecessor: -
1. Whether the plaintiff is entitled to a decree of mandatory injunction, as prayed? OPP
2. Whether the plaintiff is entitled to a decree of permanent injunction, as prayed? OPP
3. Whether the plaintiff is entitled to a decree of declaration, as prayed?Suit No. 151/05 Page 6/12
OPP
4. Whether the suit of the plaintiff is not maintainable in view of Section 53 B of DDA Act, as alleged? OPD 1 & 2.
Additional issues were also framed on 21.05.08 by my Ld. Predecessor:-
5. Whether the plaint does not disclose any cause of action? OPD 1, 2, 4 & 5.
6. Whether the suit is not valued properly for the purpose of court fees and jurisdiction, as alleged? OPD 5
7. Whether the present suit is barred by the principles of resjudicata, as alleged? OPD 5
8. Whether the present suit is barred by the principles of Order 2 Rule 2 CPC, as alleged? OPD 5
9. Relief.
7. In evidence, the son of the plaintiff appeared as PW1 and this witness filed affidavit Ex. PW1/A in evidence on the lines of the plaint. The plaintiff not appeared as witness in this case. Sh. Sanjay Gupta also appeared as PW2 and filed affidavit Ex. PW2/1 in evidence. On the other hand defendant no. 5 appeared as DW1 and Sh. Avatar Singh S/o Sh. Kartar Singh was examined as DW2. Counsel for the defendants no. 1, 2 and 4 made statement that they do not want to examine any other witness.
My issue wise findings are as under. First of all, I am deciding issue no. 5.
ISSUE NO. 5: - "Whether the plaint does not disclose any cause of action? OPD 1, 2, 4 & 5."
8. The burden to prove this issue is on defendants no. 1, 2, 4 & 5. It is the case of the plaintiff that the present plaint does not disclose any cause of action. The plaintiff has filed the present suit for mandatory and permanent injunction and for declaration directing the defendant to remove the door opening Suit No. 151/05 Page 7/12 towards the roof of the link passage and grill on the chajja of the said link passage in front of the plot no. 3, Shopping Complex, Centre - II, Vivek Vihar, Delhi. The plaintiff also prayed a decree of permanent injunction restraining the defendants not to raise any construction towards the roof of the link/public passage. Perusal of the plaint reveals that there is a cause of action and this issue is decided in favour of the plaintiff and against the defendants no. 1, 2, 4 &
5. ISSUES NO. 6:- "Whether the suit is not valued properly for the purpose of court fees and jurisdiction, as alleged? OPD 5"
9. The burden to prove this issue is on the defendant no. 5. It is the case of the defendant no. 5 that the present suit is not valued properly for the purpose of court fees and jurisdiction. The present suit has been filed for mandatory and permanent injunction and for declaration. The plaintiff has valued the suit for the purpose of court fees on the relief of permanent injunction as Rs.130/-, for the relief of mandatory injunction as Rs. 130/- and for the relief of declaration as Rs. 200/-. Thus the total value of the suit for the purpose of court fees and jurisdiction is Rs. 460/-. The court fees on each relief is paid as Rs. 46/- . I am of the view that the plaintiff has properly valued the suit for the purpose of court fees and jurisdiction as the plaintiff has filed the present suit for mandatory and permanent injunction and for declaration. Thus, this issue is decided in favour of the plaintiff and against the defendants.
ISSUE NO.7: - "Whether the present suit is barred by the principles of resjudicata, as alleged? OPD 5"
10. The burden to prove this issue is on the defendant no. 5. It is the case of the defendant no. 5 that the present suit is barred by the principles of res- judicata. It is contended by the counsel for the defendant that the plaintiff has filed a writ petition before the Hon'ble High Court and in that writ petition, plaintiff and her son has challenged the allotment of the passage to the respondent no. 4 by DDA. Petitioners in that petition had sought a writ of certiorari and Suit No. 151/05 Page 8/12 mandamus or any other appropriate writ or direction or order calling for record of plot no. 3, B Block, Local Shopping Centre-II, Jhilmil, Vivek Vihar, Delhi and directing the respondent no. 1, the DDA and defendant no. 2, the Union of India not to allot public passage in front of petitioners plot no. 4 and if already allotted, quash the allotment, directing the respondents and respondent no. 3, the Municipal Corporation of Delhi not to permit respondent no. 4 and 5 to carry out any construction or raise any structure on the said public passage and in the basement beneath the public passage. This petition of the petitioner and her son was dismissed by the Hon'ble High Court. This fact is not denied by the plaintiff. In the present case the plaintiff has prayed that a decree of mandatory injunction be passed directing the defendant to remove the door opening towards the roof of the link passage and grill on the chajja of the said link passage in front of the plot no. 3, Shopping Complex, Centre - II, Vivek Vihar, Delhi. The plaintiff also prayed a decree of permanent injunction restraining the defendants not to raise any construction towards the roof of the link/public passage. Thus, in the present suit plaintiff is claiming direction to the defendant to remove the door opening towards the link passage in front of plot no. 3. This was not the subject matter before the Hon'ble High Court in writ petition no. 3369 of 1992. Thus, this present suit is not barred by the principle of res-judicata. Thus, this issue is decided in favour of the plaintiff and against the defendants.
ISSUE NO. 8: - "Whether the present suit is barred by the principles of Order 2 Rule 2 CPC, as alleged? OPD 5"
11. The burden to prove this issue is on the defendant no. 5. It is the case of the defendant no. 5 that the present suit is barred by the principles of Order 2 Rule 2 CPC as the plaintiff has not incorporated the reliefs prayed in the present suit in the civil writ petition filed before the Hon'ble High Court. The writ petition was filed in the Hon'ble High Court in the year 1994 and the present suit was filed in the year 2005 and in para 5 of the plaint the plaintiff has averred that on 14/15 June 2005, the defendants no. 3 to 5 had opened the door at the roof of the covered veranda and also fixed a grill. Thus as per the plaint the defendants have opened the door and fixed a grill in June 2005 and the plaintiff cannot Suit No. 151/05 Page 9/12 incorporate the present reliefs claimed in the writ petition filed in the year 1994. As per the averments of the plaint, the defendant has opened the door and installed the grill in the year 2005. The present suit is not barred under the provisions of Order 2 Rule 2 CPC. This issue is decided in favour of the plaintiff and against the defendant no. 5.
ISSUE NO. 4: - "Whether the suit of the plaintiff is not maintainable in view of Section 53 B of DDA Act, as alleged? OPD 1 & 2."
12. The burden to prove this issue is on the defendants no. 1 & 2. The defendants no. 1 & 2 had not adduced any evidence to prove this issue. Thus, in absence of evidence, this issue is decided in favour of the plaintiff and against the defendants no. 1 & 2.
ISSUES NO. 1, 2 & 3: - "Whether the plaintiff is entitled to a decree of mandatory injunction, as prayed? OPP Whether the plaintiff is entitled to a decree of permanent injunction, as prayed? OPP Whether the plaintiff is entitled to a decree of declaration, as prayed? OPP"
13. All the issues are interconnected and I am deciding all the issues together. The burden to prove all these issues is on the plaintiff. The son of the plaintiff appeared in witness box as PW1 and this witness filed affidavit in evidence on the lines of the plaint. The PW1 has averred in the affidavit that the illegal/unauthorized construction was made on the public land and also disputed plot no. 3 with malafide intentions with the connivance of certain officers by using fraudulent means. The plaintiff has also challenged the allotment of area measuring 8' x 20' before the Hon'ble High Court and this writ petition of the plaintiff and her son i.e. PW1 was dismissed by the Hon'ble High Court in the year 1994. It is the case of defendant no. 5 that they had paid the additional amount of Rs. 94,296/- for the land measuring 8' x 20' to the DDA and this land was allotted by DDA to the defendant no. 5. Even the defendants no. 1 & 2 have Suit No. 151/05 Page 10/12 mentioned in the written statement that the area measuring 8' x 20' was allotted to lessee and the possession of the plot no. 3 was handed over to the lessee and subsequently the lease was executed at a proportionate premium of Rs. 94,296/- and the construction of the passage is approved and the construction of chajja by the lessee is as per architectural plan. Thus, it cannot be said that the defendants have encroached the public land and have raised construction over it.
14. The plaintiff has not stepped in the witness box to prove the averments in the plaint and PW1 is the son of the plaintiff who is the attorney. Counsel for the defendant has placed reliance on the judgment AIR 2005 SUPREME COURT 439 to the effect that " the power of attorney holder cannot depose in place and instead of principal." Admittedly, plaintiff not appeared in the witness box to prove the averments made in the plaint.
15. The plaintiff has not placed on record any document to prove that the opening of door at the roof of covered veranda/link passage is blocking fresh air and light through three windows at first floor of building at plot no. 4 facing towards the pavement. Plaintiff has not adduced any evidence to show that the opening of door by the defendants on the link passage/covered veranda is causing threat to the privacy of the plaintiff. The plaintiff has not brought any evidence to show that construction of door opening towards the link passage/covered veranda and fixing of grill on chajja of passage is blocking the fresh air and light and causing threat to the privacy of the plaintiff at the first floor of the plot no. 4. Plaintiff should have brought evidence to show that the construction of door and the grill fixed by the defendants are blocking fresh air and light and threatening the privacy of the plaintiff.
16. It is the case of defendant no. 5 that the railing and door were already in existence and the defendant no. 5 had only replaced the railing with new railing and a door. Defendant no. 5 has proved site plan as Ex. PW2/DY and the photographs as Ex. PW2/DX and DW1/5 Ex. PW2/DX shows that there is no blockage of air and light due to the construction of door or chajja constructed on property of defendants. It is also stated by DW5 in the affidavit that there is no Suit No. 151/05 Page 11/12 blockage of fresh air and no entry of the plaintiff is effected and the plaintiff has windows at her premises and there is no blockage of the same. The defendant has also proved the site plan Ex. PW2/DY which shows that there are six windows at plot no. 4. In the cross examination, the PW1 has admitted that he had filed writ petition in the Hon'ble High Court which was dismissed by the Hon'ble High Court. PW2 also admitted in the cross examination that door and grill were already existing as shown in site plan Ex. PW2/DY at Point Y, Y1 to Y2. This witness also admitted that it is correct that I am getting light and air from the window installed at first floor of my property. In the cross examination of DW1, the attorney of the plaintiff has not asked any relevant question to suggest that opening of door and construction of grill is obstructing the light and air on the first floor of plot no. 4. Thus, the attorney of plaintiff has not asked any question relevant to relief claimed in the present suit. The counsel for the defendant has also placed reliance on 1998 VI AD (Delhi) to the effect that defendants neither put their case in cross-examination nor led evidence to prove otherwise. In this background the account as given by the PW1 is not liable to be accepted. Thus, the plaintiff is not able to prove these issues and these issues are decided in favour of the defendants and against the plaintiff.
RELIEF
17. In view of my findings on the above said issue, the suit of the plaintiff is without any merits and the same is hereby dismissed. No order as to cost. Decree sheet be prepared. File be consigned to record room after necessary compliance.
ANNOUNCED IN OPEN COURT (NARESH KUMAR MALHOTRA)
ON 31.03.2010 ADMINISTRATIVE CIVIL JUDGE
KKD COURTS, DELHI
Suit No. 151/05 Page 12/12