Delhi District Court
Sh. Bharat Singh vs Municipal Corporation Of Delhi on 25 February, 2015
IN THE COURT OF NAVEEN GUPTA, ADDITIONAL SENIOR CIVIL
JUDGECUMJUDGE, SMALL CAUSES COURTCUMGUARDIAN
JUDGE, NORTH WEST DISTRICT, ROHINI COURTS, DELHI.
Suit No. 315/09/03
Sh. Bharat Singh,
S/o Late Sh. Mam Chand,
R/o House no. 19, Village Badli Extn.,
Delhi110042. ....Plaintiff
Versus
1. Municipal Corporation of Delhi,
Through its Commissioner,
Town Hall, Chandni Chowk,
Delhi110006.
2. Rajender,
S/o Sh. Om Prakash,
R/o House no. 119, Village Haiderpur,
Delhi110042. ....Defendants
Date of Institution: 22.12.2003
Date on which judgment was reserved: 04.02.2015
Date of pronouncing judgment: 25.02.2015
JUDGMENT
1. The plaintiff has filed the present suit, initially, against Sh. Om Prakash, S/o Sh. Suraj and Municipal Corporation of Delhi (MCD). Later on, Sh.
Suit No. 315/09/03 Bharat Singh v. MCD & Anr. 1 of 17 Rajender, S/o Sh. Om Prakash was also impleaded as one of the defendants. During trial of the present case, Sh. Om Prakash expired and case against him was abated. However, for the sake of convenience, Sh. Om Prakash has been referred as 'D1', MCD has been referred as 'D2' and Sh. Rajender as 'D3' in this Judgment.
2. Through the present suit, the plaintiff has prayed for decree of permanent injunction restraining D3 from raising any further construction/ encroachment on the gali situated in front of houses of the plaintiff and D3 situated in Village Haiderpur, Delhi and of mandatory injunction directing defendants to demolish the alleged encroachment/construction.
3. Brief facts of the case of the plaintiff are that he is the owner of house no.
118 A measuring 50 sq. yards situated in Village Haiderpur, Delhi. He had been in possession of the above said house through his tenant. The main gate of house opened towards gali in Eastern side. D1 and D3 were the owner and in possession of house no. 119, measuring approximately 200 sq. yards situated in Village Haiderpur and the same adjoined the house of plaintiff. The house of D1 and D3 was having main gate towards gali in Northern side. The gali was of 10 feet width approximately. The road and drains situated in Village Haiderpur were duly being maintained by D2 and it was the duty of D2 to protect the same from any encroachment. The plaintiff was resident of Village Badli and he used to visit his above said house to collect the rent from his tenants once or twice in a month. He Suit No. 315/09/03 Bharat Singh v. MCD & Anr. 2 of 17 visited his above said house on 15.12.2003 and became surprised having seen a room constructed upon gali in front of his house by D1 and D3 illegally and unauthorizedly. The plaintiff asked them to remove the said illegally constructed room, but they flatly refused. They openly threatened the plaintiff with dire consequences. They had partitioned their plot in two portions and an additional gate was also fixed to enter in the said illegally constructed room. The alleged construction had covered half width of the gali and the entire front of house of the plaintiff. D2 had also not taken any action against D1 and D3 in respect of demolition of the alleged construction despite the knowledge that the same had created nuisance to the general public at large and prevented the light to the plaintiff. Further, on 20.12.2003, the plaintiff again requested D1 and D3 to demolish the alleged construction, but they refused to accede to his request and extended threat that they would construct the first floor on the said construction. Hence, the plaintiff has filed the present suit.
4. In his written statement, D3 has stated that present suit was filed without any cause of action because he (D3) had merely repaired his already existing construction which had been raised before year 1968. Further, D1 had no right, title or interest in the suit property as the same had already been given to D3 in partition. Further, present suit was not appropriately valued for the purpose of court fees and jurisdiction. He has further stated that an electric pole was affixed by the Government in year 1960 when the Village was electrified. Even then, the construction was in existence and Suit No. 315/09/03 Bharat Singh v. MCD & Anr. 3 of 17 electric pole was installed near the property in question, meaning thereby the suit property was not in public gali. Further, the present suit was not maintainable as equally efficacious remedy could be obtained by proceedings for removal of alleged construction/encroachment from public way under Section 133 Cr. P.C. He has denied all other allegations/claims made by the plaintiffs in his plaint.
5. In the written statement filed on behalf of D2, it has been stated that present suit was barred by provisions under Section 477/478 of the DMC Act. Further, the concerned area official had inspected the suit site and it had been noticed that there was an encroachment in the shape of pukka room measuring approximately 10' x 8' at the end of the street. However, the encroached portion was old and occupied. But, recently, some construction activities were carried out by the owner/occupier of the suit property over the encroached portion.
6. On the basis of pleadings of the parties, following issues were framed by the Court vide order dated 17.11.2009:
1. Whether the plaintiff is entitled for the relief of permanent injunction as prayed for? (OPP)
2. Whether the plaintiff is entitled for the relief of mandatory injunction as prayed for? (OPP)
3. Whether the suit is barred by Section 477/478 of DMC Act? (OPD1 &
3) Suit No. 315/09/03 Bharat Singh v. MCD & Anr. 4 of 17
4. Whether the plaintiff has no locusstandi to file this case? (OPD1 & 3)
5. Whether the suit is without any cause of action? (OPD1 & 3)
6. Whether the suit is not properly valued for the purpose of court fees and jurisdiction? (OPD1 & 3)
7. Whether the suit is barred by Section 133 of Cr. P.C.? (OPD1 & 3)
8. Relief.
7. To prove his case, the plaintiff has examined two witnesses. PW1 is the plaintiff himself. He submitted almost on the similar lines as stated by him in the plaint. He tendered the site plan as Ex. PW1/1. PW2 is Sh. Anil Kumar. He stated that in the month of November 2003, plaintiff approached him and showed his desire to sell his house. He requested him to arrange purchaser. On his (plaintiff) request, he visited the said property to see the same in the last week of November 2003. At that that time, there was no room or any structure in front of the house of plaintiff. In the third week of December 2003, he arranged a prospective purchaser for the property of plaintiff and alongwith said purchaser, he went there to show it to him (purchaser). He became surprised seeing unauthorized room constructed over the gali in front of the house of plaintiff. Thereafter, the prospective purchaser refused to purchase the house of plaintiff. Thereafter, plaintiff closed his evidence.
8. To prove its stand, D2/MCD examined one witness. D2W1 is Sh. S. K. Vashisht. He submitted almost on the similar lines as stated in the written Suit No. 315/09/03 Bharat Singh v. MCD & Anr. 5 of 17 statement filed on behalf of D2. During his crossexamination, he tendered in evidence the photographs of the suit premises as Ex. D2W1/1 and Ex. D2W1/2 and action taken report filed on 22.10.2008 as Ex. D2W1/3. Thereafter, defence evidence of D2 was closed.
9. To prove his defence. D3 examined 3 witnesses. D3W1/1 is the D3 himself. He submitted almost on the similar lines as stated by him in his written statement. He tendered Khatoni for the year 1986 regarding Khasra no. 910/466 of Village Haiderpur as Ex. D3W1/1. D3W2 is Sh. Naresh Kumar Yadav and D3W3 is Sh. Ram Bir Yadav. They too submitted on the similar lines as deposed by D3W1/D3. Thereafter, D3 closed his evidence.
10.I have heard final arguments from respective counsels for plaintiff and defendants. I have perused the record.
11. Issuewise findings are as follows:
Issues no. 1 and 2 The present case of plaintiff is based upon two aspects. Firstly, D3 encroached upon the gali, situated in front of house of plaintiff and D3, in the form of one room and secondly, D3 raised construction over the first floor of the said room. The Court takes first aspect into consideration as to whether D3 had encroached upon the gali by constructing a room. In his Suit No. 315/09/03 Bharat Singh v. MCD & Anr. 6 of 17 plaint, the plaintiff stated that when he visited his house on 15.12.2003, he saw the said room constructed upon the gali. But, during his cross examination, he (PW1) stated that Rajinder Singh [his tenant] called him on telephone regarding raising encroachment and then he came to know [about the same]. By the time he reached at the disputed spot, only DPC was there and no upper construction was there. It took about 1012 days in raising the alleged construction above DPC. There is contradiction in the version of plaintiff made in his plaint and his crossexamination. In his plaint, the plaintiff had not submitted that his tenant had informed him about the alleged encroachment. Moreover, in his plaint, he had stated that on 15.12.2003, he saw room constructed upon the gali. But, from his cross examination, it is clear that the alleged construction had been carried out by D3 after his first visit pursuant to the intimation given to him by his tenant.
Furthermore, it took 1012 days for completion of construction. Surprisingly, in the plaint, the plaintiff had stated that on 20.12.2003 too, he had asked D1 and D3 to demolish the said construction. When it took 1012 days in raising the alleged construction above DPC, then how the plaintiff could have noticed existence of the alleged room on 20.12.2003.
12.From the case of plaintiff, it can be made out that his (plaintiff) tenant namely Sh. Rajinder Singh must have witnessed the construction of the alleged room. He could have been the best witness to the present case in respect of alleged construction/encroachment. But, for the reasons best known to the plaintiff, he was not examined by him. If the testimony of the Suit No. 315/09/03 Bharat Singh v. MCD & Anr. 7 of 17 plaintiff recorded as PW1 is accepted as true; in that circumstance, it is very surprising that when the alleged construction had been raised by D3 in the knowledge of plaintiff, then why he did not produce any photograph showing underconstruction activity of the alleged room. Further, it is case of the plaintiff that width of the impugned gali is 10' and D3 had covered half of the same. Then, the width of the gali must have been left only of 5' approximately, which does not appear to be probable.
13. The plaintiff has examined PW2 as well to substantiate his version on this aspect. It is reiterated that the tenant of plaintiff Sh. Rajinder Singh could have been the best witness. But, it remained unexplained that instead of examining him, why the plaintiff preferred to examine PW2 Sh. Anil Kumar. Even otherwise, considering the peculiar facts and circumstances of the case, variation in the timing mentioned in the evidence affidavit and crossexamination of PW2 becomes relevant. In his evidence affidavit Ex. PW2/A, PW2 stated that he visited the house of plaintiff to see the same in the last week of November, 2003. But, in his crossexamination, he stated that he visited the said house in October, 2003. He further stated that after 2003, there was no meeting between him and the plaintiff. It is pertinent to note that PW2 had visited the house of plaintiff/the impugned gali in the capacity of a property dealer as the plaintiff had showed desire to sell his house. But, surprisingly, the plaintiff had not mentioned in his plaint that he had wished to sell his house, but he could not do the same due to raising of construction/encroachment over the gali by D1 and D3. Since this was an Suit No. 315/09/03 Bharat Singh v. MCD & Anr. 8 of 17 important aspect related to the present case, the plaintiff must have revealed the same in his plaint itself. Surprisingly, the present case had been filed in year 2003 and the plaintiff had a desire to sell his house in that year itself, but it has not been explained by the plaintiff as to whether he made any effort to sell his house after 2003, as well, till this year i.e. year 2015. In these circumstances, the testimony of PW2 does not inspire confidence.
14. D3 has examined 3 witnesses to dispute the case of the plaintiff on the present aspect. D3W1 is D3, D3W2 is cousin of D3 and D3W3 is neighbour of plaintiff. It is pertinent to note that D3W3 admitted during his crossexamination that plaintiff was his relative. He categorically submitted that the impugned construction was an old construction. It is not the case of plaintiff that although D3W3 was his relative, but he (witness) was having enmity against him (plaintiff) and due to the same, he deposed against the plaintiff.
15.D3 had brought an important aspect related to the present issue on record.
He stated in his written statement that electric pole was affixed by the Government in the year 1960, even at that time, the impugned construction was in existence. In the replication filed on behalf of the plaintiff, it was stated that so far electric pole existed in the road is concerned, the same was affixed by DESU in the middle of road as there was a turn at 90º of gali and the officials of DESU affixed the same with object to safeguard the chajja/balcony of house of residents. The said submission of plaintiff that Suit No. 315/09/03 Bharat Singh v. MCD & Anr. 9 of 17 the electric pole had been affixed in the middle of road does not appear to be tenable. The plaintiff has not examined any official from the concerned department to prove his such submission. Moreover, the plaintiff did not put his such stand to the witnesses of D3 during their crossexamination. Rather during crossexamination of D3W1, a suggestion was put to him that there was support earlier to the pole adjacent near his (witness) house till the overhead wires were replaced by overhead cables. Further, the electric pole was earlier fixed in the gali with a distance from his house as the support to pole was required for electrification. Further, the said support was removed by NDPL as the same was not required and thereafter, he covered the portion lying in front of house of the plaintiff. Hence, the stand of the plaintiff taken during crossexamination of D3W1 is different from his stand mentioned in replication. D3W2 has also stated that since he had not seen any support, so he could not say that said support was removed by the electricity department. Hence, plaintiff could not bring anything on record during the crossexamination of defence witnesses examined on behalf of D3 to establish that the electricity pole had been installed in the middle of the impugned gali and D3 had encroached upon the gali using the area between boundary wall of the house of the plaintiff and the said electricity pole.
16.Further, from the report of D2/MCD Ex. D2W1/3, it is not clear as to whether there was any encroachment done in the impugned gali by D3 and even if, the answer to the above question is in affirmative, then what was the Suit No. 315/09/03 Bharat Singh v. MCD & Anr. 10 of 17 extent of alleged encroachment. It is pertinent to note that in the status report dated 05.01.2006 filed on behalf of D2, it has been stated that during the inspection, it had been noticed that there was an encroachment in the shape of pukka room at the end of the street. The encroached portion was quite old and occupied. Further, a report had also been filed on behalf of Patwari dated 11.09.09 interalia stating that it did not appear that encroachment had been done at the impugned site. The above said two reports have not been tendered in the evidence. But, considering the report of Patwari dated 11.09.09, it appears that D2/MCD had no corroborative evidence to show that there was, in fact, an encroachment in the impugned gali. In these circumstances, the submission on behalf of D2/MCD through its witness D2W1 that there was an encroachment in the shape of Pukka room at the end of the street does not inspire confidence. Considering the above said observations, it is made out that plaintiff has not been able to prove that D3 had raised construction after encroaching upon the impugned gali on or around 15.12.2003.
17. Counsel for plaintiff has argued that D3 had raised construction over first floor of the said room. But, counsel for D3 has contended that plaintiff did not raise the said aspect either in his original plaint or in his amended plaint. It is only in the evidence affidavit of PW1/Plaintiff, the plaintiff had brought new facts on record that during pendency of present suit, D1 and D3 constructed room at first floor on the suit construction.
Suit No. 315/09/03 Bharat Singh v. MCD & Anr. 11 of 17
18. The plaintiff in his original plaint stated that D1 extended the threat that he would construct first floor on the suit construction. During trial of the present case, the plaintiff filed amended plaint on 22.10.08. In the amended plaint too, the plaintiff made similar version except making submission that D1 and D3 extended threat to construct the first floor. This leads to infer that the first floor must not have been constructed by 22.10.08, when the amended plaint was filed by the plaintiff. Even otherwise, in his evidence affidavit Ex. PW1/A too, the plaintiff did not provide clarification as to when, specifically, first floor was constructed by D1 and D3. Moreover, even if it is accepted for the sake of arguments that first floor had been constructed by D1 and D3 during pendency of the present suit, it has not been explained by plaintiff as to why he did not ask the Court to restrain D1 and D3 from raising construction at first floor and why he did not produce any photograph showing construction activities carried out by D1 and D3 at first floor. Further, the plaintiff did not examine either his previous tenant Sh. Rajinder or his subsequent tenant Sh. Rakesh to depose that first floor was not in existence at the time of filing of the present suit or in other words, first floor had been constructed by D1 and D3 after filing of the present suit. The plaintiff could not bring anything on record to support his contention, on this aspect, during cross examination of defence witnesses of D3 as well.
19.So far as the stand of D2/MCD on this aspect is concerned, D2W1 has stated that during inspection, it was found that some construction activities Suit No. 315/09/03 Bharat Singh v. MCD & Anr. 12 of 17 were carried out by the owner/occupier of the suit property over the encroached portion. But, during his cross examination, D2W1 deposed that when he inspected the suit property, there was no construction at first floor of the same. Moreover, D2W1 in his evidence has not explained as to what sort of construction activities had been carried out by D1 and D3. Furthermore, two photographs Ex. D2W1/1 and Ex. D2W1/2 had been filed on behalf of D2 alongwith its report dated 05.01.2006. The said photographs do not show or lead to infer that first floor had been newly constructed. In these circumstances, the plaintiff has failed to bring appropriate evidence on record to show that D3 had raised construction over first floor of the impugned construction during pendency of the present suit.
20.Since the plaintiff has failed to prove that D3 had raised construction in the form of Pukka room or at first floor of the said room after encroaching upon the impugned gali, hence, he is not entitled to decree of permanent injunction or mandatory injunction as prayed by him. Accordingly, issues no. 1 and 2 are decided against the plaintiff.
21. Issue no. 3:
The onus to prove this issue was upon defendant no. 2. It did not lead any evidence on this aspect. Even then, the Court proceeds to decide this issue on merits. Section 478 (1) of the Delhi Municipal Corporation Act, 1957 bars filing of suit against Corporation in respect of any act done in Suit No. 315/09/03 Bharat Singh v. MCD & Anr. 13 of 17 pursuance of the Act etc. until expiration of two months after notice in writing has been left at the municipal office. It is trite law that act includes omission. Applying this analogy in the present circumstances, it can be assumed that if MCD has not taken any action against any unauthorized construction raised within its jurisdiction, then notice shall be given to it by person intending to institute suit against it challenging its omission. But it is pertinent to note that Section 478 (3) of DMC Act provides that '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.' It is natural that when any person is raising unauthorized construction, then a period of two months notice to MCD would defeat the very object of relief sought against unauthorized construction. In the present case, the plaintiff has prayed for mandatory injunction directing defendant no. 2/MCD to demolish encroachment carried out by D1 and D3. Although the plaintiff has failed to prove that the impugned construction had been raised on or around 15.12.2003 providing cause of action to him to file the present suit. Yet, keeping in view the pleadings/plaint of plaintiff, the filing of present suit can not be held barred by Section 478 of DMC Act. Similarly, the present suit has not been filed challenging any action done or intended to be done under DMC Act. Rather, the plaintiff has asked for action to be taken in accordance with applicable Act/rule/regulation/byelaw made thereunder.
Hence, this suit is not barred by Section 477 of DMC Act. This issue is decided in favour of the plaintiff.
Suit No. 315/09/03 Bharat Singh v. MCD & Anr. 14 of 17
22.Issue no. 4:
The onus to prove this issue was upon D1 and D3. It is pertinent to note that during the cross examination of defence witnesses of D3, they had deposed in the manner that house of D3 and of plaintiff are adjacent to each other. If neighbour of any person tries to encroach upon the gali existing in front of house of that person, then he can come to the Court praying for restraining the said neighbour from making such encroachment and to demolish the said encroachment, if the same has already been done. Hence, it cannot be said that plaintiff had no locusstandi to file this case. Accordingly, this issue is decided against D3.
23. Issue no. 5:
The onus to prove this issue was upon D1 and D3. While deciding the issues no. 1 and 2, it has been observed that plaintiff has failed to prove that D3 had raised construction in the form of Pukka room after having encroached upon the impugned gali on or around 15.12.03. In these circumstances, it can be said that plaintiff had no cause of action to file the present suit. Further, the plaintiff did not incorporate the alleged fact of raising unauthorized construction over first floor of the impugned construction in his amended plaint. Hence, this aspect cannot be taken into consideration while deciding the present issue. Accordingly, issue no. 5 is decided against the plaintiff.
Suit No. 315/09/03 Bharat Singh v. MCD & Anr. 15 of 17
24.Issue no. 6:
The onus to prove this issue was upon D1 and D3. But, D3 has failed to bring any cogent evidence on record to show that in what manner, the present suit had not been properly valued for the purpose of court fees and jurisdiction. Moreover, it is pertinent to note that plaintiff has filed the present suit praying for decree of permanent and mandatory injunction. Considering the relief sought by plaintiff, it cannot be said that the present suit had not been properly valued. Issue no. 6 is decided against D3 and in favour of plaintiff.
25.Issue no. 7:
The onus to prove this issue was upon D1 and D3. Section 133 Cr.P.C. provides a remedy that a District Magistrate or a Subdivisional Magistrate or any other Executive Magistrate may make a conditional order requiring the person causing obstruction or nuisance at any public place etc. to remove such obstruction or nuisance. But, it is pertinent to note that Section 137 (2) Cr.P.C. provides that if the alleged wrongdoer denies the existence of any public right in respect of the way etc. and the Magistrate finds that there is any reliable evidence in support of such denial, he shall stay proceedings until the matter of the existence of such right has been decided by a competent Court. In the present case, D3 himself has disputed existence of public right over the area where the the impugned room had been constructed by him. In these circumstances, D3 cannot be allowed to raise Suit No. 315/09/03 Bharat Singh v. MCD & Anr. 16 of 17 objection that the suit is barred under Section 133 Cr.P.C. as even if plaintiff had initiated the proceedings under the said provision, in case of denial of public right over the impugned area by D3, the concerned Magistrate would have stayed further proceedings until the issue of existence of public right has been decided by a competent Court. Accordingly, issue no. 7 is decided against D3.
26.Relief:
The suit of plaintiff is dismissed. Decree sheet be prepared accordingly. The parties shall bear their own costs.
File be consigned to Record Room.
Announced in the open Court (Naveen Gupta)
th
on day of 25 February, 2015 Additional Senior Civil Judge cum Judge, Small Causes Court cum Guardian Judge, NorthWest District, Rohini, Delhi.
Suit No. 315/09/03 Bharat Singh v. MCD & Anr. 17 of 17