Delhi District Court
Sh. Rajendra Motwani vs Municipal Corporation Of Delhi on 18 May, 2016
THE COURT OF SH. DEEPAK SHERAWAT, JSCC-CUM-ASCJ-
CUM-GUARDIAN JUDGE (WEST): DELHI
Suit No. 2398/08/05
Unique Case I.D. No. 02401C0812102005
1. Sh. Rajendra Motwani
S/o Late Pritamdas,
Through his Attorney,
Ms. Shanti Attorney
2. Ms. Shanti Motwani
D/o Late Pritamdas,
Both R/o A-1/33, Janakpuri,
New Delhi-58. .....Plaintiffs.
Versus
1. Municipal Corporation of Delhi
Through its Commissioner
Towan 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-58.
Second Address :
A-1/28, Janakpuri,
New Delhi-58.
4. Sh. Ram Naryan Aggarwal
R/o A-1/32, Janakpuri,
New Delhi-58.
5. Delhi Development Authority
Through its Vice Chairman
Vikas Sadan, INA, New Delhi.
Suit No. 2398/08 Page no.1/23
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-58. ...... Defendants
Date of filing of the suit : 08.09.2005
Date of reserving order : 15.03.2016
Date of pronouncement : 18.05.2016
JUDGEMENT
1. The present case has been filed by the plaintiffs for permanent and mandatory injunction against the defendants.
2. The case as set out by the plaintiffs is that the plaintiffs are co-owners and in possession of property bearing no. 33, Block-A-1, Janakpuri, New Delhi and the defendant no. 3 and 4 are the owner of adjoining property no. 32, Block-A-1, Janakpuri, New Delhi (hereinafter referred to as "suit property"). The suit property is ad-measuring 800 Sq. Yds., and as per building bye-laws no construction can be raised on the suit property without a sanction plan signed by a registered Architect and a certain amount for open space is required to be left on all sides of such property. The defendant no. 3, 4, 6 and 7 (hereinafter referred to as the "defendants") started raising illegal construction in the suit property and constructed a huge wall on the boundary abutting the property of the plaintiffs thereby obstructing the flow of air and light to Suit No. 2398/08 Page no.2/23 the property of the plaintiffs. The suit property is permitted to have maximum ground coverage of 40% as per the building bye-laws and the defendants are carrying out construction beyond the permissible limit. The plaintiffs made request to the defendant no. 3, 4, 6 and 7 and complaints to defendant no. 1 and 2 but the construction was not stopped.
3. In the written statement, the defendant no. 3 and 4 have stated that the plaintiffs themselves are guilty of carrying out unauthorized construction in their property and the plaintiffs have also planted three or four big trees towards the property of the defendants causing obstruction to the flow of air and light. It is further alleged by the defendant no. 3 and 4 that they have constructed the wall in question to keep the branches of the said trees from their property because the trees are full of insects and mosquitoes. The defendant no. 3 and 4 have denied to have raised any unauthorized construction.
4. The defendant no. 1 and 2 also filed their written statement scatting therein that their officials inspected the suit property and found that the construction was at the finishing stage and action was initiated and demolition order was passed on 31.05.2005 in respect of the unauthorized construction in the suit property.
5. The defendant no. 5 also filed its written statement stating therein that as per report the construction work was being carried out in the suit property on 02.09.2005.
Suit No. 2398/08 Page no.3/236. On the pleadings of the parties, following issues were framed on 07.06.2011.
1. Whether the property no. A-1/32, Janak Puri, New Delhi has been constructed without sanctioned plan and against the building bye-laws?OPP
2. Whether the construction of a wall in the drive way of the suit property has infringed the easementry rights to light and air of the plaintiffs? OPP
3. Whether the defendant no. 3, 4, 6 and 7 were required to leave the side-I as an open space as per building bye-laws and MPD-2021? OPP
4. Whether the minimum set back of 3 meter towards the side-I is mandatory? OPP
5. Whether the unauthorized construction in the suit property is regularized? OPD
6. If so, whether unauthorized construction in the suit property has not been regularized in accordance with rules and procedure applicable thereto and in contravention of MPD-2021? OPP
7. Whether the defendant no. 1 and 2 have colluded with the defendant no. 3, 4, 6 and 7? OPP
8. Whether the plaintiff is entitled to relief of permanent injunction, as prayed for? OPP Suit No. 2398/08 Page no.4/23
9. Whether the plaintiff is entitled to relief for mandatory injunction, as prayed for? OPP
10. Relief.
7. In order to prove his case, the plaintiff examined nine witnesses including himself in plaintiff's evidence. PW-1 is Sh. Sunder Lal, Architecture Assistant, Town Planning Department MCD and he has brought the letter dated 12.12.207. The plaintiff examined himself as PW-2 and apart from reaffirming the contents of the plaint, he relied upon certain documents i.e. lease deed as Ex. PW2/1 but the same was de-exhibited from PW2/2 and was marked as Mark A, site plan Ex. PW2/3, Photograph as Ex. PW2/4, copy of notice dated 10.08.2005 as Ex. PW2/5, postal receipts as Ex. PW2/6, copy of letter/complaint sent to the defendant no. 3 as Ex. PW2/7, copy of letter/complaint sent to Deputy Commission MCD and Director (Vigilance) as Ex. PW2/8, postal receipt dated 12.08.2005 as Ex. PW2/9, AD Card as Ex. PW2/10, copy of letter was also sent to other authorities on 14.08.2005 and its postal receipt as Ex. PW2/11, copy of letter sent to DDA on 29.08.2005 as Ex. PW2/12, acknowledgment receipt of DDA as Ex. PW2/13, power of attorney as Ex. PW2/14, the documents of MCD as Ex. PW2/15, letter bearing no.
D/15/SN/CP/EE(BLDG)HQ/2006 dated 13.06.2006 as Ex. PW2/16, Form D dated 26.05.2006 as Ex. PW2/17, copies of the action taken reports as Ex. PW2/18 to Ex. PW2/23, report of local commissioner and photographs filed as Ex. PW2/24 and Ex. PW2/25, licence of Mr. Dua Architect as Ex. PW2/26, the RTI reply dated 20.12.2007 as Ex. PW2/27, RTI reply dated 19.12.2007 as Ex. PW2/28, RTI reply dated 05.12.2007 as Ex.
Suit No. 2398/08 Page no.5/23PW2/29, architect report dated 22.04.2008 as Ex. PW2/30, RTI reply dated 02.12.2008 as ID No. 363 dated 04.11.2008 as Ex. PW2/31. The documents Ex. PW2/18 and Ex. PW2/23 were de- exhibited. The documents Ex. PW2/24 and Ex. PW2/25 were also deleted. The document Ex. PW2/26 was de-exahibited and marked as Mark B as the same is photocopy. The document Ex. PW2/29 was already exhibited as Ex. PW4/2. Ex. PW2/30 was marked as Mark C. The document i.e. death certificate of my father was exhibited as Ex. PW2/32, which was wrongly mentioned in affidavit of the PW2 as Ex. PW2/29.
8. Sh. D. S, Meena, JE MCD West Zone, was examined as PW-3/Summoned Witness and he has brought on record i.e. reply sent to the plaintiff in ID No. 363 dated 04.11.2008 as Ex. PW3/1. Sh. R. K. Sharma, AE (Building) HQ, Civic Centre was examined as PW4/Summoned Witness and he has brought on record summoned record i.e. copy of noting as Ex. PW4/1 and reply sent to the plaintiff as Ex. PW4/2. Sh. Devendra Singh, Chief Engineer, was examined as PW5/Summoned witness abd Sh. Dharamnder Kumar Meena, JE M-III West Zone, MCD as PW- 6/Summoned Witness. Sh. V. K. Bugga, Ex. Chief Town Planner MCD as PW-7/Summoned Witness and he has brought on record i.e. Form D dated 26.05.2006 as Ex. PW7/1 which bears his signature at point A and notings file as Ex. PW7/2. Sh. Yogesh Lakra, Advocate as PW-8 and he has exhibited his report as Ex. PW8/1, 14 photographs as Ex. PW8/2(colly.), negatives of the said photographs as Ex. PW8/3(colly.) and report as Ex. PW8/4. Sh. Naveen Garg, Executive Engineer (Project) South-DMC as PW-9 and he has exhibited the renewed licence of Sh. Q. L. Dua as Ex. PW9/1.
Suit No. 2398/08 Page no.6/239. In order to prove their case, the defendants examined Sh. Deepak Gahlot as DW1, the defendant no. 3 examined himself as D3W1 and all facts mentioned in the written statement were reiterated and re-asserted in his affidavit. D3W1 has relied upon the documents i.e. original regularization charges receipt dated 20.03.2007 as Ex. D3W1/1, regularization letter dated 30.01.2008 as EX. D3W1/2, certified copy of regularization plan as Ex. D3W1/3, receipt of fee as Ex. D3W1/4 and original conveyance deed as EX.D3W1/5. Sh. Laxmi Narayan, Assistant Director (LA) Residential, DDA as D5W1.
10. I have heard arguments on behalf of both the parties and have perused the entire record.
My issue wise findings are as under :
ISSUE NO. 1:
"Whether the property no. A-1/32, Janakpuri, New Delhi has been constructed without sanctioned plan and against the building bye-laws?OPP"
11. Onus to prove this issue was upon the plaintiff. In the first place, the issue in the present suit never has been regarding the entire property bearing no. A-1/32, Janakpuri, New Delhi and the only controversy is regarding a wall which is alleged to have been raised by the defendants on the boundary of the aforesaid property thereby obstructing the flow of air and light to the property of the plaintiff. So far as the question regarding the alleged wall being unauthorized is Suit No. 2398/08 Page no.7/23 concerned, there was no requirement for the plaintiff to lead any evidence to prove the unauthorized construction inasmuchas the defendants in their written statement have not specifically denied that the wall in question has been raised without any sanction plan. In fact, the aforesaid defendants have led evidence to show that the unauthorized construction erected by them has been subsequently regularized by the defendant no. 1 and 2/MCD. Thus, it has been admitted by the defendants that there was unauthorized construction in the suit property.
12. Otherwise also, there is sufficient evidence to prove that there was unauthorized construction at the disputed site. It has specifically come in the evidence of DW-1 that the show cause notice was issued and served upon the owner of the suit property and demolition orders were passed on 31.05.2005. He has further deposed that demolition actions were taken in respect of the suit property on various dates in the year 2005-
06. The report of Local Commissioner which is Ex. PW8/4 also substantiates the allegation with respect to unauthorized construction. PW-8 Local Commissioner has also placed on record photographs taken by him on 16.04.2007, which also proves that there was unauthorized construction in the suit property. Moreover, D5W1 Assistant Director Residential DDA has deposed that the field staff of the DDA inspected the suit property on 02.09.2005 and reported that the building has been constructed with basement and ground floor, first floor and second floor and above the ground floor portion, the construction work was in progress.
Suit No. 2398/08 Page no.8/2313. The fact of unauthorized construction is further proved by the failure of the defendants to bring on record any sanctioned plan in respect of the construction raised by them. If the defendants had obtained any sanction from the MCD, they must have placed the same on record. Therefore, it is proved that the construction raised by the defendants was unauthorized.
14. Therefore, this issue is decided in favour of the plaintiff and against the defendants.
ISSUE NO. 2 :-
"Whether the construction of a wall in the drive way of the suit property has infringed the easementry rights to light and air of the plaintiff's? OPP"
15. The onus to prove this issue was on the plaintiff. An easement is a right to use another's property. It is a right, which the owner of a particular land enjoys over an adjacent property, which he does not possess. It is the right over a property belonging to someone else and not to the person claiming easement. According to the Indian Easement Act, the inhabitant of a building enjoying the access and use of air and light as a right continuously for over 20 years have the right to them without any condition or restriction. Thus, easement is created through continuous use of a right over the land of other over a long period of time.
16. In the present case, the plaintiff has claimed easementry rights to light and air against the suit property and Suit No. 2398/08 Page no.9/23 according to plaintiff his right of light and air is affected by the raising of unauthorized wall by the defendants in the suit property. The right of light or air is an easement and may be acquired.
(a) by way of - either grant or by covenant, which may be express or implied.
(b) as per the provisions of the India Easement Act, which necessitates an enjoyment without interruption for a period of twenty years to confer the right.
(c) by way of reservation on the sale of the survient tenement. If the vendor of a land desires to reserve any right in the nature of easement and for taking the benefit of his adjacent land which he is not parting with, he must do it by express words in the deed of conveyance, except in the case of easement of necessity.
17. In the present case, the plaintiff has not specified the basis whereon he is claiming to have a right of easement. Mere statement that his right of light and air has been infringed is by no means sufficient to prove the right to easement. The plaintiff has led no evidence whether the construction of the wall diminishes the flow of air and light to his property so as to materially lessen the amount of light or air previously enjoyed by him nor has he brought on record any evidence to help determine the fact as to how much light or air is left with regard to what there was before the construction of the wall. The plaintiff has also not produced any evidence to show whether the diminution (i.e. difference Suit No. 2398/08 Page no.10/23 between the light and air before and the light and air after the obstruction) really makes his property to a sensible degree less fit than it was before, for the purposes of occupation as per the ordinary requirements of mankind. In fact, the easementary right to access of air and access of light are co-existent and owner of the house cannot by prescription claim an entitlement of the flow and uninterrupted passage of light and air, neither is he entitled to right of uninterrupted flow of breeze and light as such, rather he can claim only such amount of air which is sufficient for sanitary purposes. He cannot be allowed to sustain his unjustifiable claim in this regard.
18. Regarding the cases of easementary right of light and air, no interference by way of injunction is warranted if the obstruction of light and air is very slight and where the injury sustained is trifling, except in such rare and exceptional cases. Besides, no damage can be said to be substantial unless it materially diminishes the value of the dominant heritage, or interferes materially with physical comfort of the plaintiff, or prevents him from carrying on his accustomed business in the dominant heritage as beneficially as he had done previous to instituting the suit. The plaintiff in the present case has not proved any of these essential facts and there is no evidence to show that any substantiate damage has been caused to the plaintiff.
19. Further, the plaintiff has founded his easementary right of light and air on the ground that the defendants were required to leave open certain space as set backs in the suit property. It is correct that a property owner is mandatorily Suit No. 2398/08 Page no.11/23 required to keep open spaces around the building which are called set back lines as per the Building Bye-laws. However, the duty of one person to keep set backs cannot be equated with easementary right of the other person. In the matter of "Smt. Margarida Fernandes v. Shri Antonio Jaoguim Fernandes, 1991 (2) GLT 222", it was held that a suit complaining breach of the Municipal Bye-laws was not maintainable and while dealing with one of the Bye-laws in relation to the set back, the learned Judge concurred with the earlier view of the learned single Judge in the matter of "Pandurange Rogunath Shirodkar v. Ladu Rogunath Shirodkar, First Civil Appeal No. 98/97 deklivered on 11.10.1983", that keeping of the set backs is mainly for the benefit of the owner of the building and not for the benefit of the owner of the adjoining land.
20. Thus, the plaintiff cannot claim any easementry right in respect of the set backs which were required to be left by the defendants in the suit property. Independently, as discussed above there is no evidence to prove easementry rights to set backs. Accordingly, the present issue is decided in favour of the defendants and against the plaintiff.
Issue no. 3 and 4 :
"Whether the defendant no. 3, 4, 6 and 7 were required to leave the side-I as an open space as per building bye-laws and MPD-2021? OPP"
"Whether the minimum set back of 3 meter towards the side-I is mandatory? OPP"
21. The onus to prove these issues was upon the Suit No. 2398/08 Page no.12/23 plaintiff. Building set back are the minimum distance between any building or any structure from the boundary line of the plot which has been defined under Section 2.74 Delhi Building Bye- laws 1983, as a line usually parallel to the plot boundaries or centre line of a road and laid down in each case by the Authority or as per recommendations of Master/Zonal Plan beyond which nothing can be constructed towards the plot boundaries, excepting with the permission of the Authority. In the present case, the suit property is a plot measuring 800 sq. yards and as per notification no. S. O. 1591(E) dated 22.09.2006 and MPD 2021, the minimum set back required for a plot of a size above 500 sq. meter and up to 1000 sq. meter are 6 meter in front side, 3 meter in rear side and 3 meter in side-I and side-II each. As per the plaintiff, his property is located at side-I of the suit property because of the garage combination. Ex. PW7/1, which is also exhibited as Ex. PW1/17 is a copy of letter written by Chief Town Planner and as per the said document the combination of the garage block of the suit property is with the property of the plaintiff. Ex. PW2/16, which is a letter Assistant Engineer (B) also shows the location of garage block of the suit property is towards the property of the plaintiff. Thus, the property of the plaintiff being at side-I of the suit property, the defendants were as per law required to leave 3 meters of open space as set back. Even if, the property of the plaintiff were to be situated towards the side-II of the suit property, the defendants would be required to leave open space of the same size as set back. This position is further clarified by the document proved as Ex. PW1/1 as also Ex. PW-2/D3, which is a reply filed by the MCD in response to the RTI application of the plaintiff. According to this document, the set backs as per MPD 2021 have to be followed and Suit No. 2398/08 Page no.13/23 leaving aside requisite space for set backs is a mandatory requirement. PW-7 Sh. V. K. Bugga, X-Chief Town Planner MCD, has stated in his examination in chief that the set backs for the plots between 500 sq. meter to 2000 sq. meter is required to be 6 meter in the front and 3 meters at the back and 3 meters each on side -I and side-II and he has also admitted about the combination of garage of the plaintiff's property being with the suit property as per lay out plan.
22. It is an admitted position that after the implementation of MPD 2021, 75% of the area of the suit property is allowed to be covered. Clause 4.4.3(x) of the MPD lays down that in case the permissible coverage is not achieved with the set backs specified in a particular category for a plot, the set backs of the preceding category may be allowed. It is the contention of the plaintiff that the defendants are entitled to construct over 75% area of the suit property but they are still required to restrict themselves within the limits set in the Master Plan. It is further contention of the plaintiff that if 75% of the covered area cannot be achieved with the help of category 4, the defendants can take advantage of the limits specified in category 3 and they can reduce the set back in the front as well as in side-II but they cannot do so in respect of side-I. However, no evidence to substantiate the submission of the plaintiff has been led to show that while taking resort to the set back limits mentioned in category 3, the defendants cannot cover the area falling on side-I. In fact the plaintiff has not brought on record any evidence to show that the defendants have raised construction by covering the ground beyond the permissible limits. The plaintiff has not led any expert evidence to show as to how Suit No. 2398/08 Page no.14/23 much of the area of the suit property has been covered. But there is no denying that as per law, defendants were required to keep set backs.
23. Accordingly, the issue no. 3 and 4 are decided in favour of the plaintiff and against the defendants.
Issue no. 5 :
"Whether the unauthorized construction in the suit property is regularized? OPD"
24. The onus to prove this issue was on the defendant. As per the defendants, the regularization of the suit property has been permitted by the MCD in terms of MPD 2021 and as per public notice issued by the MCD following directions of the Hon'ble Supreme Court, they have deposited charges of Rs. 7,03320/-. The defendants have proved the public notice as Ex. D3W1/P1. As per the statement of D3W1, the suit property has been regularized as per Master Plan 2021 and the defendants have paid Rs. 7,03320/- towards regularization charges and he has proved the copy of said regularization charges as Ex. D3W1/1. He has also proved that the letter of regularization issued by the MCD as Ex. D3W1/2. As per the statement given by Sh. D. R. Singh, Assistant Engineer on 01.05.2007, the portion of building shown in red colour was regularized on 29.03.2007. He has also proved the copy of the regularized plan of the suit property as Ex. D3W1/3 and the receipt of fees of regularization as Ex. D3W1/4. It is admitted by D3W1 in his cross-examination that the regularization plan Ex. D3W1/4 has been issued for a residential building. In Suit No. 2398/08 Page no.15/23 cross-examination he has also admitted that the photograph Ex.DW1/P3 relates to the suit property. Ex. DW1/P3 and Ex. DW1/P4 are the photographs which show that the suit property is being used for commercial purposes. However, D3W1 has clarified in his cross-examination that the suit property is on a notified commercial road as per MPD 2021 and the same can be used for commercial purposes after paying conversion charges to the MCD. However, user of the suit property was not in issue. So far as unauthorized construction is concerned, the same has been regularized. As per Section 2.74 Delhi Building Bye-laws 1983 also, the set back can also be altered with the permission of the authority i.e. MCD.
25. Accordingly, the issue is decided in favour of the defendants and against the plaintiff.
Issue no. 6 :
"If so, whether unauthorized construction in the suit property has not been regularized in accordance with rules and procedure applicable thereto and in contravention of MPD-2021? OPP"
26. The onus to prove this issue was upon the plaintiff. The plaintiff has assailed the regularization granted to the defendants in respect of the unauthorized construction in the suit property on the ground that the MCD has acted beyond its power while granting the regularization and it was not competent to do so and as such, the regularization itself is void ab-initio. The plaintiff has examined Executive Engineer Sh. Naveen Garg as PW-9, who has proved the copy of license Suit No. 2398/08 Page no.16/23 granted to Sh. Q. L. Dua, Architect, who issued the structural stability certificate in respect of the suit property. PW-9 has categorically stated in his evidence that as per license of Sh. Q. L. Dua, he was not competent to supervise and certify layout plans and works for any building or plot more than 500 sq. mtrs., and that no plan signed by such license holder would be entertained by the MCD for plot beyond 500 sq. mtrs. On the other hand, the defendants have submitted that regularization plan has neither been signed nor submitted by Sh. Q. L. Dua as he was only a Structure Engineer and he was not to sign the regularization plan but only to give a structure stability certificate which he was competent to give for all building irrespective of plot size as per his license. However, the defendants have not cross-examined PW-9 on this point and as such, the statement of PW-9 in respect of the incompetency of the Architect Mr. Q. L. Dua must be accepted.
27. In Surender Roade Vs. Madan Mohan Rode & Ors. RFA No. 765/2006, it was observed that noncross-examination of a witness on a particular aspect tantamount to the fact that the cross-examining party is accepting such part of deposition. Reference in this regard can be made to Laxmibai (Dead) through LR's vs. Bhagwant Buva (Dead) through LRs (2013) 4 SCC 97, Rajinder Pershad (Dead) by LRs vs. Darshana Devi (2001) 7 SCC 69 and judgment dated 19.09.2013, 2013 in RFA No. 411/2000 titled Chanchal Dhingra vs. Raj Gopal Mehra. Consequently, mere submission of the defendants cannot take place of proof to discard the testimony of PW-9 to the effect that Sh. Q. L. Dua, was not competent as an Architect to issue the certificate, especially when no question in this respect has been put to PW-9.
Suit No. 2398/08 Page no.17/23
28. As per appendix Q, Delhi Building Bye-laws, any deviation from the maximum or minimum prescribed limits regarding set back and open spaces are non-compoundable items. However, under certain circumstances, even the deviation in respect of the set backs can be compounded which is clear from MCD Office Order No. 81EE(B) HQ/92 dated 08.12.1992.
29. In any event, apart from the fact that Architect Sh. Q. L. Dua, was not competent there is no other evidence to suggest that the regularization granted by the MCD to the defendants was not according to the procedure. Therefore, it cannot be said on the basis of evidence produced by the plaintiff that the unauthorized construction in the suit property has not been regularized in accordance with rules and procedure. Whereas, the defendants as discussed under issue no. 5 hereinabove have brought on record sufficient evidence to prove that the procedure for regularization was properly followed.
30. Accordingly, this issue is decided against the plaintiff and in favour of the defendants.
Issue no. 7 :
"Whether the defendant no. 1 and 2 have colluded with the defendant no. 3, 4, 6 and 7? OPP"
31. The onus to prove this issue was on the plaintiff.
Suit No. 2398/08 Page no.18/23 However, apart from the statement of the plaintiff in his evidence, there is no other evidence to substantiate the claim of the plaintiff that unauthorized construction was carried out by the defendants in the suit property in connivance with the defendant no. 1 and 2.
32. Accordingly, this issue is decided in favour of the defendants and against the plaintiff.
Issue no. 8 and 9 :
"Whether the plaintiff is entitled to relief of permanent injunction, as prayed for? OPP"
"Whether the plaintiff is entitled to relief for mandatory injunction, as prayed for? OPP"
33. The onus to prove these issues was upon the plaintiff. Both the issues being interconnected are being decided together. In order to get a relief of injunction, whether mandatory or permanent, the plaintiff is required to show that certain rights vested in him have been infringed by the acts of the defendants. In the present case as discussed above, the unauthorized construction has already been regularized by defendant no. 1 and 2/MCD after following the proper procedure and as a consequence, the acts of the defendant in constructing the wall in question does not remain unauthorized construction any longer. As a corollary, no right of the plaintiff can be said to have been infringed. Where there is no violation, there cannot be any remedy.
34. However, the plaintiff has made a strong Suit No. 2398/08 Page no.19/23 submission that the defendant no. 1 and 2 have wrongly acceded sanction to the plaintiff by regularizing the unauthorized construction. He has contended that the sanction itself is void ab-nitio because the same was granted in access of the powers vested in the defendants and is in contravention of the provision of MCD laws and MPD 2021. It has been contended by the plaintiff that the unauthorized construction raised by the plaintiff was non-compoundable in nature and the defendants have no power to compound the same after receiving the penalty and regularize such construction. In this regard, the plaintiff has relied upon the judgments "K. Ramdas Shenoy vs. Chief Officer, Town Municipal Council, (1974) 2 SCC 506, Bangalore Medical Trust vs B. S. Mudappa, (1991) 4 SC 54, Samuel Berman vs Andrew Parker, (1954) 99 Law Ed. 27 :
348 US 26, Village of Balle Terre Vs Bruce Borass, 39 L Ed. 2D 797 : 416 US 1, Royal Paradise Hotel (P) Ltd. Vs State of Haryana, (2006) 7 SCC 597, Dipak Kumar Mukherjee vs Kolkata Municipal Corporation and Ors. (2013) 5 SCC 336".
35. In the present case, it is pertinent to note that a number of issues have been framed beyond the pleadings of the parties and both the plaintiff and the defendants without taking any objection in this respect have produced evidence to prove the issues onus of which lied upon them. The perusal of record shows that no pleadings were set out by either of the parties with regard to issue no. 4 to issue no. 6 relating to the requirement of minimum set back, regularization of the unauthorized construction in the suit property and the said regularization not being in accordance with the laid down procedure. However, once the parties have taken no exception to the issues being framed beyond their pleadings Suit No. 2398/08 Page no.20/23 and they have deliberately led evidence, the lack of pleadings will not affect the case because it is clear that in spite of deficiency in the pleadings parties knew the case and they proceeded to trial on those issues by producing evidence.
36. The plea of the plaintiff that regularization bestowed upon the suit property was illegal, has not been substantiated by the evidence. Besides, in the facts and circumstances of the case, the plea is merely an academic issue since the plaintiff has not sought any declaration from the Court that the regularization of the suit property was illegal and ultra vires. In the absence of any relief prayed for by the plaintiff on this count, the court is not competent to declare the regularization as illegal and unfair.
37. The Supreme Court in its decision in "Trojan & Co. Ltd vs Rm. N. N. Nagappa Chettiar" 953 AIR 235, has held that "it is well settled that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found. Without an amendment of the plaint, the Court was not entitled to grant the relief not asked for and no prayer was ever made to amend the plaint so as to incorporate in it an alternative case."
38. In the present case, it has been proved that the MCD has already regularized the unauthorized construction of the suit property undertaken by the defendants and the plaintiff in these circumstances should have got the plaint amended so as to enable him to challenge the regularization of suit property by MCD. However, the plaintiff has not amended the plaint and prayed for any additional suitable relief. As a Suit No. 2398/08 Page no.21/23 consequence that the regularization stands its ground and no cause of action survives in favour of the plaintiff for grant of any kind of an injunction. In other words, the suit of the plaintiff became infructuous for lack of appropriate relief sought by the plaintiff. The Supreme Court in "Shipping Corporation Of India vs Machado Brothers & Ors., decided on 25.03.2004" has held that if the suit in fact has become infructuous consequences of dismissal of such suit cannot cause any prejudice to the plaintiff and as a matter of fact, the consequence should be to the contrary, that is, such continuance of infructuous suit would cause prejudice to the defendant.
39. All the cases relied upon by the plaintiff in support of his case as mentioned above are not applicable in the facts and circumstances of the case. Firstly, all of the said decisions have been delivered under the writ jurisdiction. Secondly, in none of the aforesaid cases, the issue of unauthorized construction being wrongly regularized by the Municipal Authority was involved. In all these decisions the emphasize has been laid upon the fact that the illegal and unauthorized construction of buildings and others structure are harmful.
40. Thus, no relief to the form of injunction can be granted to the plaintiff since no cause of action survived after the regularization of unauthorized construction in the suit property. Accordingly, the issue no. 8 and 9 are decided in favour of the defendants and against the plaintiff.
RELIEF :
Suit No. 2398/08 Page no.22/23
41. In view of my findings on the issues and aforesaid discussion, the suit of the plaintiff is dismissed and the plaintiff is not entitled for any relief as prayed by him.
42. Decree sheet be prepared accordingly.
43. File be consigned to Record Room.
Announced in the open Court today the 18th May, 2016 (DEEPAK SHERAWAT) JSCC-cum-ASCJ-cum Guardian Judge (West), Delhi 18.05.2016 Suit No. 2398/08 Page no.23/23