Delhi District Court
Sh.Raj Singh Chauhan vs Municipal Corporation Of Delhi on 27 September, 2010
IN THE COURT OF SH. SANJEEV JAIN
ADDITIONAL DISTRICT JUDGE9 (Central): DELHI
RCA No.38/06
ID No.02401C0809172006
Sh.Raj Singh Chauhan
son of late Bhanwar Singh Chauhan
r/o H.No.8, Vill.Dhaka, Main Road,
Kingsway Camp, Delhi.
... Appellant.
Vs.
1.Municipal Corporation of Delhi
Town Hall, Chandni Chowk,
Delhi
through its commissioner.
2.Municipal Corporation of Delhi
Vikas Kutir, Tilak Bridge,
IP Estate, New Delhi
Through its Addl.Commissioner (Slum)
... Respondents.
Date of filing of institutions : 07.09.06
Final Arguments heard on : 06.09.10
Date of decision : 27.09.10
JUDGMENT
1 Civil appeal has been preferred by appellant under section 96 of Code of Civil Procedure against judgment dt.28.7.06 passed by the court of RCA No.38/06 1 Ld.Civil Judge, Delhi in civil suit no.1000/06.
2 Appellant, Sh. Raj Singh Chauhan filed a suit against respondent/MCD for mandatory injunction and for claim of damages towards compensation of Rs.40,000/. The dispute is pertaining to the construction of a public toilet complex constructed by respondent which is adjoining to the plot owned by the appellant. As per appellant, the five ventilators of public toilet complex are opened towards his plot which created a nuisance and diminish the value of the plot.
3 In plaint, it was alleged that plaintiff/appellant is the owner and in possession of a plot of land bearing no.3/13 (old/khasra) with an old tree situated within abadi area of Village Dhaka near Kingsway Camp, Delhi (hereinafter referred as"plot" in shot). Respondent/MCD has recently constructed 20seater toilet complex adjoining to the plot without inviting any objections from the persons concerned or without publishing or serving any notice for the public. Five ventilators had been constructed in the toilet complex which are towards the plot of the appellant. Appellant raised strong objections against the unplanned construction of toilet complex. As per appellant, the construction of toilet complex created a serious nuisance to the appellant and his family members and has decreased the value and utility of his plot to the extent of 30 % to 50%. Appellant prayed for the mandatory injunction against respondent/MCD to close five ventilators and claimed Rs.40,000/ as damages/compensation with pendentlite and future interest @ 18% per annum.
RCA No.38/06 2 3 Defendant no.1 was deleted from the array of parties by Ld.Trial Court. Defendant no.2 (respondent in the appeal) filed written statement. Respondent alleged that there was a toilet complex already in existence at the same site. After demolishing the old toilet complex, the new was constructed to provide better facility to the public at large. In written statement, it was alleged that mandatory notice under sec.478 of DMC Act was not served and no cause of action ever existed in favour of the plaintiff. However the construction of toilet complex with five ventilators towards the plot of appellant is not in dispute. 4 In replication, the material contents of the written statement were denied by the present appellant. For the first time it was admitted that there an old toilet complex in existence prior to the construction of new toilet complex at the same site. In replication, it was also stated that the old complex was located about 5 ft. away from the southern wall of the plaintiff's plot and having no ventilators/opening towards his plot.
5 On the basis of pleadings and material on record, Ld.Trial Court framed following issues.
1. Whether the plaintiff is entitled to the relief of mandatory injunction as claimed?(OPP)
2. Whether the plaintiff is entitled to damages towards compensation of Rs.40,000/ from the defendant?(OPP)
3. Relief.
6 In order to prove its case, appellant Sh.Raj Singh Chauhan appeared RCA No.38/06 3 as PW1. PW2 Sh.Ran Singh was also examined to support his case. Both the witnesses supported the material averments of the appellant's case and proved the relevant documents which includes site plan of plot no.Khasra no.3/13 Ex.PW1/A, Surviving members certificate, Ex.PW1/A1, partition deed in Urdu and English Ex.PW1/A2 and A3, report of registered Architect Mr.R.S.Yadav Ex.PW1/C, reply to notice, by Ministry of Environment and Forests, CGO Complex Lodi Road, New Delhi in response of notice dt.5.3.02 by the appellant Ex.PW1/D, letter no. J12022/5/2001NRCDII dt.19.03.03 Ex.PW1/E, site photograph taken on 2.2.02 of the toilet complex Ex.PW1/F, notice send to MCD dt.5.3.02 along with registration slip and AD card Ex.PW1/G and H, Medical certificate of the appellant Ex.PW1/I and report published in daily times of India on 11.6.02 Ex.PW1/J. 7 Respondent examined DW 1 Sh.J.P.Paliwal, who supported the case of the defendant and proved the following documents which includes photograph of the suit site Ex.DW1/1 to DW1/3, photo negatives of old lavatory Ex.DW1/4 to
6. 8 Ld.Trial Judge dismissed the suit mainly with following findings.
a) That plaintiff has concealed the fact that old toilet complex was already in existence at the same place and therefore, this ground is sufficient to disentitle the plaintiff from the discretionary relief of injunction.
b) That MCD is under a duty to construct public utilities and same are to be constructed in residential areas which will be adjacent to some bodies plot. In case the ventilators are closed, it will lead to all the more unhygienic conditions RCA No.38/06 4 which will be greater nuisance and result in more foul smell.
c) That plaintiff is not residing in the residential plot and therefore, he can not claim that any nuisance has been created to him and his family members or the utility of his plots has been decreased.
9 Ld.counsel for appellant stressed on following grounds.
a) That judgment is passed on the surmises and conjectures and has been passed contrary to the facts and law.
b) That building byelaws do not permit any body to open window, door or ventilator towards the property of others.
c) That appellant has a legal right to protect his property from any misuse or nuisance but Ld.Trial Court failed to appreciate the contention.
d) That appellant has not concealed any fact and he clearly stated in the replication about the existence of old toilet complex.
e) Despite the fact that appellant has proved his case, Ld.Trial court dismissed the suit which is contrary to the law.
10 Ld.counsel for respondent controverted the submissions mainly on the grounds:
a) That Ld.Trial Court has rightly concluded the issues after appreciating the evidence and material on record.
b) That rule 6.4.1 of Delhi Building ByeLaws provides that no notice or building permit is necessary for certain alterations.
In (d) of rule 6.4.1 of Delhi Building Byelaws, it has been provided that, RCA No.38/06 5 "Opening and closing windows, ventilators and doors not opening towards other's property".
Ld.counsel for respondent contended that sub clause (d) of rule 6.4.1 of Building Bye Laws has been misinterpreted by appellant.
c) That plaintiff was under a duty to disclose the true facts in the plaint. There was no whisper in the entire plaint about the existence of old toilet complex at the same place. In replication the existence of old toilet complex was admitted for the first time which does not save the appellant from the allegations of concealment of material facts.
d) That toilet complex has been constructed with all modern facility for the benefit of public. It is a flush system it does not crate any foul smell. Otherwise also, in residential areas toilets are being constructed in individual houses which falls in the near vicinity of others house. There is no legal bar to construct a toilet or toilet complex.
e) Appellant has not placed any provision of law before the court to show the action of respondent as illegal.
11 I have carefully considered the trial court record including the pleadings, testimony of witnesses and documents proved on record. I have also given my considered thought to the contentions advanced at bar and the written submissions filed by parties.
12 It is admitted fact that new toilet complex has been constructed by MCD as public utility at the place of old complex which falls in the near vicinity of the plot owned by appellant. It is also admitted fact that five ventilators of the RCA No.38/06 6 toilet complex are towards the southern side of the plot of the appellant. 13 Ld.Trial court held that plaintiff has not approached the court with clean hands as he has not disclosed the existence of old toilet complex in his plaint. No doubt that parties are bound to disclose all material facts at the first instance. The case of the appellant is that toilet complex has been constructed with five ventilators which are just adjacent to his plot. His case is that the new toilet complex is not in the same position and there was no ventilators towards his plot in the old complex. His further case is that there was a 5 ft. gap between the old toilet complex and his plot. In this situation, it can not be held that plaintiff has not approached the court with clean hands. A party may be held guilty for suppressing the material facts and not approaching the court with clean hands, if a material fact has been deliberately concealed. The existence of old toilet complex was a known fact for both the parties and the public at large. Therefore, this fact could not have been suppressed by the plaintiff or anybody else. In the circumstances of the case, the way the plaint has been drafted, it can not be said that plaintiff was going to be benefited by not mentioning about the existence of old toilet complex. There could have been no motive or intention for not disclosing the fact pertaining to the old complex. In my view, the findings of Ld.Trial court is not justified that plaintiff has not approached the court with clean hands.
14 The words "not opening towards other's property" in rule 6.4.1 of Byelaws are significant. Does this phrase means that nobody can open a door, window and ventilators towards the public street or public road or in his own plot, RCA No.38/06 7 where there is a reasonable open space between the two adjoining plots? It is a matter of common knowledge that in urban residential areas, there is a scarecity of land. For better town planning, Building ByeLaws has been legislated. Keeping in view the respective rights of the adjoining owners of residential plots, certain building bye laws has been made, so that the respective rights may be determined. In my opinion, the phrase "not opening towards other's property" is applicable only in those situations, where there are adjoining properties having a common wall/boundaries. In other words no one is permitted to open a window or ventilators, if there is a common wall between the two properties. The bar is not applicable, if the door, ventilators or windows is being opened towards the public street or road or in its own plot by providing a open space between the window/door/ventilator and the property of other persons. 15 Trial court record depicts that it was shown in the site plan filed by plaintiff that the five ventilators in the toilet complex are just adjacent to his plots. In site plan no passage, street or gap has been shown between the toilet complex and appellant's plot. On this aspect, the plaintiff was not controverted during cross examination. Careful perusal of written statement also reveals that no where it has been stated that there is any gap between the five ventilators of toilet complex and the appellant's plot. It is nobodies case that ventilators are being opened in public street, road or in open space. DW1 in his cross examination stated that he had no knowledge whether the lavatory block is adjacent to the property of plaintiff/appellant. Therefore, neither in written statement nor in testimony of DWS, it has been asserted that ventilators are being opened in public street or open space which supports the case of the RCA No.38/06 8 appellant that ventilators are just adjacent to his plot. Therefore, appellant is correct in saying that in accordance with rule 6.4.1 of Delhi Building ByeLaws, ventilators, could not have been opened towards his plot. 16 No doubt that Civil Authority like MCD is under a duty to provide public facilities. But at the same time, public facilities can not be provided at the cost comfort and legal rights of other citizens in a manner which is injurious and detrimental to the life and liberty of others. After careful consideration, I failed to agree with the findings of Ld.Civil Judge that public utility has to be created which will be in residential area and adjacent to residential property of one or other. Everybody including the public authorities are bound to act in accordance with law. Ld.Trial court was not correct in concluding that as appellant and his family members are not residing in the premises and they can not allege any nuisance. Everybody has a right to enjoy his property in accordance with the law. The owner of a vacant plot can not be denied his legal right. Legal reasoning has to satisfy the essential elements of reasonableness, fairness and the legal requirements. The reasoning given by Ld.Trial Judge is not sustainable. I am of the considered view that plaintiff is entitled for the mandatory injunction as prayed for.
17 On the question of damages/compensation, I agree with the findings of Ld.Trial Judge because of the reason that it was for the appellant/plaintiff to establish his claim for damages/compensation. Nothing was established before the Ld.Trial court that how the damages to the tune of Rs.40,000/ has been assessed. Otherwise also it is a vacant plot, where appellant and his family RCA No.38/06 9 members are not residing so far. Once, the ventilators of the toilet complex are being closed, the nuisance will stop and there will be no loss or damages to the appellant in respect of the enjoyment or the value of the property. 18 In view of the above findings, the impugned judgment dt.28.07.06 is partly set aside/modified. Accordingly, the suit is decreed in favour of appellant/plaintiff and against defendant/respondent/MCD and thereby respondent/MCD is directed by way of mandatory injunction to close the five ventilators constructed in public toilet complex falling towards the plot of appellant/plaintiff within a period of two months. However, the findings of Ld.Trial court in respect of the dismissal of claim of damages/compensation is up held. Fresh decree sheet be prepared by the Reader of this court. Copy of the order be sent to Ld.Trial court along with the trial court record. Appeal file be consigned to R/R after due compliance.
(SANJEEV JAIN) ADDITIONAL DISTRICT JUDGE9, (Central District), Delhi Announced in the Open Court Today : 27.09.10.
RCA No.38/06 10