Delhi District Court
Brij Vivek Gupta (Huf) & Ors. vs . Sdmc on 8 November, 2021
Brij Vivek Gupta (HUF) & Ors. Vs. SDMC
IN THE COURT OF KISHOR KUMAR, JSCC/ASCJ/GJ
(WEST),
TIS HAZARI COURTS, DELHI.
Suit No. 10309/2016
1. Brij Vivek Gupta (HUF)
Through its Karta
Sh. Brij Bhushan Gupta
S/o Sh. Om Prakash Gupta
2. Sh. Brij Bhushan Gupta
S/o Sh. Om Prakash Gupta
3. Sh. Vivek Anand Gupta
S/o Sh. Brij Bhushan Gupta
Through his GPA Holder
Sh. Brij Bhushan Gupta
All Resident of :
W-35, Rajouri Garden
New Delhi-110027.
...........Plaintiffs
Versus
South Delhi Municipal Corporation
Through its Commissioner
Civic Centre, J. L. N. Marg
New Delhi-110002.
...........Defendant
Date of Institution : 21.01.2016
Date of final arguments: 01.11.2021
Date of decision : 08.11.2021
Final decision : Dismissed
Page no. 1 of 21
Brij Vivek Gupta (HUF) & Ors. Vs. SDMC
JUDGMENT
1. Plaintiff has filed the present suit for permanent injunction against the defendant/SDMC.
2. Facts necessary are that plaintiffs are owners of property bearing No. 182, S.P. Mukherjee Park, New Delhi, measuring 202.5 sq. yards 28'x65' (be referred as suit property). The colony S.P. Mukherjee was approved and developed by DDA. Over period of time, dispute arose about the nomenclature in the row of the plots and eventually the number of the plot of the plaintiffs was corrected and instead of 183, the same was assigned property No. 182 in the corrected layout plan of the Town Planner. The confirmation was made vide letter dated 22.6.1972 and 14.12.1972. The erstwhile owner got the sanction plan approved vide letter dated 15.9.1965. Form C was also granted on 25.9.1965 and 3.6.1966.
3. It is further stated by the plaintiffs that after purchase of the property in dispute, the plaintiffs carried out certain alteration during renovation of the property. However, on the complaint of one of the neighbours, the defendant initiated action against the construction in the property of the plaintiffs for which the plaintiff approached the Appellate Tribunal, MCD. The matter was disposed off by the Appellate Tribunal, MCD vide order Page no. 2 of 21 Brij Vivek Gupta (HUF) & Ors. Vs. SDMC dated 6.4.2005 with direction to the plaintiff to get the construction regularized.
4. Thereafter, rectification plan was filed with the Corporation by the plaintiffs and vide letter dated 07.09.2005, the defendant called upon the plaintiffs to deposit a sum of Rs. 90,200/- as regularization plan. Upon deposit of the compounding fee, the defendant Corporation issued the regularization plan of the property of the plaintiffs on 10.10.2005. The defendant never raised dispute about the ownership, identity and measurement of the property of the plaintiffs during sanction of the building plan and rectification plan as aforesaid. With development of S.P. Mukherjee Park Colony, some colonizer/developers illegally and unauthorizedly carved out a colony named 'Sham Nagar', just opposite the colony of the plaintiffs. The plot holders in the said unauthorized and unapproved colony, namely, Sham Nagar have raised massive unauthorized construction without sanction from the defendant and in this process of raising unauthorized construction, most of the plot holders of colony Sham Nagar have made massive encroachment on the public land and passage/road just in front of the property of the plaintiffs as well.
5. That the said encroachment have been made by the occupiers of the unauthorized colony, opposite the property of the plaintiffs, right under the nose of the officials of the defendant Page no. 3 of 21 Brij Vivek Gupta (HUF) & Ors. Vs. SDMC corporation. The officers of the defendant made no efforts to prevent the encroachment on the public land nor they stopped coming up of massive unauthorized construction thereon. The officials of the defendants were under a statutory duty to initiate immediate action but instead of that, the connivance of the officers of the defendants with the builder/land mafia was apparently visible. Shockingly enough, even the land passage has also been encroached by the occupier of the people living in Sham Nagar.
6. That lately, Association of Traders filed a Writ Petition before the Hon'ble High Court, seeking removal of unauthorized construction on the intervening road between Shyam Prasad Mukherjee Park and unauthorized colony Sham Nagar. In the said Writ Petition (Civil) bearing No. 23136 of 2005, the Hon'ble High Court directed the Corporation to remove the unauthorized encroachment and carve out width of the road at least 45 feet, vide its order dated 7th March 2007.
7. That the officials of the Corporation, who were hands-in- glove and were in active connivance with the colonizers and the occupiers of the plot, falling opposite to the property of the plaintiffs, made misrepresentation before the Hon'ble Court. Instead of removing the encroachments made unauthorizedly by the occupants of the unauthorized colony, Sham Nagar, in the right of way, demolished a portion of front set back of the Page no. 4 of 21 Brij Vivek Gupta (HUF) & Ors. Vs. SDMC property of the plaintiffs and some of his neighbours allegedly on the ground that the same is encroached on the public land. This was done with the clear intentions to save the unauthorized encroachments done by the occupiers of the plots of unauthorized colony, Sham Nagar.
8. That it is important to mention here that the Hon'ble Court has directed the defendant to remove the encroachment made by the occupier and it was for the officials of the defendant to identify the said encroachment with the assistance of the layout plan, sanction plans, property documents etc. of the area viz-a- viz the property in existence at the site. Instead of initiating action against the encroachers the officials of the defendant in complete disregard of the authenticated official record and documents, illegally showed undue favour to the occupants of the public land deliberately and intentionally made wrong demarcation and showed part of the properties of the plaintiffs and their neighbours as encroachment on the road, which is palpably false and contrary to the layout plan of the colony and sanction plan of the plaintiffs.
9. That the plaintiffs had submitted all the documents including the original layout plan of the colony, sanction plan of the plot dating back to the year 1965 and also the regularization plan obtained by the plaintiffs in the year 2005, to show convincingly that the property of the plaintiff is not an encroachment on the public land. The dimensions of the property Page no. 5 of 21 Brij Vivek Gupta (HUF) & Ors. Vs. SDMC was also disclosed to the officials of the Corporation through the documents, mentioned above, but the officials of the Corporation with a malafide intentions simply ignored the authenticated documents issued and approved by the Government and went ahead with their illegal actions.
10. It is further submitted by the plaintiffs that before initiating any action on the property of the plaintiffs, the officials of the defendant did not give any notice to show cause under the provisions of DMC Act, to the plaintiffs thereby causing severe prejudice to the plaintiffs.
11. That, thereafter, the plaintiffs also filed a Writ Petition (C) No. 6863/2009 before the Hon'ble High Court of Delhi, against the defendant thereby seeking restraint orders against them to the effect that the defendant should not demolish the sanctioned and approved plots/building of the plaintiffs and further to direct the defendant to demolish the actual encroachment done by the occupiers of the plot of the unauthorized colony, Sham Nagar and also to direct the officials of the defendant to maintain the dimensions of the plots as per sanctioned buildings plans obtained by the plaintiffs as certified by the Senior Town Planner, MCD .
12. That the Hon'ble High Court disposed of the said writ petition of the plaintiffs on 21.07.2015 on the ground that the Page no. 6 of 21 Brij Vivek Gupta (HUF) & Ors. Vs. SDMC same involves the disputed question of facts which cannot be decided in the writ petition and liberty was granted to the plaintiffs to approach the Civil Court vide order dated 21.07.2015 with further directions that the Civil Court shall proceed with the case of the plaintiffs without being influenced by the observations made by the Hon'ble High Court. The plaintiffs did try to assail the orders passed in the above writ petition by filing LPA bearing No. 679/2015, however, the Hon'ble Division Bench upheld the orders passed by the Ld. Single Judge in the writ petition and disposed of the LPA on 05.10.2015.
13. That in consonance with the orders passed in the writ petition, the plaintiffs are seeking their remedy before the Civil Court, hence, this suit has been filed by the plaintiffs.
14. The defendant filed their written statement. Except taking the legal objections, they have submitted that :-
a) A PIL WPC No. 23236/05 was filed by the RWA Chand Nagar in the matter of Resident Welfare Association Chand Nagar Vs. Govt. of NCT of Delhi and others for the widening of the road 28 feet to 30 ft.
in the first instance and subsequently upto 45 ft. as per the provisions of lay out plan which shows ROW of road in question as 60 ft. Hon'ble Divisional bench vide order dated 10.05.2006 directed MCD for making a 45 ft. wide road and also observed that "A sale deed Page no. 7 of 21 Brij Vivek Gupta (HUF) & Ors. Vs. SDMC that has been executed in contravention of the provisions of Delhi land Reforms Act cannot be given effect to. However, we do not want to express any final opinion on this question and leave it open to be considered on the next date of hearing. Let the survey be conducted and report be filed within four weeks "copy of the Hon'ble Court order dated 10.05.2006 and lay out plan of the colony annexed as annexure R-1 (colly.)
b) Hon'ble Court in WPC No. 23136/2005 vide orders dated 18.12.2006 directing the MCD to take all necessary steps for removal of unauthorized constructions/encroachments from the road in question for making available a 45 ft. wide road in terms of the orders of the court passed on 19.5.2006 and reiterated on 15.11.2006. Copy of the order dated 18.12.2006 directed MCD to take all necessary steps for removal of unauthorized constructions/encroachments from the road in question for making available a 45 ft. wide road in terms of the orders of the court passed on 10.05.2006 and reiterated on 15.11.2006. Copy of the order dated 18.12.2006 is hereby annexed as annexure R-2.
c) That a SLP was filed by Punjabi Market Shopkeepers Welfare Associations Vs. Residents Page no. 8 of 21 Brij Vivek Gupta (HUF) & Ors. Vs. SDMC Association Chand Nagar and others against the aforesaid order dated 18.12.2006 and Hon'ble Supreme Court dismissed the SLP vide order dated 19.02.2007 and directed applicant to approach the High Court for appropriate remedy. Copy of SLP order dated 19.02.2007 is hereby annexed as anneure R-3.
d) Hon'ble High Court on 07.03.2007, while delivering the order in the WPC No. 23136/2005 along with the Cms after considering the plea of the shopkeepers Association of Chand Nagar, Punjabi Market Road and in pursuant of th SLP order dated 19.02.2007, further reiterated the orders dated 10.05.2006 and 18.12.2006 directed MCD to make the road atleast 45 ft. wide. Copy of the order dated 07.03.2007 is hereby annexed as annexure R-4.
e) The Hon'ble High Court vide order dated 28.03.2007 further dismissed the review application filed in R.A. No. 123/2007 with the costs of Rs. 2000/-. Copy of the order dated 28.03.2007 is hereby annexed as annexure R-5.
f) The Hon'ble High Court vide order dated 22.08.2007 directed MCD to construct drainage and the road after filing the status report with regard to the Page no. 9 of 21 Brij Vivek Gupta (HUF) & Ors. Vs. SDMC removal of all encroachments within the ambit of 45 ft. R.O.W. except few religious structure, few MCD properties, Delhi Govt. properties & electric poles by the MCD. The Hon'ble court directed to remove all such encroachments in order to complete the road and drainage within 6 months of the order dated 22.08.2007 is hereby annexed as annexure R-6.
g) The Hon'ble High Court vide order dated 08.12.2008 while dismissing the CMs in WPC 23136/2005 directed MCD to expedite the work of covering of drainage so as to widen the road and also stipulated that the drainage will be covered to make a pathway for use of pedestrians from both side of the road and such pathway will form part of the 45 ft. wide road. Copy of the order dated 08.12.2008 is annexed as annexure R-7.
h) The Hon'ble High Court vide order dated 07.08.2209 directed to remove the encroachment and also directed Delhi Police Commissioner to provide adequate police force in order to protect the employees of the MCD and to maintain law and order at the time of removal of the encroachments. The status of the drainage work was submitted before the Hon'ble Court Page no. 10 of 21 Brij Vivek Gupta (HUF) & Ors. Vs. SDMC and to Hon'ble Court directed to complete the drainage work also within 3 months. Copy of the order dated 07.08.2009 is hereby annexed as annexure R-8.
i) The Hon'ble High Court vide order dated 25.01.2010 did not grant any relief to the petitioners in respect of encroachments removal action taken by the MCD who had filed various CM Appl. Nos. 13861- 13862, 18618, 18645/2009 in compliance of the order dated 07.08.2009 in the contempt case, copy of the order dated 25.01.2010 is hereby annexed as annexure R-9.
j) The Hon'ble High Court vide order dated 08.04.2010 disposed off the contempt petition as the case Cont. case 649/2009 dismissed as withdrawn and directed MCD to remove the encroachment within the 45 ft. ROW and complete the drainage/footpath and road. Copy of the order dated 08.04.2010 is hereby annexed as annexure R-10.
k) That aggrieved by the demolition actions by the department completing the drainage and widening work, some of the shopkeepers/ residents of both side of the road approached Hon'ble Court by filing various writ petitions as well as various Cms in order to stall Page no. 11 of 21 Brij Vivek Gupta (HUF) & Ors. Vs. SDMC the demolition actions as well as construction of the drainage system.
l) The Hon'ble High Court was requested by way of an application filed by the department to get clubbed all the matters pertaining to the widening of the Chand Nagar Road in the PIL 23136/2005 and the said application was allowed by the Hon'ble Court and all the matters such as WP (C ) No. 10/2010, WP ( C) no. 255/2010, WP ( C) no. 12763/2010 Cont. case No. 243/2010 were heard together and were disposed off by the Hon'ble Court on dated 12.11.2010. All the petitions were dismissed with no relief to the petitioners. Copy of the order is annexed as annexure R-11 and SLP filed thereof were also disposed off without any relief to the appellant. Copy of the order is annexed as annexure R-12.
m) The drainage work along with the footpath with in 45 ft. ROW to be completed as per direction of Hon'ble High Court is held up due to an interim stay order given by the Hon'ble High Court in the matter of R. S. Juneja Vs. MCD in WP no. 6863/2009, R. S. Juneja Vs. K. S. Mehra in CCP No. 332/2010 in WP (C ) No. 6863/2009 in Brij Vivek Gupta Vs. MCD in WP (c ) no. 1328/2008. The hon'ble Court dismissed the matter Page no. 12 of 21 Brij Vivek Gupta (HUF) & Ors. Vs. SDMC of Brij Vivek Gupta Vs. MCD in WP (c ) no.
1328/2008 on dated 21.07.15 ( copy of the order dated 21.07.15 is annexd as annexure R-13) along with the C. M. Application 16269/2015 & 16270/2015 were also dismissed in WP ( C) No. 1228/2008 on dated 21.08.15 by the Hon'ble Court ( copy of the order dated 21.07.15 is annexed as annexure R-14) and SLP 679/2015 CM No. 221142-43/2015 and CM No. 22144/2015 were also dismissed by the Hon'ble Division Bench on dated 05.10.2015 copy of the said is annexed as annexure R-15 with no relief granted to the petitioners with respect to the stay for the drainage and the footh path and with the liberty to file a civil suit.
n) The total length of the road is 1.2 Km (1200 mtr.) total length of the footpath on both side of the road is 2400 mtr. and length constructed /completed at site footpath is also 2100 mtr. Except for the connecting lanes. Total length of the drainage to be completed is 2400 mtr. and constructed/ completed at site is 2220 mtr.
The remaining footpath to be constructed is 120 mtr. Over the constructed drains portion and over the drain portion which has to be undertaken in a length of 180 meters, the balance work has to be completed for Page no. 13 of 21 Brij Vivek Gupta (HUF) & Ors. Vs. SDMC implementation of orders of the Hon'ble High Court of Delhi.
15. The plaintiffs filed replication to the written statement of the defendant reaffirming and reiterating the contents of the plaint and denied the contents of the written statement.
16. On the basis of pleadings of parties following issues have been framed for trial on dated 08.09.2016:-
(1)Whether the plaintiff is entitled for a decree of permanent injunction, as prayed in clause (a) & (b)?OPP (2)Whether the suit is barred under Section 477 & 478 of Act?OPD (3)Whether plaint does not disclose any cause of action, hence the same be rejected under Order 7 Rule 11 CPC? OPD (4)Whether the suit is bad for mis-joinder and non-joinder of parties?OPD (5)Whether the suit is not maintainable in the present form?OPD (6) Whether this court has no pecuniary jurisdiction to try and entertain the present suit?OPD (7) Relief.
17. The plaintiffs to prove their case, have examined plaintiff no.1 by way of his affidavit in evidence Ex. PW1/A. He has Page no. 14 of 21 Brij Vivek Gupta (HUF) & Ors. Vs. SDMC relied on the following documents:-
1.Site plan- Ex. PW1/12.Three Sale Deed - Ex. PW1/2 to Ex. PW1/4
3. Sanction plan of MCD- Ex. PW1/5 4. C-Form of MCD- Ex. PW1/6
5. Completion certificate- Ex. PW1/7
6. Permit issued by Ministry of Defence- Ex. PW1/8
7. Two letters for change of address of property in lay out plan - Ex. PW1/9 & Ex. PW1/10
8. Copy of the Regularization Plan - Ex. PW1/12
9. Seven photographs of properties opposite to the suit property - Ex. PW1/13 to Ex. PW1/19.
10. Ex. PW1/11 is de-exhibited and marked as Mark A.
18. On the other hand, the defendant/SDMC has not examined any witness.
19. I have heard Ld. Counsel for the plaintiffs, Ld. Counsel for the defendant and have carefully gone through the record. My issue wise findings are as under:-
ISSUE NO. 2"Whether the suit is barred under Section 477 & 478 of DMC Act?OPD".
20. Onus of proving this issue has been on the defendant.
Page no. 15 of 21 Brij Vivek Gupta (HUF) & Ors. Vs. SDMC Plaintiff has filed the present suit for permanent injunction apprehending an immediate action on the part of the defendant that they were going to encroach upon the suit property illegally and arbitrarily. As per proviso appended to Section 477/478 of DMC Act, in the cases of urgent relief/injunction, the condition of serving two months prior notice upon the Corporation can be waived. Otherwise also, the defendant had been in knowledge of the grievance of the plaintiff since long when the plaintiff had filed various litigations before the Hon'ble High Court.
Hence, this issue is decided against the defendant and in favour of the plaintiff.
ISSUE NO. 3"Whether plaint does not disclose any cause of action, hence the same be rejected under Order 7 Rule 11 CPC?OPD".
21. Onus of proving this issue has been on the defendant. Cause of action is bundles of facts. The plaintiff had been directed by the Hon'ble High Court to approach this court as it involved disputed facts which needed trial. Therefore, from the facts of the case, it cannot be said that plaintiff did not have any cause of action to file the present suit, but certainly subject to proof as per law.
This issue is therefore decided against the defendant and in favour of the plaintiff.
Page no. 16 of 21 Brij Vivek Gupta (HUF) & Ors. Vs. SDMC ISSUE NO. 5 "Whether the suit is not maintainable in the present form?OPD".
22. Onus of proving this issue has been on the defendant. Except taking this objection in the written statement, the defendant has not led any evidence or advanced any arguments as to in which form the suit should have been filed by the plaintiff.
This issue is accordingly decided against the defendant and in favour of the plaintiff.
ISSUE NO. 6.
" Whether this court has no pecuniary jurisdiction to try and entertain the present suit?OPD".
23. Onus of proving this issue has been on the defendant. The defendant has not led any evidence or advanced any arguments as to how this court has got no pecuniary jurisdiction to try and entertain the present suit. The plaintiff has filed the present suit for permanent injunction which has been properly valued by the plaintiff, on which proper court fees has been affixed.
This issue is accordingly decided against the defendant and in favour of the plaintiff.
Page no. 17 of 21 Brij Vivek Gupta (HUF) & Ors. Vs. SDMC ISSUE NO. 4 "Whether the suit is bad for mis-joinder and non- joinder of parties?OPD".
24. Onus of proving this issue has been on the defendant. The defendant has taken specific defence in the written statement that plaintiff has not made party the persons of the properties just opposite his house and against whom the plaintiff allege that they have encroached on the road. However, it is seen that no questions have been asked from the plaintiff/PW-1 relating to this issue nor the defendant led any evidence in this regard. Moreover, according to Order 1 Rule 9 CPC, no suit shall be defeated by reason of the mis-joinder or non-joinder of the parties, as the court may in every suit deal with the matter in controversy so far as regards the rights and interest of the parties actually before it.
This issue is accordingly decided against the defendant and in favour of the plaintiff.
ISSUE NO. 1.
"Whether the plaintiff is entitled for a decree of permanent injunction, as prayed in clause (a) & (b)? OPP".
25. Onus of proving this issue has been on the plaintiff. PW-1 Page no. 18 of 21 Brij Vivek Gupta (HUF) & Ors. Vs. SDMC has been cross-examined by Ld. Counsel for the defendant. The plaintiff/PW-1 has shown ignorance to the measurement of the road in the rectification plan Ex. PW1/12. The entire dispute is with regard to the width of the road in question in front of the house of the plaintiff.
26. I have carefully gone through the affidavit of the plaintiff/PW-1 and find that except talking about the measurement and size of his house, the plaintiff has not mentioned the size and dimension of the road in front of his house. It is an admitted fact that various writs were filed before Hon'ble Delhi High Court and repeated directions were issued to the defendant to widen the road atleast 45 ft. wide in the colony in question. It has also been observed by Hon'ble Delhi High Court that the sale deed of the persons like the plaintiff in particular, is in violation of the provisions of the Delhi Land Reforms Act if public land has been covered by them in the garb of the said Sale Deeds. The officials of the defendant either on 08.01.2016 or prior thereto, had been trying to implement the orders of Hon'ble Delhi High Court passed in various writ petitions pertaining to the road in question. Therefore, it cannot be said that the defendant had acted illegally or arbitrarily while trying to widen the road in question to the extent of 45 ft. including the drainage.
27. In view of the above, it is held that in these circumstances, Page no. 19 of 21 Brij Vivek Gupta (HUF) & Ors. Vs. SDMC when the 60 ft. wide ( as directed by the Lieutenant Governor) road is to be widened atleast 45 ft. as directed by Hon'ble Delhi High Court, no injunction can be passed/granted to the plaintiff.
28. In the order dated 07.03.2007 passed in writ petition No. 23136/2005 and CM No. 1197/07, 1209-1211/07 it has been observed by Hon'ble Delhi High Court that " the reports clearly indicates that the road in question has been shown as 18 meter, which comes to 60 ft. This width of 18 meter has been shown after a field survey was conducted by the MCD and submitted to the Urban Development Department". The plaintiff has not challenged the above record of the defendant anywhere nor before this court. The defendant has been acting in public interest and in compliance of various directions of Hon'ble Delhi High Court. The plaintiff thus, has failed to discharge the onus of proving this issue.
This issue is accordingly decided against the plaintiff and in favour of the defendant.
RELIEF
29. In view of my observations on issue no.1, the suit of the plaintiff is hereby dismissed with no order as to cost.
Page no. 20 of 21 Brij Vivek Gupta (HUF) & Ors. Vs. SDMC
30. Decree sheet be prepared accordingly.
31. File be consigned to Record Room.
KISHOR
KUMAR
Pronounced in the open court (Kishor Kumar)
Digitally signed
on 08.11.2021 JSCC/ASCJ/GJ (WEST)
by KISHOR
KUMAR
Delhi :
Date:
2021.11.09
16:43:14 +0530
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