Delhi District Court
Sh. Ram Lal vs Sh. Lal Singh And Another on 22 February, 2010
In the court of Ashwani Sarpal, Additional District Judge-05
West District, Tis Hazari Court, Delhi.
Sh. Ram Lal
-----------Appellant
vs.
Sh. Lal Singh and another
-------Respondents
(RCA no. 4/10)
Date of institution----27-1-2010
Date of decision-------22-2-2010
(Appeal against the judgment and decree dated 12-12-2009
passed by ld. Addl. Senior Civil Judge, West District)
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Judgment:-
Ld. Addl. Senior Civil Judge Sh. Vinay Singhal vide his order dated 12-12-2009 passed in civil suit for permanent and mandatory injunction bearing no. 250/09 instituted by respondent no. 1 (herein after referred to as plaintiff) passed a decree of permanent injunction restraining appellant (herein after referred to defendant no. 2) from raising any unauthorized construction qua the suit property bearing no. 81, Village Mohamadpur, R.K. Puram, Delhi and also directed the defendants including MCD (herein after referred to as defendant no. 1) to demolish the unauthorized construction existing on the ground and first floor of the suit property as well as to demolish the Chajja. Defendant no. 2 has come to this court in appeal upon which I have heard counsel for plaintiff and both defendants and gone through the Trial Court record as well as written submissions filed on behalf of the defendant no. 1.
There is no dispute of the fact that house of the plaintiff is situated at a dead end of the street and house of the defendant no.2 is just adjacent or atleast near to it. The location and position of houses of parties as shown in the site plan is virtually not disputed. Mere fact that there is gap of nine numbers of properties in between the houses of plaintiff and defendant no. 2 so those cannot be held as adjacent or near to each other is not acceptable as the court 2 has to see the location and position and not the serial numbers of properties. Plaintiff in his suit alleged that defendant no. 2 had raised unauthorized construction on the ground floor in his property and also constructed a Chajja over the street which is 3 ft. wide due to which his light and air has been blocked. Plaintiff also alleged that the defendant no. 2 had started raising unauthorized construction over the first floor of his property. He prayed for a decree of permanent injunction for restraining the defendant no. 2 for raising unauthorized construction without sanctioned plan and also sought directions for defendants from demolishing the Chajja as shown at point A-B in the site plan.
Defendant no. 1 MCD in its written statement found the unauthorized construction and Chajja being raised by the defendant no. 2 on ground and first floor and booked the same. After completing the necessary formalities defendant no. 1 passed demolition order of the same. Defendant no.
2 however in his written statement denied raising of any new construction or Chajja and stated that it was 30 years old and he was just repairing the same. After the trial, ld. Trial Court decreed the suit and that order is assailed in the present appeal by defendant no. 2. Plaintiff neither filed his own appeal nor filed any cross objections.
Plaintiff in his evidence admitted that suit property is situated within Lal Dora of the village. Counsel for defendant no. 2 while relying upon the case law MCD vs. Dalmia Dairy Industries Ltd. 32 (1987) DLT 390 argued that building bye laws are not applicable upon the constructions being raised in Lal Dora area so defendant was not required to obtain any prior permission or sanctioned plan from MCD before raising any construction. Admittedly defendant no. 2 had not obtained any sanctioned site plan from defendant no. 1 ever. This argument raised is not acceptable if the subsequent judgment given by Delhi High Court in Dr. B.L. Wadhera vs. Govt. of NCT of Delhi 113 (2004) DLT 263 is taken into consideration. The village 'Mohamadpur' where suit property is situated was declared urbanized vide notification no. F-9(2) 66-Law Corp. Delhi dated 28-5-1966. This notification has been reproduced in this above judgment of Dr. B.L. Wadhera's case. The building byelaws of MCD are not applicable to those village only which were exempted specifically by 1963 notification. The village 'Mohammadpur' is not exempted in the notification of year 1963 so the decision given in Dalmia Dairy's case is not of any help to the defendant no. 2. Hence in view of the law laid down by Delhi High Court in Dr. B.L. Wadhera's case, the defendant no. 2 3 was required to obtain sanctioned plan before raising any construction and in absence of any sanctioned site plan, raising of construction on ground and first floor has to be treated as unauthorized and illegal.
Defendant no. 2 has also taken a plea that construction was 30 years old and he was just repairing the same. He has not brought any document on record to show that construction was in existence for the last 30 years and was not raised in the year 2003 as alleged. No specific detail is given by defendant no. 2 in his evidence what particular kind of repairs it required. Even if it is presumed that it was raised 30 years back then also when the village had become urbanized in the year 1966 then thereafter no construction could be raised without sanctioned site plan. If the period of 30 years is counted backward from the date of filing of suit then also it was raised much after year 1966 and thus has to be treated as illegal in absence of any sanctioned site plan. Defendant no. 1 had booked the construction and passed order for its demolition in the year 2003 itself after the institution of the suit. Defendant no. 2 came to know about this action of defendant no. 1 in the year 2003 itself from its written statement but till date he has not challenged the order of booking or demolition in any court or Tribunal which leads to the inference that he is admitting that he had raised illegal construction.
Counsel for defendant no. 2 referred to various provisions of Delhi Laws (Special Provisions) Act and argued that even unauthorized construction cannot be demolished so the decree is liable to be set aside. After going through the provisions of this Act, I am of the view that unauthorized construction has not been legalized under it so far but only the process of demolition has been suspended for certain period. None of the provisions of this Act says that any decree or order passed by competent court for directing demolition of unauthorized constructions shall be null and void but it only suspends its enforcement for a particular period. The illegal construction has been protected for a specific period under this Act but has not been legalized or regularized so far. Accordingly the decree passed by ld. Trial Court cannot be set aside on the ground that such directions violates the provisions of Delhi Special Laws Act. Maximum the execution of decree may be kept in abeyance under this Act for certain period if the construction raised by defendant no. 2 is found covered under the provisions of this Act but there is no ground to set aside the decree itself.
During evidence of plaintiff especially photographs placed on record by him, it is clearly visible that new constructions have been raised. Those 4 photographs were not disputed by the defendant no. 2 at all. Otherwise also defendant no. 1 also found new unauthorized construction being raised and ordered for its demolition. Defendant no. 2 did not challenged that order of demolition till date before any other authority or court which further point out that he has virtually admitted raising of such illegal construction. He even had not opted to cross examine the witness of defendant no. 1. It cannot be held that averments made by the plaintiff were vague or unspecific. It could not be expected from him to go inside the house of the defendant no. 2 (when there was also previous enmity between them and criminal case was pending) and took photographs and gave details what was the extent of construction raised or which particular portion was required to be demolished. Maximum plaintiff could tell from outside of the suit property the extent and detail of construction which he had done and that in my view was sufficient to proceed further with the case. The suit of the plaintiff could not have been dismissed on account of non giving of specific detail of each and every new construction being raised by the defendant no. 2. Similarly the fact that construction existing in the house of plaintiff is also not legal and authorized does not give liberty to the defendant no. 2 to raise his construction without obtaining sanctioned plan of MCD.
Plaintiff being immediate neighbourer of the defendant no. 2 was having locus standi to file the suit and to challenge the illegal construction being raised. Plaintiff otherwise also in the capacity of citizen of the country had right to ensure that no one act against the law of land. Act of defendant no. 2 in making Chajja over the public street measuring only 3 feet cannot be held as justified as no one can be permitted to encroach upon the govt. street. The covering of street with Chajja naturally causes obstruction in free flow of light and air and in this regard raising of grievances by the plaintiff can be said as valid and proper especially when his house was situated at the dead end of the street. Mere fact that there was some previous enmity between plaintiff and defendant no. 2 and criminal complaints were also lodged itself was not a ground to dismiss the suit. The findings given by ld. Trial Court in this regard cannot be reversed or set aside.
However there is force in the submissions of counsel for defendant no. 2 that directions of ld. Trial Court to defendants to demolish unauthorized construction of ground and first floor could not have been passed as plaintiff in his plaint had sought relief of mandatory injunction qua the demolition of Chajja only. He had not claimed any decree for mandatory injunction in respect 5 of ground or first floor construction nor at any time got his plaint amended to include relief in this respect also. Ld. Trial Court was not competent to grant the relief to the plaintiff which was neither claimed nor prayed for in the plaint. Accordingly the decree of mandatory injunction for demolition of ground and first floor of suit property is liable to be set aside but is maintained so far the demolition of Chajja is concerned. This order however shall not cause prejudice to the rights of defendant no. 1 MCD to carry out its demolition in pursuance of booking and demolition order passed in year 2003 as stated in its written statement. Defendant no. 1 is also at liberty to take action against the property of plaintiff, if it also is unauthorized and illegal.
In view of the above discussions, appeal is partly allowed. The decree passed by ld. Trial Court for permanently restraining defendant no. 2 from raising unauthorized construction is upheld but decree of mandatory injunction is partly modified in view of above terms. Parties are ordered to bear their own costs. Decree be prepared and Trial Court record be returned with copy of this order. Appeal file be consigned to record room.
(Ashwani Sarpal)
Dt. 22-2-2010 Additional District Judge