Delhi District Court
Shri P. C. Sharma vs Municipal Corporation Of Delhi on 23 January, 2012
IN THE COURT OF CIVIL JUDGE04 (SOUTH), SAKET
COURT COMPLEX, NEW DELHI
Presided by : Ms. Vijeta Singh
Suit No. 48/11
Case ID No. 02406C0014482011
In the matter of:
Shri P. C. Sharma,
S/o Late Sh. Dina Nath
Resident of House No. 86,
B Block, Munirka Village,
New Delhi110067.
(Through its attorney)
Shri Naresh Sharma. ...... Plaintiff
VERSUS
1. Municipal Corporation of Delhi,
Town Hall, Delhi.
Through its Commissioner,
2. Executive Engineer (Bldg.)
Municipal Corporation of Delhi, (South Zone)
Green Park, New Delhi.
3. Station House officer,
Police Station, Vasant Vihar,
Suit No. 48/11
P C Sharma Vs. M.C.D. & Ors. 1/31 pages
New Delhi110057.
4. Diwan Singh
S/o Sh. Bharat Singh,
115, B Block, Mata Wali Gali,
Munirka Village, New Delhi110067.
Also at :
211D, Munirka Village,
New Delhi110067. ........Defendant
Date of Institution :25.01.2001
Date of Reserving of Order :13.01.2012
Date of Pronouncement of Order :23.01.2012
JUDGMENT
1. The present suit has been filed by the plaintiff through his attorney Shri Naresh Sharma against the defendant praying for the following reliefs:
"i) Pass a decree of mandatory injunction directing the defendants to demolish the unauthorised construction already raised by the defendant no.4 at the suit premises bearing no. 115, B Block, Mata Wali Gali, Munirka Village, New Delhi110067, more specifically shown in red color in the site plan, which is in derogation to and in the breach of right of the plaintiff and law of Suit No. 48/11 P C Sharma Vs. M.C.D. & Ors. 2/31 pages the land.
ii) Pass a decree of permanent injunction directing the defendants to stop the unauthorised/illegal construction taking place over the suit property.
iii) To pass any further reliefs which the Hon'ble Court may deem fit and proper in the facts and circumstances of the aforesaid case.
iv) Cost of the suit may also be granted to the plaintiff."
2. It is the case of the plaintiff that he is the owner of house no. 86, B Block, Munirka Village, New Delhi110067 and is residing there with his family since late 1960s. Village Munirka is an urbanised village and before raising any construction of a building, proper sanction from defendant no.1 and 2 has to be taken. Defendant no. 4 is the owner/occupier of house no. 115, BBlock, Mata Wali Gali, Munirka Village, New Delhi110067 (which is hereinafter referred to as the "suit premises"). It is averred that the suit premises is in front of the house of the plaintiff across the gali which is about 6" (six feet) wide. It is further stated that defendant no. 4 started constructing an unauthorised and illegal six storey building in the month of November, 2000 without having obtained the requisite sanction from defendant no. 1 and 2. As per the averments in the plaint, defendant no.4 has already raised a Suit No. 48/11 P C Sharma Vs. M.C.D. & Ors. 3/31 pages structure of four storey and has also extended the roof (chajja) on various floors by four to five feets, though, he had initially promised to construct chajja of two and a half feet only. The plaintiff states that defendant no. 4 has also constructed steps in the gali/street and the door of the suit premises opens outward in the gali thereby narrowing the street even further. It is hence, stated that due to the aforesaid construction by defendant no.4, the plaintiff's easementary right to light and air is being infringed. Thus, the attorney of the plaintiff was constrained to file a complaint dated 17.11.2000 to defendant no. 1 to 3 against the unauthorised and illegal construction. Thereafter, on 27.11.2000, defendant no. 2 issued a notice having no. D/2032/Bldg./SZ/2000 dated 27.11.2000 under Section 344 (2), 344 (3) of Delhi Municipal Corporation Act, 1957 requiring defendant no. 3 to stop the unauthorised construction being carried out in the suit premises but to no avail. It is further averred that at the point of time, the suit premises was built up to one and a half storey, only. However, defendant no.4 and his people worked overnight to raise the rest of the construction at the earliest. Since, despite his previous complaints no action has preferred by defendant no. 1 to 3, the plaintiff yet again was compelled to make a representation dated 18.12.2000 before the Deputy Suit No. 48/11 P C Sharma Vs. M.C.D. & Ors. 4/31 pages Commissioner of defendant no. 1. It is also alleged that defendant no. 3 instead of hearing to the request of the plaintiff to stop unauthorised construction in the suit premises, acted in collusion with defendant no.4 and submitted a false and fabricated report to the Special Executive Magistrate (South West District), New Delhi and a notice under Section 111 Cr.P.C. was issued to the attorney of the plaintiff. It is alleged that in the proceedings before the SDM, plaintiff's attorney has pressurized by defendant no. 3 and 4 to given an undertaking to break the chajja of his own house which is claimed to be one feet wide. The plaintiff is thus, aggrieved that the illegal and unauthorised construction in the suit premises has led to complete darkening in the entire gali and the plaintiff has to light candles even during the day when there is no electricity. Further, due to the construction of the steps in the gali and opening of the door outwards has already narrowed the gali and due to the dampness caused by the super structure unauthorisedly raised by defendant no.4, health of the plaintiff and his family members has been adversely affected.
3. The cause of action is alleged to have occurred on 17.11.2000 when notice has issued to the defendants as regards the illegal construction being raised by defendant no. 4; on 27.11.2000 when defendant no. 2 Suit No. 48/11 P C Sharma Vs. M.C.D. & Ors. 5/31 pages issued a notice/letter to defendant no. 3 seeking help; on various dates when plaintiff requested defendant no. 1 to 3 to stop the illegal and unauthorised construction being raised in the suit premises; on 23.12.2000 when notice under Section 111 Cr.P.C. was issued; on 31.12.2000 when plaintiff's attorney was pressurised to give an undertaking before the SDM; on 8.01.2001 when the plaintiff was called again before the SDM; on 22.1.2001 when the plaintiff was yet again called by the SDM and the cause of action is stated to be continuing as defendant no. 4 has not removed the unauthorised and illegal construction as directed by defendant no. 2.
4. Written statement on behalf of defendants no. 1 and 2 was filed on 10.4.2001. Preliminary objections were taken to the effect that the suit is barred under Section 477/478 of Delhi Municipal Corporation Act, 1957 for want of service of notice upon MCD prior to the institution of the suit; that the plaintiff has no cause of action against defendants no. 1 and 2 on the dates as alleged; that defendants no. 1 and 2 have already proceeded against the unauthorised construction at the suit premises under Section 343 /344 of Delhi Municipal Corporation Act, 1957. It has been averred that the unauthorised construction in the suit premises was in the form of a hall in the ground floor and first floor which was Suit No. 48/11 P C Sharma Vs. M.C.D. & Ors. 6/31 pages booked vide file U.C. File no. 694/B/UC/SZ/2000 dated 26.12.2000 and a show cause notice number 12244 dated 26.12.2000 was served upon defendant no.4 after following due process of law. Thereafter, the matter was processed further and since the construction raised was deemed to be without any sanction or prior permission, demolition notice number 10062 dated 2.2.2001 was issued to defendant no.4. Subsequently, further unauthorised construction in the form of room, toilet, staircase at first and second floor was also found and booked vide file no. 759/B/SZ/UC/2001 dated 16.2.2001 and show cause notice bearing no. 12530 dated 16.2.2001 was also issued and further action was stated to be under contemplation.
5. In reply on merits, it was admitted that the area in question was an urbanised village to which building by laws of MCD were applicable.
6. Replication to the written statement of defendant no. 1 and 2 was filed on 9.10.2001 wherein it was denied that the suit was barred under Section 477/478 of Delhi Municipal Corporation Act, 1957. It was stated that two notices dated 17.11.2000 and 18.12.2000 were sent to the MCD. It was denied that the plaintiff has no cause of action as unauthorised and illegal construction was admitted in the suit premises. The plaintiff reiterated the contentions of the plaint.
Suit No. 48/11
P C Sharma Vs. M.C.D. & Ors. 7/31 pages
7. Written statement by defendant no. 4 was filed on 6.7.2001 wherein preliminary objections were taken that the suit is not maintainable in the present form; that the plaintiff had not come to the Court with clean hands and had suppressed vital facts; that the present suit is an abuse of process of law; that the plaintiff has no locus standi to file the present suit; that the suit has not been properly verified and that the suit has become infructuous as the construction in the suit property was complete long before filing of the present suit.
8. In reply on merits, it was denied by defendant no. 4 that the gali between the plaintiff and defendant no. 4's property ad measured 6 feet. It was averred that the properties are located on the edge /beginning of a street which measures 5 and a half feet at the start (where the boundary of the properties of the parties to the suit begin) and 7 feet at the point where the boundaries end. It was alleged that the plaintiff had himself encroached upon the street /MCD land by one and a half feet and the site plan filed by the plaintiff was incorrect. It was admitted that defendant no. 4 had constructed a four storey structure in his property. It was denied that the plaintiff was a resident of the address aforementioned but only his tenants resided therein. It was denied that the entrance door of the property of defendant no.4 opens outside into the street but it was Suit No. 48/11 P C Sharma Vs. M.C.D. & Ors. 8/31 pages stated that it opened inside his own house. The complaint filed by the attorney of the plaintiff on 17.11.2000 was denied. Defendant no. 4 denied the proceedings before the SDM. It was also denied that defendant no. 4 worked overnight to complete the construction of the suit premises as alleged. Collusion between defendant no. 4 and 3 was also denied. It was denied that due to the construction in the suit premises, plaintiff was suffering from health problems. Defendant no. 4 averred that none of the neighbors had any objection to the construction raised by defendant no. 4.
9. Replication of defendant no. 4 to the written statement was filed on 9.10.2001 wherein preliminary objections were brushed aside as vague and bogus. It was denied that the plaintiff had not approached the Court with clean hands. It was denied that the plaintiff had no locus standi to file the present suit and that the suit had not been properly verified and filed by a proper person. It was denied that the suit had become infructuous and plaintiff stated that the suit premises was still under construction in utter violation of the order dated 9.2.2001 and 10.4.2001. Since despite the order of the Court, defendant no.4 claimed to have raised construction, the plaintiff alleged connivance between defendants no. 3 and 4. It was denied that the plaintiff had encroached upon the Suit No. 48/11 P C Sharma Vs. M.C.D. & Ors. 9/31 pages street/gali by one and a half feet but admitted the description and positioning of the properties. It was denied that the plaintiff did not reside in the address given by him which is opposite the suit premises. It was also denied that the suit premises was situated in the Lal Dora area and therefore, was legal. Plaintiff stated that the contention that no objections were taken by the neighbors is mischievous as the plaintiff is the most affected by the unauthorised construction in the suit premises which had led to the infringement of his easementary rights. Thereafter, the plaintiff once again reiterated the contents of the plaint.
10. No written statement was filed by defendant no.3.
11. Vide order dated 9.2.2001, Ld. Predecessor of this Court ordered MCD to ensure that no unauthorised construction took place in the suit premises. On 4.3.2001 an application under Order XXXIX Rule 2 A CPC was moved by the plaintiff. Thereafter, vide order dated 4.03.2001 similar direction was also given to the defendant no. 3.
12. Vide order dated 4.2.2003, Ld. Predecessor of this Court allowed the application under Order XXXIX Rule 1 and 2 CPC restraining defendant no.4 from carrying out any unauthorised and illegal construction in the suit premises till the final disposal of the suit. Suit No. 48/11
P C Sharma Vs. M.C.D. & Ors. 10/31 pages
13. Vide order dated 04.02. 2012 Ld. Predecessor of this Court framed the following issues:
1. Whether the suit of the plaintiff is barred u/s. 477/478 of the DMC Act? OPP
2. Whether the suit of the plaintiff is without cause of action against the defendant no. 1 and 2 as alleged by the defendant no. 1 and 2? OPD
3. Whether the plaintiff has not come to the Court with clean hands and has suppressed material facts? If so, its effect? OPD
4. Whether the suit has become infructuous as alleged by the defendant no. 4? OPD
5. Whether the suit of the plaintiff has not been properly verified as alleged by the defendant no. 4? OPD
6. Whether the plaintiff is entitled to the relief for permanent injuction as prayed for? OPP
7. Whether the plaintiff is entitled to the relief for mandatory injunction as prayed for? OPP
8. Relief.
14. Thereafter, plaintiff evidence was led and plaintiff examined PW1, Sh.
Naresh Sharma on 18.2.2005. PW1 tendered affidavit Ex.P1 along with Ex.PW1/1 Special Power of Attorney, Ex.PW1/2 Site Plan, Ex.PW1/3 complaint dated 17.11.2000, Mark PW1/4 photocopy of letter issued by defendant no.1 to defendant no.3, Ex.PW1/5 letter dated 18.12.2000 to Suit No. 48/11 P C Sharma Vs. M.C.D. & Ors. 11/31 pages Deputy Commissioner MCD and Ex.PW1/6 (colly.) notices dated 23.12.2000 and 08.01.2001. Right to cross examine was closed vide order dated 20.01.2006 as despite opportunities PW1 was not cross examined by the defendants. He was thereafter, cross examined by counsel for defendant no. 4 on 8.9.2006 subsequent to the order of Ld. Predecessor dated 25.7.2006 allowing an application under Section 151 CPC vide which order dated 20.01.2006 was recalled.
15. On 8.9.2006, vide a separate statement of the plaintiff, plaintiff evidence was closed.
16. Thereafter, defence evidence was led by defendant no.4 who examined himself as DW4, Sh. Om Prakash as DW4A and Sh. Ashok Kumar as DW4B. DW4 tendered his affidavit Ex.DW4/X in his examination in chief on 12.05.2011 along with documents Ex.DW4/1 which is a site plan and Ex.PW4/2 (colly.) which are 8 photographs. He was cross examined by counsel for the plaintiff on 19.11.2011 subsequent to an application under Section 151 CPC having been allowed by this Court vide order dated 20.9.2011. DW4A tendered affidavit Ex.DW4A/X in his examination in chief and DW4B tendered affidavit Ex.PW4B/X on 19.7.2011. Thereafter they were cross examined on 19.11.2011 and 28.11.2011 respectively. Vide a separate statement of the defendant no. Suit No. 48/11
P C Sharma Vs. M.C.D. & Ors. 12/31 pages 4, defence evidence of defendant no.4 was closed on 28.11.2011.
17. No evidence was led by defendants no. 1, 2 and 3 and thus, vide order dated 28.11.2011, defence evidence of defendants no. 1 ,2 and 3 was closed.
18. In lieu of the final arguments, defendant no.4 and the plaintiff chose to file written submissions. No arguments were led by the other defendants despite opportunities.
19. It has been submitted by the plaintiff that he is entitled to the decree as prayed for because defendant no.4 has admitted of having violated the rules and building byelaws and not to have obtained sanction from MCD before raising the construction at the suit premises. Relying upon Mark PW1/4, it has been urged that defendants no.2 and 3 have issued notice under Section 344 (2) and (3), Delhi Municipal Corporation Act, 1957 on 27.11.2000 and demolition order was also passed on 02.01.2001 against the unauthorised construction. Thereafter, the present suit came to be filed on 25.1.2001 and the construction of four storeys was raised by defendant no.4 despite the status quo order of the Court. Subsequently, action was once again reiterated vide file no. 759/B/SZ/UC/2001 dated 16.02.2001 as further unauthorised Suit No. 48/11 P C Sharma Vs. M.C.D. & Ors. 13/31 pages construction was noticed at site and a show cause notice was also issued on 16.02.2001. It is urged on behalf of the plaintiff that despite passing of the demolition order, no action has been taken alleging connivance between the defendants. It has also been submitted that defendant no.4 has failed to prove encroachment by the plaintiff and has in his cross examination admitted that Ex.DW4/1 does not reflect any such encroachment.
20. Defendant no. 1 has submitted that the suit is liable to be dismissed because the plaintiff has failed to discharge his burden of proving the issues framed. The plaintiff failed to prove that sanction plan is required for raising constructtion in village Munirka. It has been urged that plaintiff failed to lead any evidence to the effect that defendant no.4 has constructed chajjas as alleged. Per contra, defendant no. 4 states to have proved encroachment by the plaintiff vide the photographs tendered in evidence. It has also been argued that since the plantiff's house has also been constructed without having obtained sanction from the concerned authorities as admitted by PW1, the plaintiff is not entitled to the equitable relief claimed by him. Reliance has been placed upon Ex.DW4/2 (colly.) to state that the photographs reveal that chajjas in the plaintiff's property is wider than those in the defendant's property. The Suit No. 48/11 P C Sharma Vs. M.C.D. & Ors. 14/31 pages plaintiff also has failed to corroborate the evidence led by way of examining the neighbors.
21. This court has heard the Ld. Counsel for the plaintiff and defendant no.4 and considered the material on record and the issue was findings are as under:
ISSUE NO.1 Whether the suit of the plaintiff is barred u/s. 477/478 of the DMC Act? OPP
22. The onus to prove this issue was upon the plaintiff.
23. Before proceeding to decide the issue, the relevant provision is reproduced as under:
"478. Notice to be given of suits. (1) No suit shall be instituted against the Corporation or against any municipal authority or against any municipal officer or other municipal employee or against any person acting under the order or direction of any municipal authority or any municipal officer or other municipal employee, in respect of any act done, or purporting to have been done, in pursuance of this Act or any rule, regulation or bye law made thereunder until the expiration of two months after notice in writing has been left at the Suit No. 48/11 P C Sharma Vs. M.C.D. & Ors. 15/31 pages municipal office and, in the case of such officer, employee or person, unless notice in writing has also been delivered to him or left at his office or place of residence, and unless such notice states explicitly the cause of action, the nature of the relief sought, the amount of compensation claimed, and the name and place of residence of the intending plaintiff, and unless the plaint contains a statement that such notice has been so left or delivered. (3) Nothing in subsection (1) shall be deemed to apply to a suit in which the only relief claimed is an injunction of which the object would be defeated by the giving of the notice or the postponement of the institution of the suit."
24. Thus, perusal of the said section leads to the conclusion that a notice under the said provision is required in situations where a suit is to be instituted against the corporation in respect of any act done, or purporting to have been done, in pursuance of this Act or any rule, regulation or byelaw made thereunder. In the considered view of this Court, the aforementioned section would not be applicable in such scenarios where the plaintiff is aggrieved by any inaction on the part of the Corporation. Therefore, the issue is decided in favour of the plaintiff and against the defendants.
Suit No. 48/11
P C Sharma Vs. M.C.D. & Ors. 16/31 pages ISSUE NO. 2 Whether the suit of the plaintiff is without cause of action against the defendant no. 1 and 2 as alleged by the defendant no. 1 and 2? OPD
25. The onus to prove this issue is upon the defendants no. 1 and 2. Since their defence evidence was closed vide order dated 28.11.2011, no evidence has been led by the defendants. The defendants have therefore, failed to discharge the onus and the issue is decided against them and in favour of the plaintiff.
ISSUE NO. 3 Whether the plaintiff has not come to the Court with clean hands and has suppressed material facts? If so, its effect? OPD
26. The onus to prove this issue was upon the defendants.
27. No evidence has been led by defendants no. 1 to 3. Def.no.4 has pleaded Suit No. 48/11 P C Sharma Vs. M.C.D. & Ors. 17/31 pages that the plaintiff has not approached the Court with clean hands and suppressed vital facts. As per paragraph no. 4 of the plaint, the properties of the plaintiff and the defendant are located on the edge of a street which measures 5 ½ feet at the beginning (where the boundary of the properties to the suit begin) and 7 feet wide at the point where boundaries end. Thus, defendant no. 4 alleged that the plaintiff had himself encroached upon the public land and is therefore, not entitled to any equitable relief.
28. In support of the contention, DW4 testified before the Court and relied upon Ex.DW4/1 and Ex.DW4/2 (colly.). In his cross examination, DW4 admitted that Ex.DW4/1 did not reflect the encroachment by the plaintiff in the common gali. Even,otherwise Ex.DW4/1 has in the considered view of this Court, not been duly proved as the draftsman who prepared the same was not examined as a witness in the present case.
29. As regards Ex.DW4/2 (colly.), this Court is of the view that the same are not sufficient to prove that the gali admeasured 7 feet and has been encroached by 1 ½ feet by the plaintiff. Ex.DW4/2 (colly.) cannot be relied upon as a proof in itself of the dimensions of the depicted object /objects and also cannot be made properly available to establish Suit No. 48/11 P C Sharma Vs. M.C.D. & Ors. 18/31 pages the relative proportions of such objects. Further, the photographer who took the photographs has not been examined. In the considered view of this Court, Ex.DW4/2 (colly.) remained unproved. Hence, defendant no. 4 has failed to discharge the onus to prove that plaintiff has also encroached upon the public land.
30. The second aspect of suppression of vital facts pertained to the plaintiff not residing in his property and the same having been occupied by his tenants. DW4 reaffirmed the averment in Ex.DW4/X in his examination in chief. In his cross examination, DW4 deposed that the plaintiff occasionally resides in the property. Further, PW1 in his cross examination deposed that the plaintiff along with his family members was residing in the suit property. Hence, once again preponderance of probabilities tilts in favour of the plaintiff as defendant no.4 failed to lead sufficient evidence to show that the plaintiff was not residing in the suit property at all as he in his cross examination admitted to the contrary. The issue is therefore decided in favour of the plaintiff and against the defendant.
ISSUE NO. 4 Whether the suit has become infructuous as alleged by the Suit No. 48/11 P C Sharma Vs. M.C.D. & Ors. 19/31 pages defendant no. 4? OPD
31. The onus to prove this issue was upon the defendants.
32. Defendant no. 4 has pleaded that the construction in the suit property was complete long before the filing of the present suit and hence present suit had become infructuous.
33. However, the present suit is not merely related to the relief of permanent injunction but has also been filed for the relief of mandatory injunction to remove the unauthorised construction in the suit property. Further, no evidence has been led by defendants no. 1 and 2 to the effect that any action was taken by them against the unauthorised and illegal construction detected in the suit property. Therefore, this Court is of the view that the suit has not become infructous. The issue is hence, decided against the defendants and in favour of the plaintiff.
ISSUE No.5 Whether the suit of the plaintiff has not been properly verified as alleged by the defendant no. 4? OPD
34. The onus to prove this issue was upon the defendants.
35. Perusal of the written statements of the defendants shows that the Suit No. 48/11 P C Sharma Vs. M.C.D. & Ors. 20/31 pages preliminary objection was raised by defendant no.4. Defendant no.4 has not led any affirmative evidence to prove the same. Hence, he has failed to discharge the onus. The issue is therefore decided against him and in favour of the plaintiff.
ISSUE No.6 Whether the plaintiff is entitled to the relief for permanent injuction as prayed for? OPP
36. The onus to prove this issue was upon the plaintiff.
37. When the suit was filed, it was averred that defendant no.4 started construction in the suit property in November, 2000 without seeking permission from defendants no.1 and 2 and extended chajjas on various floors by 4 to 5 feet, though, he had initially promised to build a chajja of 2 ½ feet only despite the protest of the plaintiff. The plaintiff also stated that the defendant had started construction of a six storey building. It was also the case of the plaintiff that the defendant had made steps in the common gali and the door to the suit property also opened into that gali thereby narrowing the gali and causing immense harm to the plaintiff and his family members and also infringing their easementary rights. Further, as per the plaintiff on 27.11.2000 when Suit No. 48/11 P C Sharma Vs. M.C.D. & Ors. 21/31 pages notice Ex.PW1/4 was issued, the suit property consisted of 1 ½ floor but thereafter the defendants worked overnight to raise the building as early as possible.
38. When the written statement was filed by defendant no.4 on 26.07.2001, defendant no.4 averred that he had raised the construction before the filing of the suit and that the property consisted of four storeys.
39. PW1 in Ex.P1 stated that defendant no.4 had raised a five storey structure and had extended chajjas beyond 2 ½ feet and had made steps in the gali with the door opening in the gali. He relied upon Ex.PW1/2. However, the draftsman was not examined and PW1 in his cross examination admitted as under:
"It is correct that site plan neither bears my signatures nor of the plaintiff but the same has been prepared on my instructions by draftsman but does not bears my name of the draftsman."
40. In the considered view of this Court, in view of the admission that PW1 is not the author of the document and that the same was prepared by the draftsman whose identity has neither been disclosed nor has he been examined, the same remains unproved and is hence, inadmissible in evidence.
Suit No. 48/11
P C Sharma Vs. M.C.D. & Ors. 22/31 pages
41. Contrary to the plaint, deposition was made by PW1 that the suit property consists of five floors. PW1 also relied upon Ex.PW1/4 which was not proved as per law and is once again not admissible in evidence.
42. Even, otherwise, in support of his contentions plaintiff has only examined the attorney PW1. No independent witness was examined by the plaintiff in support of his contentions. The plaintiff also chose not to examine the officials from MCD to establish unauthorised construction.
43. Be that as it may, defendant no. 4 has admitted to have constructed a four storey building. However, it was contended on his behalf that the property is situated in a Lal Dora area where there is no requirement for obtaining sanction from defendants no. 1 and 2.
44. In the considered view of this Court, the contention of the defendant is not tenable. In view of notification No. RN2/173 dated 24.08.1996 of residents of village abadi are exempted from obtaining sanction plan of building for residential units subject to certain conditions, however, they continue to be within the purview of building bye laws of Municipal Corporation of Delhi. The conditions for exemption are that the building is residential in character, not going beyond two and a half stories and owned by the original resident / descendant. Any other building in rural Suit No. 48/11 P C Sharma Vs. M.C.D. & Ors. 23/31 pages area requires prior approval and sanction of building plan from MCD as per the provisions of Master Plan of Delhi, 2001, Zonal Plan and building byelaws. Reliance is placed upon judgment of Hon'ble High Court of Delhi in "Dr. B.L. Wadhera Vs. Government of NCT & Ors"
dated 23.08.2004. The enunciation of the High Court's order has been reiterated in office orders issued by the Commissioner MCD bearing no.
TP/G/683/04 dated 03.02.2004 and also office order bearing no.
PAIL/2004/88/SEBAK9 dated 20.09.2004 issued by MCD / defendant no. 4.
45. Thus, since the defendant has admitted to have raised a four storey and is not covered by the exceptions aforementioned, the issue is decided in favour of the plaintiff and against the defendant. ISSUE NO. 7
Whether the plaintiff is entitled to the relief for mandatory injunction as prayed for? OPP
46. The onus to prove this issue is upon the plaintiff.
47. Admittedly, the construction is prior to 08.02.2007. In view of Section 3 Suit No. 48/11 P C Sharma Vs. M.C.D. & Ors. 24/31 pages (2) (ii) of The National Capital Territory of Delhi Laws (Special Provisions) Second Act, 2011 dated 23.12.2011, status quo is required to be maintained with respect to construction in village abadi area (including urban villages) and their extensions. Hence, the relief prayed for by the plaintiff cannot be granted. The issue is decided against the plaintiff and in favour of the defendants.
RELIEF
48. In view of the findings on issue no.6, the suit of the plaintiff is decreed for the relief of permanent injunction as prayed by way of prayer clause
(ii) of the plaint.
49. Decree sheet be prepared accordingly.
50. Parties to bear their own cost.
Announced in the open Court (Vijeta Singh)
on 23.01.2012 Civil Judge04 / South District
New Delhi
Suit No. 48/11
P C Sharma Vs. M.C.D. & Ors. 25/31 pages
IN THE COURT OF CIVIL JUDGE04 (SOUTH), SAKET
COURT COMPLEX, NEW DELHI
Presided by : Ms. Vijeta Singh
Suit No. 48/11
Case ID No. 02406C0014482011
In the matter of:
Shri P. C. Sharma,
S/o Late Sh. Dina Nath
Resident of House No. 86,
B Block, Munirka Village,
New Delhi110067.
(Through its attorney)
Shri Naresh Sharma. ...... Applicant
VERSUS
Municipal Corporation of Delhi
Town Hall, Delhi.
Through its Commissioner & Others... .......Respondents
Date of Institution :10.04.2001
Date of Reserving of Order :13.01.2012
Date of Pronouncement of Order :23.01.2012
Suit No. 48/11
P C Sharma Vs. M.C.D. & Ors. 26/31 pages
ORDER
1. Vide this order this Court shall decide an application under Section 11 and 12 of Contempt of Court Act read Order XXXIX Rule 1 and 2 read with section 151 of CPC.
2. Vide this application applicant has sought prosecution and punishment of the contemnors for willfully and deliberately violating the order dated 9.2.2011. It is stated in the application that vide order dated 9.2.2011 Ld. Predecessor of the Court had ordered MCD/respondent to ensure that no unauthorised construction takes place in the suit premises. However, defendant no.4/respondent has continued with the unauthorised construction with impunity and with malafide intention. It is alleged that the MCD/respondent failed to take any action despite the specific orders of the Court.
3. Application has been contested by MCD/respondent by way of a reply wherein it is stated that the application is not maintainable as officer guilty of violation of Court's order has neither been made a Suit No. 48/11 P C Sharma Vs. M.C.D. & Ors. 27/31 pages party nor his name has been disclosed. It is further stated that after the order of the Court dt. 9.2.2011, MCD/respondent has been diligent in discharging its duties and has taken all possible steps within the parameters of law to prevent and stop unauthorised construction carried out by defendant no.4 in violation of the provisions of law. Subsequent to the order of the Court, it is stated that a Show Cause Notice bearing no. 12530 dated 16.02.2001 was also issued to defendant no.4 and after following due process of law demolition notice bearing no. 10929 dt. 23.02.2010 was also issued and served upon defendant no.4. It is further stated that no contempt has been committed by the MCD/respondent.
4. Defendant no. 4/respondent has contested the application by way of a reply wherein it is stated that the application is not maintainable as the construction was complete prior to the filing of the suit and hence, no contempt is made out.
5. Ld. Predecessor of this Court vide order dated 04.02.2003 framed following issues:
1. Whether the defendants/respondents have violated the order dated Suit No. 48/11 P C Sharma Vs. M.C.D. & Ors. 28/31 pages 09.02.2011? OPA
2. Whether any construction was raised by the defendant no. 4 in the premises in question after passing of the order dated 09.02.2001? OPA
3. Relief
6. No separate evidence for the contempt application was led and counsel for the applicant argued on the basis of the evidence led in the main suit.
7. Despite opportunities, no arguments were led by the defendants/respondents.
8. This Court has given its thoughtful consideration to the material on record and the issuewise findings are as under.
Issue no.1 and 2 Whether the defendants/respondents have violated the order dated 09.02.2011? OPA Whether any construction was raised by the defendant no. 4 in the premises in question after passing of the order dated 09.02.2001? OPA
9. The onus to prove this issue was upon the applicant. Suit No. 48/11
P C Sharma Vs. M.C.D. & Ors. 29/31 pages
10. As per the plaint, which was filed in January, 2001 and in specific paragraph no.5 of the same, it is stated that defendant no. 4/respondent has raised a structure of four storey and extended the roof (chajja) on the various floors by 4 to 5 feet though initially he had promised to build a chajja only 2 ½ feet. Further, steps have been made in the street/ gali subsequent to the issuance of notice by MCD/respondent, in the month of November, 2000. PW1 in his examination in chief in paragraph no.5 of Ex.P1 stated that the building consists of five storeys. As per paragraph no.7 of the Ex.P1, only 1 ½ storey had been raised in the month of November, 2000 and defendant no.4/respondent worked overnight to raise a construction upto four floors despite injunction order of the Court. There is no other evidence filed as regards violation of the order of the Court.
11. To hold a person guilty for a quasi Criminal Act, the applicant is required to establish the guilt beyond reasonable doubt. As aforementioned, there is contradiction in the deposition of PW 1 which has not been resolved and in the view of this Court, cannot Suit No. 48/11 P C Sharma Vs. M.C.D. & Ors. 30/31 pages be said to be reliable.
12.Further, the order dated 9.2.2011 was passed by the Ld. Predecessor at the time when defendant no.4/respondent was unserved. Ld. counsel for the applicant during the arguments conceded that no compliance of Order XXXIX Rule 3 CPC was on record. Hence, in the absence of compliance of Order XXXIX Rule 3 CPC, defendant no.4/respondent cannot be held guilty of contempt of Court.
13.For aforesaid reasons, applicant has failed to discharge the onus and the issue is decided against the applicant and in favour of the respondent.
ISSUE NO. 3
RELIEF
9. In view of findings in issue no. 1 and 2, the applicant is not entitled to any relief.
10.Application is therefore dismissed.
Announced in the open Court (Vijeta Singh)
on 23.01.2012 Civil Judge04 / South District
Suit No. 48/11
P C Sharma Vs. M.C.D. & Ors. 31/31 pages