Delhi District Court
Vide This Order vs . on 27 January, 2014
IN THE COURT OF MS.RIYA GUHA :
CIVIL JUDGE13(CENTRAL) : DELHI
Suit No.143/2013
Sh.Madan Lal Dawar
Vs.
Sh. Vipin Sharma & Ors.
27.01.2014
Present : None
1.Vide this order, I shall dispose off the injunction application filed by the plaintiff. Reply has been filed by both the defendants and arguments have been advanced by the parties at length.
2. This is a suit for declaration of easementary rights of ventilation, light and air with respect to the left hand side of the premises no.8111, which forms part of the composite plot no. 810981108111, Khariya Mohalla, Roshan Ara Road, Delhi and consequential injunctions. The plaintiff has sought the interim prayers that the defendants be restrained from raising or permitting any construction, or further construction to be raised, on the suit premises till the pendency of the present suit. The plaintiff's case is that he and his family are the permanent residents of H.No. 81098110, Kharia Mohalla, Roshanara Road, Delhi. It is further submitted that the defendants are the occupiers of the premises no. 810981108111 (left hand side), Kharia Mohalla, Roshnara Road, Delhi, and these premises are situated adjacent to the above mentioned premises of the plaintiff which are at the right hand side.
3. It is further stated that the defendants are now engaged Madan Lal Dawar Vs. Vipin Sharma Suit No.143/2013 Page No.1 of 9 in redeveloping and raising fresh construction over the premises under their possession and are raising fresh construction from the ground floor upwards. In pursuance to the same, the defendants have illegally covered a window of the house of the plaintiff partially by installing steel rods which shall subsequently be filled with concrete. The plaintiff has filed the photographs reflecting such construction. It is submitted that the coverage of the said window which is marked as W1 and W2 in the site plan, shall diminish or completely extinguish the easementary rights of the plaintiff for the natural right and ventilation. It is further submitted that the defendants are using poor quality construction material and are erecting unstable and hazardous structure which shall pose a great risk to the life and property of the whereabouts.
4. It is further submitted that the plaintiff approached the MCD with its oral & written complaints and also went to the local police, however, all his efforts were in vain and they did not listen to the grievances of the plaintiff. Thereafter, the plaintiff instituted a suit no.787/2013 in the Court of Dr.Rakesh Kumar, Civil Judge, Delhi seeking injunctions against the defendants to restrain them from constructing except in accordance to a sanction building plan. It is further submitted that during the proceedings of this above mentioned suit, the defendants as well as the NDMC revealed that a building plan had been sanctioned to the defendants, and since the reliefs sought in suit no.787/2013 were satisfied, the plaintiff had withdrawn the said suit on 28.11.2013. However, it is submitted that immediately after withdrawal of the suit no.787/2013, the defendants had began to raise construction over their plot in such a manner so as to obstruct a window of the house of the plaintiff situated at northwestern side. It is submitted that such act of the Madan Lal Dawar Vs. Vipin Sharma Suit No.143/2013 Page No.2 of 9 defendants violates the easementary rights that the plaintiff has of natural light, air, ventilation, which has been enjoyed by him for the past more than 50 years.
5. It is further submitted that the sanction plan in favour of the defendants was available to the plaintiff only on 06.11.2013, when the NDMC had filed its written statement in the suit no. 787/2013. It is further submitted that the sanction plan of the MCD has been obtained by the defendants by concealing the relative position of the windows in the plaintiff's building.
6. It is further stated by the plaintiff that the property no. 810981108111 was earlier a composite single unit purchased by the father of the plaintiff from the Ministry of Rehabilitation. Subsequently, the father of the defendants had instituted a suit for partition, which was decreed in appeal in favour of the father of the defendants and half the portion of 81098110 fell to the share of the defendants. However, much before the said partition was decreed, the plaintiff and his father had constructed the house which is existing at right hand side of the composite plot 810981108111, and have been enjoying the easement of air and light opening towards the LHS. It is submitted that had the defendants made the mention of such circumstances with their application for approval of building plan, the NDMC would not have approved or granted the sanction plan. It is further submitted that the perusal of the sanction plan would reveal that the relevant side of the adjacent plot of the plaintiff has been shown as if it were a solid wall instead of an articulated structure having preexisting windows and other openings.
7. In view of the above submissions, the plaintiff seeks that the defendants be restrained from raising any construction on Madan Lal Dawar Vs. Vipin Sharma Suit No.143/2013 Page No.3 of 9 the left hand side of 810981108111, Kharia Mohalla, Roshnara Road, Delhi till the pendency of the present suit.
8. On the other hand, the counsel of defendants has argued that the present suit of the plaintiff is not maintainable as the plaintiff has not challenged the sanction plan granted in favour of defendant no.1. It is further submitted that the suit suffers from the defect of nonimpleadment of the necessary party i.e. North Delhi Municipal Corporation. It is also argued that the suit of the plaintiff is barred by resjudicata, order 2 rule 2 CPC as well as Order 23 rule 1 CPC as the plaintiff had already filed a suit on the same facts by the Court of Dr.Rakesh Kumar, and had consequently withdrawn the same on 28.11.2013.
9. On merits, it is argued by the defendants' counsel that the defendant no.1 is the owner of the share which comes in the divided plot having municipal no.81098110, as the defendant no.2 and other legal heirs have relinquished their rights in the said property in favour of the defendant no.1. It is submitted that the defendant no.1 is raising constructions over his own plot as per the sanction plan granted to him. It is further submitted that no window of the plaintiff's house has been covered by the defendant as no such window exists. It is strenuously argued by the defendants counsel that even otherwise the Delhi Building ByeLaws of 1983 and the Master Plan 2021 (particularly clause VI) does not allow opening of window or ventilation in the property of another. The defendants have also denied the correctness of the photographs filed by the plaintiff and have denied that poor quality construction material is being used by them.
10. It is further submitted by the defendants that the plaintiff had withdrawn his earlier suit bearing no.787/2013 as he Madan Lal Dawar Vs. Vipin Sharma Suit No.143/2013 Page No.4 of 9 had no cause of action in his favour, and has now filed the present suit to pressurize the defendants to concede to his illegal demands.
11. In support of his case, the plaintiff has filed the documents : site plan showing the windows in question as W1 & W2, police complaint dt.13.05.2011, copy of sanction plan granted to the defendants, photographs and copy of RTI application dt.14.08.2013 sent to the Building Department, NDMC, RTI response dt. 16.09.2013, statements of the parties recorded during proceedings under Section 107/150 Cr.P.C., letter dt.26.09.2011 sent by the plaintiff to the SEM, North District, complaint dt.16.05.2011 sent by the plaintiff to the MCD, complaint dt.25.06.2011 sent by wife of defendant no.1 to the SHO Subji Mandi, complaint dt.02.09.2011 sent by defendant no.1 to the SEM, letter dt.22.07.2011 sent by the MCD to the defendant no.1 etc.
12. On the other hand, the defendants have filed copy of plaint of the suit bearing no.787/2013, copy of statement and order dt.28.11.2013 recorded in suit no.787/2013, copy of sanction plan in favour of defendant no.1 alongwith letter of NDMC dt.19.02.2013, inspection report dt.11.11.2013 of the JE of the constructions undertaken by the defendant no.1, mutation dt.02.11.2012 in favour of the defendant no.1, relinquishment deed dt.01.05.1998 etc.
13. The plaintiff's counsel has further orally argued that the RTI query dated 14082013 shows the bonafides of the plaintiff to keep his right of easement intact. He further submits that in the building sanction plan in favour of the defendant no.1, the frontal elevation does not show any solid wall and there is no top to bottom division of the solid wall and hence the sanction plan is not the correct reflection of the actual position at site. He further submits that the windows in question are existing since last 1971, that is Madan Lal Dawar Vs. Vipin Sharma Suit No.143/2013 Page No.5 of 9 much before the building byelaws of 1983 came in existence. He further submits that even after the coming of the byelaws in 1983, the defendants have not taken any steps to get the windows of the plaintiff removed or closed by way of any civil suit. Hence, it is submitted by the plaintiff that he has a primafacie case in his favour for entitling him to temporary adinterim injunction in his favour. It is further submitted that disallowing his application will completely nonsuit him as it will lead to developments which cannot be undone.
14. On the other hand, the defendants' counsel has strenuously argued that before seeking any easementary rights or injunctions, the plaintiff must challenge the building sanction plan which has been duly granted in favour of the defendant no.1. He also relies on section 332, 333 and 338 of the Delhi Municipal Corporation Act, 1957. The counsel for defendants also submitted that the plaintiff has failed to show equities in his favour as no sanction plan of his own building has been produced by him. He further pleads that instead the defendants will be thrown in severe inconvenience if the construction over their plot is stalled. He further submits that he has specifically denied the existance of windows in question and that the defendant has the right to take alternative pleas. He further submits that the plaintiff has failed to show equity in his favour as he has not filed any approved sanction plan of his own building.
15. Heard & perused the record.
16. At the outset it is made clear that at this stage, the Court is concerned only with the disposal of the injunction applcation, hence, it will not go into the question of constructive resjudicata, bar under order 2 rule 2 CPC as well as bar under Order 23 rule 1 Madan Lal Dawar Vs. Vipin Sharma Suit No.143/2013 Page No.6 of 9 CPC.
17. The relevant provisions cited by the defendants counsel of the DMC Act is reproduced below for quick reference :
"332 Prohibition of building without sanction :
No person shall erect or commence to erect any building, or execute any of the works specified in section 334 except with the previous sanction of the Commissioner, not otherwise than in accordance with the provisions of this Chapter and of the byelaws made under this Act in relation to the erection of buildings or execution of works.
333 Erection of building - (1) Every person who intends to erect a building shall apply for sanction by giving notice in writing of his intention to the Commissioner in such form and containing such information as may be prescribed by byelaws made in this behalf.
(2) Every such notice shall be accompanied by such documents and plans as may be so prescribed.
338 Sanction accorded under mis representation - If at any time after the sanction of any building or work has been accorded, the Commissioner is satisfied that such sanction was accorded in consequence of any material misrepresentation or fraudulent statement contained in the notice given or information further under sections 333, 334 & 335 he may by order in writing cancel for reasons to be recorded such sanction and any building or work commenced erected or done shall be deemed to have been commenced, erected or done without such sanction :
Provided that before making any such order the Commissioner shall give reasonable opportunity to the person affected as to why such order should not be made."
18. As it can be seen that even if assuming the plaintiff's submission that the windows in question were in existence prior to the coming of building byelaws of 1983, but the DMC Act was in existence since the year 1957. It is clearly laid down in Section 332 Madan Lal Dawar Vs. Vipin Sharma Suit No.143/2013 Page No.7 of 9 that no construction of any building is allowed except with the previous sanction of the concerned authority. In this case, the plaintiff has not shown any sanction plan of his own building. On the other hand, the defendants have sufficiently shown that they had obtained a duly approved site plan from the MCD. Also perusal of Section 338 of DMC Act, 1957 shows that a sanction obtained under misrepresentation or concealment is liable to be cancelled.
Meaning thereby that the plaintiff has an alternative and effective recourse for remedying his grievances against the sanction plan. Even though the plaintiff has not directly challenged the sanction plan in the present suit, but the Court has to see whether the equities lie in favour of plaintiff or not.
19. It is not the plaintiff's case that the adjacent plot of the plaintiff was any vacant plot. Infact, in para no.3 of the plaint it is mentioned that the defendants have undertaken redevelopment of their plot after demolishing the previously existing construction. Meaning thereby that some kind of construction was already existing at the adjacent plot of the defendants and it was not a vacant plot.
20. Hence, the court is of the opinion that the plaintiff has failed to show primafacie case in his favour as he has failed to show any sanction plan of his own building. As regards irreparable loss, from the perusal of the photographs annexed by the plaintiff, the same reflects that only the ground floor windows of the bathroom shown as W1 & W2 are alleged to have been obstructed by the attempted construction of the defendants, and which can be seen from the photographs. Only these two windows are alleged to be obstructed while on the other hand allowing the application will stall the construction of the plot of the defendants, for possibly Madan Lal Dawar Vs. Vipin Sharma Suit No.143/2013 Page No.8 of 9 many years to come. Hence, the criterias of balance of convenience and irreparable loss are tilted more heavily in favour of the defendants.
20. In view of the above discussion, the Court finds no merit in the application and same is accordingly dismissed.
21. Put up for framing of issues on 17.02.2014.
Announced in the Open Court [RIYA GUHA]
Today on 27.01.2014 CIVIL JUDGE13(Central)
DELHI
Madan Lal Dawar Vs. Vipin Sharma Suit No.143/2013 Page No.9 of 9