Delhi District Court
Smt. Manju Devi vs South Delhi Municipal Corporation on 6 March, 2017
IN THE COURT OF GAURAV RAO, SENIOR CIVIL JUDGE
CUM RENT CONTROLLER ( SOUTH EAST), DISTRICT
COURTS, SAKET, NEW DELHI
CS No: 51342/2016 (old no. 92/2015)
CNR No.: DLSE030005722015
Smt. Manju Devi
W/o Sh. Mahender Singh
No. A9/E Private Colony Sri Niwas Puri,
Near Bhagat Mandir,
New Delhi - 110065. .....Plaintiff
Versus
1. South Delhi Municipal Corporation
through its Commissioner
Lajpat Nagar, New Delhi.
2. Smt. Dulari Devi
W/o Late Sh. Janki Ram
R/o House No. 7B/11, Private Colony,
Sri Niwar Puri, Near Bhagat Mandir,
New Delhi - 65. ...Defendants
Date of institution of suit : 12.03.2015
Date on which Judgment reserved : 06.03.2017
Date on which judgment pronounced : 06.03.2017
Decision : Dismissed
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J U D G M E N T
1. The present suit for permanent and mandatory injunction
has been filed by the plaintiff against the defendants seeking to restrain
defendant no. 2, her agents, servants, attorneys, representatives etc.
from raising illegal/unauthorized construction in and near the property
bearing no. 7B/11, Private Colony, Sri Niwas Puri, Near Bhagat
Mandir, New Delhi - 65 and from encroaching upon public land/the
passage/gali adjoining the above property (hereinafter referred to as
the suit property & as shown in red colour in the site plan filed along
with the suit) and further to direct defendant no. 1 to remove/demolish
the illegal/unauthorized construction raised in the suit property.
Plaint
2. The case of the plaintiff is that she is a poor lady and
permanent resident at the aforementioned address.
2.1 It is further her case that the construction in the above
property admeasuring about 26 sq. yards had been raised prior to
2005.
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2.2 It is further her case that the suit property (except for the
passage/gali) belongs to defendant no. 2. It is her case that defendant
no. 2 and her sons are criminals and every member of the vicinity is
afraid of them and defendant no. 2 has created terror in the vicinity,
due to criminal acts of her sons.
2.3 It is further her case that defendant no. 2 has encroached
upon the government land measuring about 60 sq. yards, is engaged in
large scale unauthorized construction, has encroached the gali
measuring 6' x 16' feet and has forcibly constructed a room in the street
thereby stopping the public way.
2.4 It is further her case that defendant no. 1 is a statutory
body entrusted with the function of regulating construction activity in
Delhi in addition to other functions and it is its duty to ensure that no
illegal or unauthorized construction is carried out in Delhi without the
sanctioned building/construction plan duly approved by defendant
no. 1.
2.5 It is further her case that it is also the duty of defendant
no. 1 to maintain the land records, carry out of demarcation and
mutation and to ensure that no encroachment is made by any party on
public land and in case any encroachment is found urgent and
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necessary steps are taken to remove such encroachment in proper
coordination with other departments/bodies. It is her case that in the
present case defendant no. 1 has failed to carry out its duties.
2.6 It is further her case that when defendant no. 2 started
encroaching and constructing the suit property number of complaints
were filed by the neighborers including the plaintiff.
2.7 It is further her case that the unauthorized construction as
well as the encroachment on public street which is opposite to her
property has affected ventilation, light and air to her property thereby
affecting the easementary rights. It is further her case that her family is
exposed to danger due to the unchecked and arbitrary construction and
projections adjoining the property of the plaintiff.
2.8 It is further her case that the officials of MCD/defendant
no. 1 are in collusion and connivance with defendant no. 2 and despite
her complaints as well as those of other neighbours the
illegal/unauthorized construction in suit property has not been
demolished.
2.9 It is further her case that the property has been
constructed illegally by using substandard material and has covered
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street and has affected the egress and ingress of the plaintiff to her
property and the problem is further compounded as the construction
material has been dropped on the road by defendant no. 2 in haphazard
manner.
2.10 It is further her case that defendant no. 2 has again placed
some material and is planning to further encroach the government
land. It is further her case that the illegal construction is still going on
which is well within the knowledge of the officials of defendant no. 1,
but instead of taking action against the property, they are hands in
gloves with defendant no. 2.
2.11 Hence, the present suit.
Appearance
3. The defendants appeared in pursuant to service of
summons and filed their respective status report/written statement.
Status Report of defendant no. 1
4. In status report dated 05.06.2015 it was averred that the
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suit property was inspected and the existing structure of suit property
consists of ground floor and erection of columns at first floor.
4.1 It was further averred that the structure was booked U/s
343/344 of the DMC Act 1957 vide File No. 338/B/UC/EE(B)
I/CNZ15 dated 01.04.2015 and demolition notice was issued on
16.04.2015 directing the owner to demolish the alleged unauthorized
structure within six days.
4.2 It was further averred that the owner did not comply with
the demolition notice and as such action is being planned to execute
the demolition order.
Written Statement of defendant no. 2
5. It was pleaded that the plaintiff has not approached the
court with clean hands and has suppressed material facts.
5.1 It was further pleaded that the plaintiff has no locus standi
to file the present suit as she is not the owner nor is she residing in the
property as mentioned in the memo of parties.
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5.2 It was further pleaded that defendant no. 2 filed a writ
petition no. 7254/2014 before the Hon'ble High Court of Delhi for
immediate stay and ultimate demolition of encroachment and
unauthorized construction in property no. TA9, Private Colony,
Sriniwaspuri, New Delhi and in orders dated 27.10.2014 the Hon'ble
High Court of Delhi recorded that SDMC had issued order dated
17.10.2014 of Work Stop issued by Assistant Engineer (Building)
Central Zone to PS Amar Colony, New Delhi.
5.3 It was further pleaded that a show cause notice u/s 343
and 344 (1) of DMC Act, dated 01.04.2015 was received by defendant
no. 2 on 07.04.2015 from the Junior Engineer SDMC of the area as he
and defendant's immediate neighbor Shri. Khajan and Neksaw, who
are plaintiff's relatives, colluded with each other to put defendant no. 2
in fear and danger of wrongful demolition with a view to make
defendant no. 2 to agree to a settlement with Shri. Khajan and Neksaw.
5.4 It was further pleaded that defendant no. 2 met the
Assistant Engineer of area on 8.04.2015 however instead of taking
action against the offenders i.e. Sh. Khajan and Neksaw he threatened
defendant no. 2 with dire consequences.
5.5 It was further pleaded that such attempts on the part of the
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Municipal Officials, and plaintiff's family member Sh. Khajan and
Neksaw, amounts to Contempt of Court and also it has to be explained
in what capacity Assistant Engineer and his department/staff are
allowing the present construction activities, which has been carried out
in the same plot property no. TA9 by Sh Khajan and Neksaw against
which work stop order was passed by Hon'ble High Court of Delhi.
5.6 It was further pleaded that she is an old and poor widow
lady who is being harassed while musclemen/builders are being
facilitated in unauthorized constructions.
5.7 It was further pleaded that the plaintiff is not residing in
that house and neither has she enclosed a single paper which shows her
locus standi in property no. TA9. Even the electricity bill and water
bills are in the name of Mrs. Ramwati Devi.
5.8 It was further pleaded that plaintiff's family members have
political approach and they are harassing her to grab/encroach upon
the gali/street that is specially meant for her and plaintiff has no
connection with the gali. It was further pleaded that the plaintiff has
unauthorizedly encroached the government land on both sides of the
gali and has encroached upon a piece of land which leads to
Sriniwaspuri Bus Stand near Delhi Transport Depot.
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5.9 It was denied that her property is constructed on
government land or public street or that she has raised
illegal/unauthorized construction in her property and it was pleaded
that her house is a single storey house.
5.10 It was denied that she had raised projections in the
property which are posing danger to the life and liberty of the plaintiff
and other neighborers or she has closed the free egress and ingress of
the plaintiff to her property.
Replication
6. Plaintiff filed replication to the written statement/status
report of the defendants wherein she denied the averments of the
written statement while simultaneously reiterating and reaffirming the
contents of the plaint.
ISSUES
7. On the basis of the pleadings of the parties following
issues were framed by the Ld. Predecessor of this court vide order
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dated 21.12.2015:
1. Whether plaintiff is entitled to decree of permanent
injunction as prayed in clause a? OPP
2. Whether plaintiff is entitled to decree of mandatory
injunction as prayed in clause b? OPP
3. Whether the plaintiff has no locus standi to file the present
suit? OPD
4. Relief.
Plaintiff evidence
8. In order to prove her case plaintiff examined herself as
PW1 and deposed on the lines of the plaint. She tendered her evidence
by way of affidavit as Ex. PW1/1 and relied upon the following
documents:
(1) site plan as Ex. PW1/A,
(2) Photographs as Mark C (colly)
(3) copy of complaint as MarkB,
(4) copy of notice served upon the defendant no. 1 as Mark -
A.
8.1 Plaintiff examined also Sh. Ravi as PW2 who tendered
his evidence by way of affidavit as Ex. PW2/A1 and relied upon the
following documents:
(1) letter dated 21.04.2016 as Ex. PW2/A2
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(2) letter dated 22.04.2016 as Ex. PW2/A3.
8.2 Plaintiff examined one more witness Sh. Nanak Chand as
PW3 who tendered his evidence by way of affidavit as Ex. PW3/A
and who relied upon site plan already exhibited as Ex. PW1/A.
Defendant's evidence
9. Defendant no. 1 did not lead any evidence despite due
opportunity.
9.1 Defendant no. 2 examined herself as DW1 and tendered
her evidence by way of affidavit as DW1/A. She relied on documents
i.e. copy of writ No. 7254/2014 and order dated 27.10.2014.
Findings
10. I have heard the Ld. counsel for parties, have given due
consideration to the contentions raised at bar and have carefully gone
through the record. I have also considered the written arguments and
the case laws relied upon by the Ld. Counsel for the plaintiff.
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10.1 All the issues being interlinked are taken up together and
my issue wise finding is as under:
1. Whether plaintiff is entitled to decree of permanent
injunction as prayed in clause a? OPP
2. Whether plaintiff is entitled to decree of mandatory
injunction as prayed in clause b? OPP
3. Whether the plaintiff has no locus standi to file the present
suit? OPD
10.2 In nutshell the grievance of the plaintiff is that defendant
no. 2 has raised illegal and unauthorized construction in the suit
property as shown in red colour and earmarked as B in the site plan
and it is also the plaintiff's allegations that defendant no. 2 has
encroached upon the public land/gali/passage as shown in red colour
and earmarked as A in the site plan. Plaintiff seeks demolition of the
unauthorized construction as well as removal of the encroachment.
10.3 After going through the entire material available on
record I am of the firm opinion that as far as raising of unauthorized
construction is concerned, the plaintiff has successfully established
that defendant no. 2 has indeed raised illegal and unauthorized
construction in the suit property marked as portion A and B in red in
the site plan. During her crossexamination defendant no.2/DW1 made
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the following statement regarding the construction which has been
raised in the suit property:
"It is correct that there is no site plan in respect of my
above property. It is correct that I did not seek any permission from
MCD or any other local authority for constructing the above
property......It is correct that my property has been constructed without
any sanction plan."
10.4 The above statement made by defendant no. 2 is sufficient
proof of the fact that the construction which has been raised in the suit
property is indeed illegal and unauthorized and no further proof is
required. Nonetheless even from the status report filed by SDMC/
defendant no. 1 it stands proved that the construction in the suit
property is illegal and unauthorized and accordingly as averred in the
status report the same was booked vide File no. 338/B/UC/EE(B)
I/CNZ15 dated 01.04.2015 and demolition notice was passed on
16.04.2015. Furthermore PW2 proved a letter dated 21.04.2016 i.e. Ex.
PW2/A2 written by Assistant Engineer, SDMC wherein it has been
categorically mentioned that the unauthorized construction in the suit
property was booked and after following the due process of law
demolition action was taken.
10.5 It was incumbent upon defendant no. 2 to obtain
necessary permission from the local authorities/to obtain necessary
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sanction plan as per building bylaws which she failed to do so and
therefore the construction which has been raised is indeed
unauthorized. Hence it stands sufficiently proved that unauthorized
construction has been raised in/at the suit property.
10.6 Though Ld. Counsel for defendant no. 2 argued that the
construction in the suit property is an old one and in fact almost 40
years old however I find no reasons to agree with him. Nothing on
record could be proved to substantiate the claims that the constructions
is an old one. No photographs, no house tax receipt etc was placed on
record to prove that the construction is an old one. The very fact that
the property was booked by SDMC and subsequently the demolition
notice was issued which was not challenged by defendant no. 2 and
ultimately the property was demolished as reflected in Ex. PW2/A2 is
itself proof of the fact that the construction was/is new and
unauthorized and not an old one as claimed by defendant no. 2. Even
otherwise whether new or old the construction remains illegal unless it
is as per the sanctioned plan and if not is regularized by the local
authorities subsequently.
10.7 It was also the case/allegations of the plaintiff that the suit
property (earmarked as A and B) is a government land and same has
been encroached by defendant no. 2 who has also raised unauthorized
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construction in the same. As far as portion earmarked as B is
concerned at the outset it will be worthwhile to highlight that in the
plaint/petition itself there is enough ambiguity regarding the status of
the said portion. In para 2 of the plaint plaintiff had stated regarding
the said portion as "allegedly belong to defendant no. 2". Furthermore
in site plan Ex. PW1/A plaintiff has herself distinguished the two
portions as "Billegal construction" and "Aencroachment" which
itself proves that her claims regarding portion B being government
land are vague and meritless. Apart from the contrary/inconsistent
stand in the later part of the plaint as against the above averment in the
plaint the plaintiff could not place/prove any material on record to
substantiate the claims that suit property shown in red colour and
earmarked as B is indeed government land. No records from any
department or land owning agency i.e. either DDA, MCD or the SDM
or the revenue records could be proved on record by the plaintiff in
support of her case. Her claims of the said portion (B) being a
government land, which obviously was consistently denied by
defendant no. 2, remained bald and unsubstantiated. Defendant no. 2
claimed her ownership in respect of the said property and during her
crossexamination stated as under:
"I have been residing in my residence since 40 years. I am the owner
of my house. I have ownership documents of my house but I have not
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placed them on record. I can produce the same, if required. It is
wrong to suggest that I am deposing falsely or that I am not the owner
of the above property or that it is government land which I have
encroached upon and raised unauthorized construction in it."
10.8 Plaintiff could not contradict the stand of defendant no. 2
by placing any material on record leave apart any cogent material
contrary to the claims of defendant no. 2. If indeed the plaintiff
doubted the genuineness of the claim of defendant no. 2 nothing
stopped her from seeking a direction to defendant no. 2 for placing the
ownership documents on record as claimed by her. The law is well
settled that the plaintiff's case has to stand on its own legs and in the
case at hand the plaintiff could not prove her claims even remotely.
10.9 In fact it will be worthwhile to highlight that in the plaint
the address of the suit property has been given as 7B/11, Private
Colony, Sriniwaspuri near Bhagat Mandir, New Delhi63 whereas
during the crossexamination the plaintiff stated as "The present case
has been filed against the property bearing no. A9, Private Colony,
Sriniwaspuri, New Delhi." It is not the plaintiff's case that both the
properties are same i.e. are known by two different numbers as above.
This itself renders the suit liable to be dismissed more so when the
plaintiff gave her address in the memo of parties as "A9/E, Private
Colony, Sriniwaspuri near Bhagat Mandir" and during her cross
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examination stated her address and that of defendant no. 2 as
"Presently I am residing at a rented accommodation bearing house no.
B/14, Sriniwaspuri, Private Colony, New Delhi. Defendant no. 2
(Dulari Devi) is residing at B/12, Sriniwaspuri, Private Colony, New
Delhi." In fact at the inception of her crossexamination she gave her
address as "B/13, Private Colony, Sriniwaspuri, Baghel Mandir". In
fact it is PW2 who is residing in property no. A9/E as claimed by him
during his crossexamination. This ambiguity not only takes away the
cause of action, if any, from the plaintiff to a certain extent but also
casts serious doubts upon the demeanor of the witness (plaintiff).
10.10 Same applies for the portion shown in red colour and
earmarked as A in the site plan regarding which the plaintiff had
claimed that the same is a government land/gali/passage. In addition to
the above even the statement made by the plaintiff and her witnesses
are inconsistent with the claim/stand of the plaintiff. Plaintiff (PW1)
herself stated as ".....It is further wrong to suggest that the defendant
no. 2 has forcibly constructed a room on the street and has stopped the
public way........It is correct that where the defendant no. 2 is residing
is a closed street. It is correct that no one is residing after the house
of defendant no. 2."
10.11 The above statement of the plaintiff itself renders her
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claim meritless. Though she had claimed that defendant no. 2 had
encroached upon public passage/gali/street and raised construction
therein but she herself denied the same in her crossexamination.
Though in her plaint as well as in the site plan Ex. PW1/A she had
shown other properties behind portion A however during the cross
examination she admitted that it is a closed street closing at the
property of defendant no. 2 and that there is no house or other property
after the house of defendant no. 2. The statement made by PW1 during
the crossexamination puts to rest the controversy regarding the
unauthorized construction in and encroachment of the gali/passage.
10.12 Though the plaintiff had also claimed that the
unauthorized construction in and encroachment of the gali has
obstructed her egress and ingress into her property however in view of
her above statement and Ex. PW1/A which categorically shows that
the property of the plaintiff is two sided, there are gali on both sides I
find no merits in the claim of the plaintiff. There is enough space for
ingress and egress by the plaintiff to/from her property.
10.13 Apart from PW1 even PW2 and PW3 stated the same
regarding the gali. PW2 stated as under:
"It is correct that in the street the last house is of
defendant no. 2. It is correct that the said street is closed at the door
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of the defendant no. 2."
10.14 PW3 stated as under:
"It is correct that in the gali last house is only of
defendant no. 2. It is correct that the gali is closed at the house of
defendant no. 2."
10.15 Though Ld. Counsel for defendant no. 2 argued that the
plaintiff has no locus to file the present suit however I find no merits in
the arguments of Ld. Counsel for defendant no. 2. As far as the locus
of the plaintiff is concerned the law is well settled that it is the right of
every citizen to see that building bylaws are followed and unauthorized
constructions are not carried out as same causes civic problems for the
entire neighborhood and affects the material rights of the
neighborers/citizens. Unauthorized construction is a menace and in
fact there is a need to curb the evil of unauthorized construction which
is quite rampant these days solely due to the appalling conduct/attitude
of the concerned authorities. Unauthorized construction of buildings
not only destroys the concept of planned development which is
beneficial to the public but also places unbearable burden on the basic
amenities and facilities provided by the public authorities. At times,
construction of such buildings becomes hazardous for the public and
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creates traffic congestion. Such constructions put unbearable burden
on the public facilities/amenities like water, electricity, sewerage, etc.
apart from creating chaos on the roads. Reliance may be placed upon
the law laid down in Nazir Hussain Vs. Neeta Goel and ors 178
(2011) DLT 660, Onkar Nath Vs. Ram Nath Gupta AIR 1985 Delhi
293, Krishna Kali Mallik Vs. Babu Lal Shaw AIR 1965 Cal 148 and
Smt. And Lhamu Vs. Smt. Ladena AIR 1983 Sikkim 5.
10.16 In Smt. Marriamma Vs. C.P. Thomas AIR 2003 NOC
483 (Ker.) it has been observed that when a citizen starts construction
in violation of municipal regulations, a single individual can file a
simple suit for injunction to restrain the wrongdoer from proceeding
with such an illegal act.
10.17 In K. Ramadas Shenoy Vs. Chief Officer, Town
Municipal Council, Udipi, AIR 1974 SC 2177, it was observed as
under:
"..........The Municipal Authorities owe a duty and obligation under the
statute to see that the residential area is not spoil by unauthorised
construction. The scheme is for the benefit of the residents of the
locality. The Municipality acts in aid of the scheme. The rights of the
residents in the area are invaded by an illegal construction......."
10.18 In the site plan Ex. PW1/A plaintiff has shown her
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property adjoining to the suit property. Though there is great
ambiguity in the address of the plaintiff and the address of the suit
property as discussed above but one fact which has not been disputed
is that they are neighbors. It is not the case of defendant no. 2 that the
plaintiff has not been residing in property no. A9/E as shown in the
site plan or that said property does not belong to the plaintiff or that
defendant no. 2 is not residing in the suit property. In fact the plaintiff
had categorically claimed that property no. A9/E belongs to her
mother in law Ramwati. PW2 categorically stated that the plaintiff is
her aunt and he claims to have been residing in the said property since
his birth which facts were not contradicted by defendant no. 2.
Therefore admittedly residing in the adjoining property, immediate
vicinity and being a citizen the plaintiff definitely has a right to
approach the court against the unauthorized construction being raised
in the suit property.
10.19 Let that be the case now the question which arises for
consideration is whether the plaintiff is entitled to the reliefs of
injunctions as prayed for or not. Having locus to file the suit and being
entitled to the relief of injunction are two distinct aspects. A
party/plaintiff may have the locus to file the suit but may not be
entitled to the reliefs prayed for for one or many reasons. In this case
the plaintiff despite having the locus to file the suit is still not entitled
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to the reliefs prayed for. Reason being the plaintiff's own conduct
which is not clean or equitable. As far as property bearing no. A9/E as
shown in the site plan Ex. PW1/A is concerned which the plaintiff
claimed to be resident of, one writ petition bearing no. 7254/2014 was
filed against the said property by defendant no. 2. Copy of said writ
petition is on record along with orders dated 27.10.2014 passed by the
Hon'ble High Court of Delhi. The relevant portion of order reads as
under:
"Present writ petition has been filed seeking immediate stay and
ultimate demolition of encroachment and unauthorized construction
being carried out by respondents no. 2 to 4 in property No. TA9,
Private Colony, Sriniwaspuri, New Delhi........... Mr. Ajay Digpaul states that the impugned construction is at the initial stage and it has already been booked. He has today in Court handed over a copy of Work Stop Order dated 17th October 2014 issued by Assistant Engineer (Building), Central Zone to SHO, Police Station Amar Colony, New Delhi.
Mr. Nawal Kishore Jha states that in the event any construction is being carried out, the same shall be stopped forthwith in accordance with Work Stop Order dated 17th October 2014. The Work Stop Order dated 17th October 2014 is taken on record and statement made by learned counsel for respondent no. 5 is accepted by this Court. The Assistant Engineer (Building), who is personally present in Court, is directed to have a meeting with the local police officials today itself."
10.20 Defendant no. 2 had categorically stated about the filing of Writ petition and the orders passed therein in her written statement. However in the reply/replication to her written statement the plaintiff CS No. 51342/2016 Manju Devi Vs. SDMC & Anr. 22/28 did not aver a single word regarding the said writ petition. This amounts to concealment and suppression of material facts by the plaintiff. PW2, nonetheless, during his crossexamination stated as "It is correct that the adjoining property bearing no. A9/E, Private Colony, Sriniwaspuri was demolished by the Hon'ble High Court order."
10.21 PW2 is son of Khajan Singh who was respondent no. 2 in the said writ petition, respondent no. 3 is Smt. Ramwati who is the mother in law of plaintiff as claimed by her. Thus, I have no hesitation in concluding that the present suit is a counter blast to the said writ petition filed by defendant no. 2. It is a motivated litigation, the aim and objective of which is to seek revenge. Therefore what emerges is that even the plaintiff's property, property she claims to reside in is unauthorizedly and illegally constructed but still the plaintiff has come to the court crying foul. Same cannot be permitted.
10.22 It is well settled that relief of injunction is an equitable remedy and can be granted only to that person who has acted properly and in a just and fair manner and if plaintiff has acted in an unfair and inequitable manner, then he would not be entitled for grant of injunction. The plaintiff, who asks for injunction must be able to satisfy the court that his own acts and dealings in the matter have been CS No. 51342/2016 Manju Devi Vs. SDMC & Anr. 23/28 fair and honest and free from any complaint or fraud or illegality.
10.23 It is a settled law that a person, who seeks equity, must do equity. The Hon'ble Apex Court in Canara Bank and Ors. v.
Debasis Das and Ors AIR 2003 SCW 1561 held as :
"A person who seeks equity must come with clean hands. He, who comes to the Court with false claims, cannot plead equity nor the Court would be justified to exercise equity jurisdiction in his favour. A person who seeks equity must act in a fair and equitable manner."
10.24 The Court denies the relief to a suitor who is himself guilty of misconduct in respect of the matter in controversy. It is wellknown maxim of equity that "He who comes into equity must come with clean hands," or as otherwise expressed, "He that hath committed inequity shall not have equity".
10.25 The Hon'ble Delhi High Court in Kimti Lal Rahi v.
Union of India , AIR 1993 Delhi 211, has held that:
" 16. [I]t is well settled that one who claims equity must do equity.
Estoppel springs from equity doctrine. If the application at the principal leads to results which are unjust and opposed to fair play and justice the doctrine will have no application in a given case."
CS No. 51342/2016 Manju Devi Vs. SDMC & Anr. 24/28 10.26 In the case of Champa Arora & Ors. vs. Shiv Lal Arora & Ors . 2001 VII AD (Delhi) 602, Hon'ble High Court of Delhi held as under:
"It is a settled law that a person, who seeks equity, must come with clean hands. A litigant who suppresses a fact from the court, indeed looses the right to seek an equitable relief of ad interim injunction".
10.27 Further reliance may be placed upon the law laid down in M/s Seemax Construction (P) Ltd. v. State Bank of India , AIR 1992 Delhi 197 and Mahabir Prasad Jain v. Ganga Singh , AIR 1999 SC 3873. It has been held in Executive Committee of Vaish Degree College, Shamli v. Lakshmi Narain AIR 1976 SUPREME COURT 888 that the relief of injunction is purely discretionary and the plaintiff cannot claim it as a right. The relief has to be granted by the Court according to sound legal principles and ex debito justice. The Court has to administer justice between the parties and cannot convert itself into an instrument of injustice or an engine of oppression. While exercising its discretionary powers the Court must keep in mind the well settled principles of justice and fair play and should exercise the discretion only if the ends of justice require it, for justice is not an object which can be administered in vacuum. Clearly, if a party suppresses material facts from the court then the relief of injunction CS No. 51342/2016 Manju Devi Vs. SDMC & Anr. 25/28 cannot be granted to that party.
10.28 It has to be remembered that a suit for injunction is an equitable remedy & the primary requirement for grant of an equitable remedy is that the person who claims the remedy must come before the Court with clean hands. He must show equity & must show his entitlement under the equity the relief he has sought. Fairness and good faith are two important things required for obtaining any equitable relief.
10.29 If the plaintiff wants the defendants to act in accordance with law she must first abide by the law herself. The duty to be a , AIR 1989 lawful citizen is not one sided. In Leela v. Ambujakshy Kerala 308 the Hon'ble Kerala High Court observed:
"Further injunction is an extraordinary discretionary relief. A person approaching the Court for such a relief must come with clean hands and he must do equity. He who seeks equity must do equity."
10.30 In S.P.Chengalvaraya Naidu (Dead) by LRs Vs. Jaganath (Dead) LRs and ors. AIR 1984 SC 853 Hon'ble Supreme Court observed :
"The Courts of Law are meant for imparting justice between the parties. One who comes to the court , must come with clean hands. We CS No. 51342/2016 Manju Devi Vs. SDMC & Anr. 26/28 are constrained to say that more often then not, process of the court is being abused..........We have no hesitation that a person whose case is based on falsehood has no right to approach the court. He can be summarily thrown out at any stage of litigation."
10.31 In C.B. Aggarwal Vs. P. Krishna Kapoor AIR 1995 Delhi 154 Hon'ble High Court observed:
"It is true that in a civilised society, legal process is the machinery for keeping order and doing justice. It can be used properly or it can be abused. It is used properly when it is invoked for vindication for men's right and enforcement of just claims. It is abused when it is diverted from its true course so as to serve extortion or oppression or to exert pressure so as to achieve an improper end."
10.32 Therefore in view of above discussion issue no. 1 and 2 are decided against the plaintiff.
10.33 Issue no. 3 is decided against the defendant.
Relief
11. As issue no. 1 and 2 have been decided against the plaintiff, suit of the plaintiff is liable to be dismissed and she is not CS No. 51342/2016 Manju Devi Vs. SDMC & Anr. 27/28 entitled to any relief. I order accordingly.
12. Nonetheless nothing discussed herein shall tantamount to prohibiting or restraining the concerned authorities/municipal authorities to take appropriate action as per law against the illegal and unauthorized construction raised in/at the suit property by defendant no. 2 which is indeed liable for action/demolition, though not at the asking of the plaintiff. It is statutory duty of the concerned authority to see that the municipal laws, by laws, master plan/development plan are followed and no illegal or unauthorized construction is carried out in the residential area which causes public nuisance and civic problems. It is expected that defendant no. 1/SDMC shall now wake up from its slumber because the state of affairs of the said government department is most appalling.
13. Decree Sheet be prepared accordingly. File be consigned to Record Room after necessary compliance.
Announced in the open court (Gaurav Rao)
on 6th March 2017 SCJ/RC/SouthEast
Saket Courts/New Delhi
CS No. 51342/2016 Manju Devi Vs. SDMC & Anr. 28/28