Delhi District Court
Shri Suresh Chander Goel vs Shri Ashish Apte on 23 October, 2007
IN THE COURT OF SH. VIVEK KUMAR GULIA
CIVIL JUDGE:DELHI.
Suit No. 242/06
1. Shri Suresh Chander Goel,
2. Shri Ramesh Chander Goel
Both sons of late Shri M.R. Gupta,
3. Smt. Draupati Devi,
W/o late Shri M.R. Gupta,
And R/o D4/9, Model TownIII,
Delhi110009. ... Plaintiffs
V e r s u s
1. Shri Ashish Apte
2. Smt. Vaijayanti Apte,
both r/o Ist floor,
D5/9, Model TownIII,
New Delhi.
3. Shri Vikas Jain,
4. Smt. Parbha Jain,
both r/o Ground floor,
D/5/9, Model TownIII,
New Delhi.
5. Municipal Corporation of Delhi,
through its Commissioner,
Town Hall, Delhi110006. ... Defendants
Date of Institution: : 29.11.1999
Date of Decision: : 23.10.2007
2
JUDGMENT:
1. This is a suit for permanent injunction and mandatory injunction.
2. The case of the plaintiffs, as stated in the plaint, is that Smt. Draupati Devi w/o late Sh. M.R. Gupta is the owner of the house property bearing Municipal No. D4/9, Model TownIII and the defendant no. 1 and 3 (originally defendant no. 1A) are owner of the house property bearing Municipal No. D5/9, Model Town III, Delhi09 (hereinafter referred to as suit property) and the property of defendant no. 1 is situated just behind the plaintiff's property. It is further submitted that defendant no. 1 and 3 have engaged Sh. Anil Jain (originally defendant no. 2 but now deleted) for the construction purposes and in active connivance of the each other got constructed four storeyed building at the suit property but for this defendant no. 1 and 3 have not taken permission from MCD. It is further pleaded that the most of the residential houses of the Model Town is 3 constructed in a manner that some space is left vacant on all the three sides and as per the municipal laws, the area of 10ft. has to be left open on both sides and 15 ft. in the front side.
3. Further it has been alleged that defendant no. 1 made unauthorised construction in the suit property up to the plaintiffs boundary wall leaving no space in between and therefore, light and air are completely blocked from the backside of the plaintiffs property. It is also stated that the kitchen, bathroom, ventilators, space for air conditioners are constructed by defendants just beside the boundary wall which would result into the foul smell and emission of hazardous gases, hot air and effluents. Further pleaded that plaintiffs made repeated complaints and representations to MCD but needful was not done. It is also mentioned that on 05.10.99, MCD officials visited the suit premises but made just two small wholes with utmost care so that no real damage be caused to premises in question and as such this demolition action was mere an eye wash. With support of aforesaid facts, plaintiffs pray for decree of 4 permanent injunction against MCD whereby restraining it from permitting any illegal and unauthorised construction by the defendants and a similar decree against other defendants restraining them from raising any illegal and unauthorised construction at the suit property. Decree of mandatory injunction is also prayed whereby directing the MCD officials to demolish the illegal and unauthorised construction at the suit property.
4. On service of summons, defendants appeared and filed written statement. Defendants no. 1 and 3 filed written statement submitting that the ground floor portion of the suit property is owned by defendant no. 4 who is wife of defendant no. 3 and upper floors of the suit property are owned by defendant no. 1 and his mother, defendant no. 2. Further it is denied that defendant no. 1 constructed the building at the suit property without permission of the competent authority and it is also denied that 10 ft. area is to be left open on the sides of the suit property. The allegation of plaintiffs that construction of defendants is causing injury and private nuisance to plaintiffs is also denied. However, it is mentioned that there 5 was deviations on the rear part of the building and the same was condoned by MCD as composition fees vide receipt no. 226078 was deposited with MCD on 22.07.99. It is also stated that such deviations are in existence in almost all the adjoining buildings in the area.
5. Defendants no. 2 and 4 filed separate written statement and similar defence, as taken by defendants no. 1 and 3, has been taken.
6. MCD submitted vide its written statement that deviations against sanction building plan no. 194/B/CLZ/98 dated 30.11.98 at Ground Floor, First Floor and Second Floor was noticed in the suit property and accordingly the same has been booked vide file no. 143/B UC/CLZ/99 dated 01.09.99 and after following due process of law, demolition order has been issued and served upon the owner/builder who fails to comply with the instructions contained therein. As such the unauthorised constructions of walls, one room, one bath room, and one store room at the third floor and walls of a bathroom and a small room in 6 rear side at second floor was demolished on 05.10.99 and the remaining deviations/unauthorised construction shall also be removed in due course of time as per policy of the Corporation.
7. Thereafter, on 20.04.01, Ld. Predecessor of this Court framed the following issues :
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.
8. After settling the issues, plaintiff was given opportunity to lead evidence first. Plaintiff no. 1 himself entered into the witness box as PW1 and was duly cross examined by defendants. On their turn, defendants produced three witnesses. Sh. Vikas Jain (defendant no. 3), 7 Smt. Vijayawanti Apte (defendant no.2) and Sh. Ashish Apte (defendnat no.1) deposed as DW1, DW2 and DW3 respectively. MCD opted not to lead any evidence.
9. I have heard the learned Ld. Counsel for both the parties and perused the record.
My issuewise findings are as under:
ISSUES NO. 1 and 2:
Both the issues, being interconnected, are taken up together and would be decided by common findings.
10. It has been categorically pleaded by plaintiff in his plaint that 8 defendant no. 1 and 3 are the sole owner of the suit property which is situated just behind the plaintiff's property and they constructed 4 storey building on the suit property without following the building bye laws of MCD and therefore, suit property has been illegally and unauthorisedly constructed. It has also been alleged that the construction at the suit property has been raised without leaving the stipulated area (10 ft) open on both the sides of the suit property and it has resulted into the blockade of light and air from the backside and further because of construction of kitchen, bathrooms, ventilators, space for air conditioners by defendants just beside the boundary wall at the backside of the suit property would result into the foul smell and emission of hot air, hazardous gases/effluents. Further it is mentioned that MCD officials carried out only minor demolition action on 05.10.99 at the suit property and major portion of unauthorised structure is still existing at the suit property.
11. To prove his case, plaintiff no. 1 has testified as PW1 that ground floor of the suit property belongs to Sh. Vikas Jain and Prabha 9 Jain and first and second floor belongs to Sh. Ashish Apte and Smt. Vaijayanti Apte. Further it was deposed that defendants have raised 30 ft. wall due to which light and air is blocked and in this regard he filed a complaint to police on 07.03.99 but the police did not take the action. Further stated that he has been deprived of air and light by the defendants and obnoxious gases and foul smell are emitted from the adjoining suit property. It is also testified that as per the layout plan, the builder should leave 15 ft. vacant area from front side and 10 ft. from the backside. It is further testified that on 05.10.99, MCD staff punctured 23 side wholes in the walls of second and third floor of the suit property.
12. On the other hand, case of the defendants is that there was some deviation on the rear part of the building and same was condoned by MCD and in this regard composition fees was deposited with MCD. It is also stated that such deviations are in existence in almost of the adjoining buildings in the area. The other allegations of plaintiff have been denied.
10
13. Shri Vikas Jain, DW1, Smt. Vaijayyanti Apte, DW2 & Shri Ashish Apte, DW3 have deposed that they have not raised any unauthorised construction in the suit property. DW3 further testified that MCD officials visited his property and as there were some deviations in the property, they demolished the same and now there is no unauthorised construction in the property.
14. On the basis of aforesaid testimonies given by the contesting parties, it has become clear that some deviations in violation of the sanctioned plan were existing at the suit property. Further DW3 has admitted that MCD has carried out some demolition work at the suit property to remove the unauthorised structure (deviations). Moreover, the written statement of MCD further clears the status of suit property whereby it has been submitted that deviations against sanctioned building plan at Ground Floor, First Floor and Second Floor was noticed in the suit property and accordingly the same has been booked on 01.09.99 and after following due process of law, demolition order has been issued and 11 served upon the owner/builder who fails to comply with the instructions contained therein. It is also mentioned that the unauthorised construction at the third floor and second floor was demolished on 05.10.99.
15. It is noteworthy that it is not the case of the defendants that MCD has demolished some part of the property illegally nor it has been mentioned that they ever challenged the demolition action of the MCD. All this impliedly shows that there is some truthfulness in the allegation of plaintiff as to the existence of unauthorised structure at the suit property. Although defendants have stated that MCD has condoned the deviations which were existing against sanctioned plan after the deposition of composition fees on 22.07.99 but at the same time it has been admitted that demolition action at the suit property has been carried out on 05.10.99. All it suggests that the contention of defendants that MCD has condoned the deviations against the sanctioned plan after the deposition of composition fees is without any force because if the case would have been as pleaded by the defendants, there would not have 12 arisen any occasion for demolition action at the suit property. Moreover, MCD has not supported the case of defendants that deviations against the sanctioned plan has been condoned by it. Further MCD, vide its status report dated 24.11.05, has submitted that after the demolition action dated 05.10.99, further demolition action was taken on 15.06.04 whereby staircase and mumty at the suit property were punctured. Also, MCD has admitted that further demolition action is still required to be taken in respect of suit property.
16. Thus, on the preponderance of evidence, I hold that plaintiffs have discharged their burden to prove the issues and therefore, issues no. 1 & 2 are decided in favour of plaintiffs and against the defendants.
13 RELIEF :
In light of aforesaid findings, plaintiffs are entitled to following reliefs:
(i) A decree of permanent injunction is passed in favour of plaintiffs and against defendants no. 1 to 4 whereby defendants, their agents, servants, etc. are restrained from raising any construction contrary to building bye laws of MCD at property no. D5/9, Model TownIII, Delhi09.
(ii) A decree of mandatory injunction is passed in favour of plaintiffs and against the MCD whereby it is directed to demolish the illegal and unauthorised structure existing at the aforesaid property after complying with all the necessary formalities of law.
14
17. Parties, in the facts and circumstances of this case, are left to bear their respective costs.
Announced in the Open Court [ VIVEK KUMAR GULIA ]
Today on 23rd day of CIVIL JUDGE:DELHI.
October, 2007.
Suit No. 242/06
23.10.2007
Present: None.
Vide separate judgment of even date, suit has been decreed. Decree sheet be prepared accordingly. File be consigned to RR.
[ VIVEK KUMAR GULIA ] CIVIL JUDGE:DELHI.
23.10.2007