Delhi District Court
Ms. Ruby Sen vs Sh. Gurdial Swarn Singh on 5 July, 2011
Ruby Sen v. Gurdial Swarn Singh v. Ors.
IN THE COURT OF SH. SANJAY SHARMA, JSCCCUMASCJ
CUMGUARDIAN JUDGE (WEST): DELHI
Suit No. 231/09
Unique Case ID No. 02401C0072641999
Ms. Ruby Sen
D/o Late Sh. J. N. Sen
R/o Flat No. 274, First Floor,
Block No.C4/C, Pocket No.14,
Janakpuri, New Delhi. ......Plaintiff
Versus
1. Sh. Gurdial Swarn Singh
S/o Late Sh. Nand Lal Singh
R/o Flat no.273, Ground Floor,
Block No.C4/C, Pocket No.14,
Janakpuri, New Delhi.
2. The Municipal Corporation of Delhi,
Through its Commissioner
Town Hall, Chandni Chowk,
Delhi110006. .....Defendants
Date of filing of the suit : 08.07.1996
Date of reserving order : 24.05.2011
Date of pronouncement : 05.07.2011
J U D G M E N T
1. In the suit, the plaintiff is seeking interalia, a direction to the defendant no.1 to demolish the room constructed in the open courtyard of Flat No.273, Ground Floor, Block No.C4/C, Pocket No.14, Janakpuri, New Delhi ('the suit property') and the construction carried out in rear courtyard of the suit property and otherwise, the defendant no.2 be directed to take appropriate Suit No. 231/09 Page No. 1/14 Ruby Sen v. Gurdial Swarn Singh v. Ors.
action under Section 343/345A of the Delhi Municipal Corporation Act, 1957 (In short 'the DMC Act'), and an injunction restraining the defendant no. 1 from raising construction on the roof of the room constructed in the open courtyard in the suit property or further, from constructing stairs, leading to and using the said roof.
2. Briefly stated, the plaintiff was allotted the Flat no.274, First Floor, Block No.C4/C, Pocket No.14, Janakpuri, New Delhi by the Delhi Development Authority (DDA) in the year 1973 and since then, the plaintiff is residing in the said flat. The Flat no.273, Ground Floor, Block No.C4/C, Pocket No.14, Janakpuri, New Delhi (the suit property herein) was allotted to the defendant no.1. The defendant no.1 is in occupation of the suit property. The flats in question are two storeyed flats and independent dwelling units. Since the death of the plaintiff's mother, the defendant no.1 had been pressurizing and threatening the plaintiff to sell her flat so that he would become owner of the entire property.
3. According to the plaintiff, the defendant no.1 had raised unauthorized construction by covering the rear court yard of the suit property. At that time, the plaintiff had not filed any complaint as her rights were not seriously affected. It is stated that in the month of June, 1996; the defendant no.1 covered the entire front courtyard by laying roof over it at the level of the balcony of the plaintiff in her absence. It is stated that open court yards are not meant for raising any construction and it can only be used as an open space. The plaintiff objected to the said construction but the Suit No. 231/09 Page No. 2/14 Ruby Sen v. Gurdial Swarn Singh v. Ors.
defendant no.1 threatened to construct a room on the roof in front of the plaintiff's balcony. It is stated that the plaintiff is residing alone in her flat and the said construction in the front courtyard has affected her safety and privacy and easementary rights of light and air. It is stated that after demolition of the construction raised in the front portion of the suit property, the defendant no.1 has started using the roof of the back side portion which is affecting privacy, safety and security of the plaintiff.
4. The case of the plaintiff is that the defendant no.1 has raised unauthorized construction in the open courtyard of suit property in breach of the terms of the allotment and lease granted by the DDA. On 03.07.1996, the plaintiff had requested the defendant no.1 to demolish the roof constructed in the open court yard but he had threatened to construct a room thereon. The defendant no.1 was intending to construct stairs for reaching the roof of the room constructed in the open courtyard. The plaintiff had lodged a complaint dated 03.07.1996 to the police and other authorities. Feeling aggrieved by the action of the defendant no. 1 and inaction of the defendant no. 2, the plaintiff filed this suit for permanent and mandatory injunction.
5. In the written statement, the defendant no. 1 contended that the plaintiff has concealed material facts from the Court. He contended that the plaintiff has no locus standi to file the suit as free flow of light and air, and her easementary rights are not affected in any manner. He contended that the plaintiff and the defendant no.1 have equal rights over the passage, staircase and terrace on the roof of the flat no.274, Block C4C, Pocket No.14, Suit No. 231/09 Page No. 3/14 Ruby Sen v. Gurdial Swarn Singh v. Ors.
Janakpuri, New Delhi. It is stated that the defendant no.1 had never lived in the suit property though he was in the possession thereof. It is stated that the plaintiff installed a steel door at the passage of the common entrance depriving the defendant no.1 to access the terrace. The plaintiff has kept a huge steel box in front of the main door of the defendant no.1 and a high powered motor pump in the front portion of his compound. It is stated that the defendant no.1 had covered the open space in the suit property with the consent of the plaintiff and J.E. of the defendant no.2.
6. According to the defendant no.1, the plaintiff had not raised any objection to the construction till the coverage of the open court yard and thereafter, she demanded Rs.20,000/ from him. The plaintiff is freely using the roof of the covered courtyard. The plaintiff has unauthorizedly covered the open space and stair case in her flat which has resulted into accumulation of the drain water in the suit property. The defendant no.1 denied the allegations made by the plaintiff. He has denied that the easementary rights of light and air of the plaintiff affected in any manner. It is stated that the defendant no.1 has acted in terms of Notification no. F. 2(83)/91Coord./H/Pt. dated 13.12.1996. It is stated that the matter regarding relaxations to the additions and alterations in the DDA Flats is pending before the Review Committee of Technical Experts under the Chairmanship of Commissioner (Planning), DDA. It is stated that there is no unauthorized construction on the back side court yard of the suit property. It is stated that there is no cause of action in favour of the plaintiff and against the defendant no.1. He prayed for dismissal of the suit. Suit No. 231/09 Page No. 4/14 Ruby Sen v. Gurdial Swarn Singh v. Ors.
7. In the replication, the plaintiff controverted the contentions raised in the written statement of the defendant no.1 and re affirmed the averments made in the plaint.
8. On the pleadings of the parties, the following issues were framed on 13.05.2002.
1. Whether the plaintiff is entitled to the relief of permanent injunction, as claimed? OPP
2. Whether the plaintiff is entitled to the relief of mandatory injunction, as claimed? OPP
3. Relief.
9. In the evidence, the plaintiff stepped into the witness box as PW1 and examined her nephew Shantanu as PW2 whereas the defendant no. 1 (DW1) appeared as DW1 in support of their respective case.
10. Ex.PW1/1 is the photocopy of the allotment letter dated 29.11.1972 issued by the DDA in respect of the flat no.14/274, First Floor, Block C4C, Pocket No.14, Pankha Raod, Janakpuri in favour of the plaintiff. There is no Site Plan Ex.PW1/2 on the judicial record. (The plaintiff has admitted in her cross examination that she did not get site plan prepared). Ex.PW1/3 is the complaint dated 03.07.1996 made to SHO Janakpuri, New Delhi. Mark A is the copy of Office Order no.F2(83)/94/Coord. (H)/Pt. dated 13.12.1996. Ex.DW1/3 is the Standard Design for M.I.G. Flats approved by the DDA.
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11. I have heard arguments of Sh. O. P. Verma, Adv. for the plaintiff and Sh. Ritesh Ratnam, Advocate for the defendant no.1. I have perused written arguments filed by the plaintiff.
12. On careful consideration of the evidence on record, issue wise findings are as under:
ISSUE NO.1:
13. Ld. Counsel for the plaintiff argued that the defendant no.1 had raised unauthorised construction in the front and rear courtyard of the suit property without permission and/or sanction from the defendant no.2/MCD. He argued that the defendant no.1 had threatened to construct one room over the roof of the court yard and stairs for reaching to the said roof.
14. He argued that the plaintiff had made a complaint Ex.PW1/3 to the police and authorities. He argued that the privacy, safety and security of the plaintiff would be seriously affected, in the event the defendant no.1 succeeds in his illegal acts. He argued that the plaintiff is entitled to relief of permanent injunction, as prayed.
15. Ld. Counsel for the defendant no.1 argued that originally, the plaintiff had filed the suit for permanent and mandatory injunction in respect of the coverage of the front courtyard. He argued that admittedly, the construction in the front court yard was demolished during the pendency of the suit and thereafter, the plaintiff had amended the suit in order to incorporate relief of Suit No. 231/09 Page No. 6/14 Ruby Sen v. Gurdial Swarn Singh v. Ors.
mandatory injunction against the coverage of the rear court yard. He argued that the relief of permanent injunction in respect of the construction of the room over the roof of the covered front court yard and stairs leading to the said roof had come to an end. He argued that the issue no.1 should be decided in favour of the defendant no.1 and against the plaintiff.
16. Onus to prove the issue no.1 was upon the plaintiff. Originally, the case of the plaintiff was that the defendant no.1 had covered the front courtyard in her absence in the month of June, 1996 and further, threatened to construct a room on the roof of in front of the balcony of the plaintiff which would affect her security, safety and privacy as she is living alone in her flat besides obstructing free flow of light and air to her flat. Admittedly, the construction in the front court yard of the suit property was completely demolished during the pendency of the suit. Therefore, the relief of permanent injunction has become infructous.
17. It is not the case of the plaintiff that the defendant no.1 had ever attempted or threatened to raise construction over the covered rear court yard of the suit property. In view of this, the issue no.1 is answered accordingly.
ISSUE NO.2:
18. Ld. Counsel for the plaintiff argued that the defendant no. 1 has illegally and without seeking permission and/or sanction from the defendant no.2/MCD had raised unauthorized construction in Suit No. 231/09 Page No. 7/14 Ruby Sen v. Gurdial Swarn Singh v. Ors.
the front and rear courtyard of the suit property. He argued that the defendant no. 1 had also not obtained no objection from the plaintiff before raising construction in the front and rear courtyard of the suit property. He argued that unauthorized construction raised by the defendant no. 1 in the front courtyard was demolished by the MCD on 12.11.1996 during the pendency of the present suit and therefore, the plaintiff is seeking relief in respect of unauthorized construction raised by the defendant no.1 in the rear courtyard of the suit property.
19. Ld. Counsel for the plaintiff further argued that the plaintiff is a lawful allottee and occupant of the first floor over the suit property. He argued that the defendant has admitted in his written statement that he had raised construction in the rear courtyard. He argued that that defendant has not proved that he had obtain the permission of the defendant no.2/ MCD and consent of the plaintiff before raising the construction. He argued that the defendant no. 1 has not proved that he had raised the construction with the permission of the MCD or otherwise, in terms of the policy formulated by the DDA. He argued that the photographs Ex. DW1/P1 and Ex. DW1/P2, admitted by the defendant no. 1 during his crossexamination, prove that the defendant no. 1 has encroached upon the municipal land beside covering the rear courtyard of the suit property. He argued that coverage of open courtyard without prior permission of the MCD and consent of the plaintiff in writing is unauthorized and liable to be demolished. He argued that the plaintiff had discharged the onus placed upon her in respect of the issue no. 1.
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20. Ld. Counsel for the plaintiff argued that the defendant no. 1 has failed to discharge the onus of proof that the coverage of the rear courtyard is permissible without permission from the MCD and in the absence of the consent of the plaintiff. He argued that the plaintiff is directly affected by the illegal construction raised by the defendant and therefore, the relief of mandatory injunction should be granted. He argued that in case the defendant no. 1 does not remove the construction raised by him in the rear courtyard of the suit property, then the MCD be directed to take statutory action under Section 343/345 A of the DMC Act.
21. Ld. Counsel for the defendant no. 1 argued that the plaintiff has admitted in her plaint that the construction in the rear courtyard of the suit property was in existence on the date of the filing of the suit on 09.07.1996. He argued that the plaintiff has stated in para no. 5 of the plaint that she had no objection with regard to coverage of rear courtyard of the suit property. He argued that the plaintiff was mainly aggrieved by the construction raised by the defendant no. 1 on the front courtyard of the suit property. He argued that the construction raised by the defendant no. 1 in the front courtyard was demolished during the pendency of the suit and in fact, the suit has become infructuous. He argued that the plaintiff is residing at the first floor of the suit property and coverage of rear courtyard would not affect her security, privacy or her right to free flow of air and light. He argued that the plaintiff has also stated in her plaint that her rights were not seriously affected by coverage of the rear courtyard of the suit property.
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22. Ld. Counsel for the defendant no.1 argued that the conduct of the plaintiff should also be taken into consideration as she had never raised any objection with regard to coverage of the rear courtyard and she is not entitled to relief of mandatory injunction in view of acquiescence. He argued that the construction in the rear courtyard is permissible under 6.4.1 Building Byelaws of the MCD. He argued that sunshade and canopy are permissible under the policy of the DDA. He argued that the defendant no. 1 had received a notice from DDA with regard to unauthorized construction in the suit property and thereafter, the unauthorized construction was demolished on 12.11.1996. He argued that DDA had not stated in its notice that the coverage of rear courtyard is an unauthorized construction nor the MCD had demolished the said construction. Therefore, it shows that the construction in the rear courtyard is not unauthorized otherwise MCD and/or DDA would have taken necessary action. He argued that the MCD has also not led any evidence that the defendant no. 1 has raised unauthorized construction in the rear courtyard of the suit property. He argued that the plaintiff has not examined any witness from the MCD or the DDA in order to prove that the coverage of rear courtyard is an unauthorized construction and not permissible under the policy of DDA and Building Byelaws of MCD. He argued that the defendant no. 1 had covered the rear courtyard with the consent of the plaintiff and as per policy of the DDA and therefore, the plaintiff is not entitled to relief of mandatory injunction.
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23. In so far as contention of Ld. Counsel for the defendant no. 1 on the basis of notice issued by DDA is concerned, it can be noted that no such document was either filed on record or proved in evidence. The defendant no. 1 exhibited three documents in his affidavit in examinationinchief i.e. bill for demolition charges Ex. DW1/1, notification dated 13.12.1996 Ex. DW1/2 and standard design of MIG flats Ex. DW1/3. In his statement recorded on 07.04.2010, the defendant no. 1 relied upon office order of DDA Mark A and standard design of MIG flats Ex. DW1/3. It is the specific case of the plaintiff that the defendant no. 1 had unauthorizedly covered the rear courtyard of the suit property. Mere fact that the plaintiff had not raised any objection at the time of coverage of the rear courtyard would not make an unauthorized construction as authorized one.
24. It is the case of the defendant no. 1 that he had covered the rear courtyard with the permission of the plaintiff and the J/E of the MCD. The defendant no. 1 has not proved any permission in writing given by the plaintiff allowing him to cover the rear courtyard of the suit property. The defendant no. 1 has not examined any witness from the MCD to prove that he had obtained permission from the MCD and/or DDA before covering the rear courtyard of the suit property.
25. It is the admitted case of the defendant no. 1 that he had covered the rear courtyard of the suit property. Standard design for MIG flats (100 sq. yds. Ex. DW1/3) shows that coverage of rear courtyard was proposed.
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26. The coverage of rear courtyard cannot be equated to a construction of a sunshade or canopy. Procedure for obtaining permission for coverage of rear courtyard is contained in instructions and guidelines for building permit and completion certificate in respect of DDA flats. Coverage of courtyard is permissible subject to fulfillment of building byelaws and structural safety. Addition/ alteration in DDA flats in the development areas of the DDA shall be permitted by DDA and in other areas by the MCD. In the present case, the defendant no. 1 had not obtained the permission of the DDA and/or MCD before covering the rear courtyard of the suit property. Though the DDA has proposed the coverage of rear courtyard but it could only be carried out with the permission and approval of the DDA and/or MCD. Coverage of rear courtyard is not covered by the additions/ alterations allowed by the DDA without permission of the DDA and/or MCD. Proposed coverage cannot be considered sanctioned ipsofacto in the absence of permission from the DDA and/or MCD.
27. The defendant no. 1 has admitted in his cross examination that he had not obtained any sanction or permission from the DDA/MCD while raising construction in the front courtyard of the suit property. He stated that he had obtained sanction/ permission from DDA for raising construction in the rear courtyard. It is seen that the defendant no. 1 has not proved any sanction/permission from DDA for covering rear courtyard of the suit property. In his crossexamination, the defendant no. 1 stated that except Ex. DW1/3, he does not possess any document to show that before raising construction in the rear courtyard, he had Suit No. 231/09 Page No. 12/14 Ruby Sen v. Gurdial Swarn Singh v. Ors.
obtained any sanction or permission. He stated that no separate sanction or permission was required. It is evident that the defendant no. 1 had covered the rear courtyard without seeking permission from the MCD and/or DDA and the coverage of the rear courtyard is therefore, an unauthorized construction.
28. The plaintiff is an occupant of the first floor over the suit property. She is directly affected by the unauthorized construction in the suit property and therefore, she has locusstandi to file the present suit.
29. This Court is of the considered opinion that the coverage of the rear courtyard is an unauthorized construction. It is not covered by 6.4.1 Building Byelaws of the MCD and therefore, it is not exempted from action under the DMC Act. In view of the aforesaid discussion, issue no. 2 is decided in favour of the plaintiff and against the defendant.
RELIEF:
30. In view of the findings on the issue no. 1, the suit of the plaintiff for the relief of permanent injunction is hereby dismissed.
31. In view of the finding on the issue no. 2, the suit of the plaintiff for the relief of mandatory injunction is hereby decreed and a decree of mandatory injunction is passed in favour of the plaintiff and against the defendants.
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32. Accordingly, the defendant no. 1 is hereby directed to remove the unauthorized construction in the rear courtyard of the Flat No. 273, Ground Floor, Block No.C4/C, Pocket No.14, Janakpuri, New Delhi within one month from today.
33. In case the defendant no. 1 fails to remove the unauthorized construction in the rear courtyard of the Flat No.273, Ground Floor, Block No.C4/C, Pocket No.14, Janakpuri, New Delhi, the defendant no.2/MCD is hereby directed to remove the said unauthorized construction in the rear courtyard of the suit property.
34. In the facts and circumstances of the case, parties shall bear their own costs.
35. Decree sheet be prepared accordingly.
36. File be consigned to Record Room.
Announced in the Open Court today the 5th July, 2011.
(SANJAY SHARMA) JSCCcumASCJcum Guardian Judge (West), Delhi 05.07.2011 Suit No. 231/09 Page No. 14/14