Delhi District Court
Vide This Judgment vs Mcd Rsa No.243/17 Dated on 13 November, 2019
In the Court of Shri Ankit Singla : Additional Senior Civil Judge of
Central District at Tis Hazari Courts, Delhi
Suit No.1339/2016
In the matter of :-
Smt. Mary Fernandiese
W/o late Shri Michael,
R/o 16/692, Military Road,
Bapa Nagar, Karol Bagh,
New Delhi-110005
........Plaintif
VERSUS
1. Sh. Shree Chand,
S/o late Shri Tika Ram,
R/o 16/693, Military Road,
Bapa Nagar, Karol Bagh,
New Delhi-110005
2. Municipal Corporation of Delhi,
Through its Commissioner,
Town Hall, Chandni Chowk, Delhi
.....Defendants
Date of institution : 27.09.2008
Reserved for Judgment : 30.10.2019
Date of decision : 13.11.2019
Suit for Declaration, Permanent and Mandatory Injunction
JUDGMENT
1. Vide this judgment, I shall decide the suit filed by the plaintiff for the reliefs of the declaration, permanent and mandatory injunction.
2. Briefly stated the facts as averred in the plaint are that the plaintiff is the absolute owner of the property bearing no.16/692, CS No.1339/16 Page no. 1 of 14 Military Road, Karol Bagh, New Delhi. The defendant no.1 is residing in the property bearing no.16/693, Military Road, Karol Bagh, New Delhi (hereinafter referred to as 'the suit property'). The defendant no.1 has raised a multi storey building on a small plot and started commercial activities though the area is residential only. The construction of said building was raised by the father of the defendant no.1, namely, Shri Tikaram 2-3 years before and at that time, the objection was raised by the plaintiff, but in vain. It is stated that with a view to harass the plaintiff, the father of the defendant no.1 filed a false suit against the plaintiff regarding illegal construction, which was dismissed. Therefore, the defendant no.1 is inimical to the plaintiff. It is stated that the defendant no.1 has raised unauthorized and illegal construction in the suit property due to which air and natural light of the plaintiff has been obstructed. The defendant no.1 has increased balconies and gallery to such extent that the total street has been covered and no light is entering to the house of the plaintiff. It is stated that the plaintiff has requested the defendant no.1 to remove such illegal construction, but in vain. In such circumstances, the plaintiff filed the present suit seeking following reliefs :
i. Pass a decree of permanent and mandatory injunction and the defendants no.1 and 2 be directed to proceed immediately in respect of unauthorized construction and user of property No.16/693, Military Road, Bapa Nagar, new Delhi and to demolish the same, which is shown in red colour in site plan annexed. Further, the defendant no.1 may be directed to demolish the unauthorized construction which comprises of coverage of free common passage Gali and common chowk and further raising of unauthorized construction in the above property.
ii. Any other relief which this Hon'ble Court may deem fit and proper may also be granted to the plaintiff and against the defendants."
CS No.1339/16 Page no. 2 of 14
3. Summons of the suit were issued, the defendants appeared and filed their written statement.
4. The defendant no.1 contested the present suit by filing his written statement, wherein it is contended that the suit is not legally, validly and properly valued for the purposes of court fee and jurisdiction. It is stated that the plaintiff has not come before this Court with clean hands and has suppressed the material facts as the plaintiff has raised illegal and unauthorized construction on the ground floor, first floor, second floor and third floor in the property no.16/692-1, Bapa Nagar, Padam Singh road, Karol Bagh, New Delhi-110005 and the same had been booked by the MCD vide FIR No.251308 dated
03.08.2004 and the show cause notice in this regard duly served upon the plaintiff under Section 343/344 of the DMC Act, 1957. It is denied that the defendant no.1 has increased balconies (chhajja) and gallery to such extent that the total street has been covered and no light and air is entering to the house of the plaintiff and in this regard no such request to remove such construction was made by the plaintiff to the defendant. The defendant no.1 has denied the other allegations of the plaint and has prayed for dismissal of the suit.
5. The defendant no.2/MCD (now known as "North DMC") contested the present suit by filing its written statement, wherein, preliminary objections have been taken that no notice as required under Section 477/478 of the DMC Act has been served prior to filing of the present suit. It is stated that the property bearing no.16/693-I, Bapa Nagar, Military Road, New Delhi was inspected on 20.10.2008 which is an unauthorized regularized colony. It is stated that upon inspection it was found that the above mentioned property consists of CS No.1339/16 Page no. 3 of 14 ground floor, first floor, second floor and part third floor with projection on municipal land, which is old and occupied. It is stated that at present no unauthorized construction/activity was going on at the site nor any building material was found stacked at the site. It is stated that the plaintiff has not come before this Court with clean hands and has suppressed the material facts that as per records, the property of the plaintiff bearing no.16/692-I, Bapa Nagar, Military Road, New Delhi also stands booked vide file No.B/UC/KBZ/2004/365 dated 03 rd August, 2004 for unauthorized construction of ground, first, second and third floor. It is stated that by following due process of law, the necessary demolition order was also passed, vide order dated 18.08.2004 as per the DMC Act. It is stated that the present suit has been filed by the plaintiff with ulterior motive to settle her personal score with the defendant no.1. It is stated that the present suit is not maintanable under Section 41 (h)
(n) and (i) of the Specific Relief Act. The defendant no.2 has denied the other allegations of the plaint and has prayed for dismissal of the suit.
6. Separate replications were filed by the plaintiff to the written statement of the defendant no. 1 as well as the defendant no. 2, wherein the contents of the plaint have been reiterated and the contentions of the defendants in their written statement have been denied.
7. After completion of pleadings, following issues were framed by my learned Predecessor vide order dated 08.03.2011:
1 Whether the plaintif has not approached the Court with clean hands? OPD 2 Whether the suit of the plaintif is barred for want of notice under Section 477 & 478 of the DMC Act? OPD CS No.1339/16 Page no. 4 of 14 3 Whether the plaintif is entitled for the relief of declaration as prayed for? OPP 4 Whether the plaintif is entitled for relief of permanent injunction? OPP 5 Whether the plaintif is entitled for relief of mandatory injunction? OPP 6 Relief.
Plaintif's Evidence
8. The plaintiff has examined two witnesses. PW1 is Ms. Jospheen Fernandes, daughter/SPA of the plaintiff who in her affidavit in evidence Ex.P-1 has stated and reiterated on oath the contents of the plaint. She has relied upon certain documents. The special power of attorney is Ex.PW1/A. The site plan is Ex.PW1/C. The photographs are Ex.PW1/D (colly). Copy of property tax form and the cash receipt dated 16.03.2011 are Ex.PW1/E (colly). The certified copy of the record of counter claim is Ex.PW1/F. This witness was cross examined at length.
9. PW-2 is Shri Asha Ram, resident of area where the suit property as well as house of the plaintiff is situated. In his evidence affidavit Ex.PW2/A, this witness deposed that the plaintiff and the defendant no.1 are resident of the area and their properties are just adjacent to each other. He further deposed that there is one gali in between the complex measuring 45 feet in length and 5 feet in width. This narrow gali of 5 feet is the only way to enter in the house of the plaintiff and her entrance is open to the said gali. PW2 further deposed that the defendant no.1 by taking advantage of the geography of his plot, in order to usurp the common gali raised illegal constructions and covered the gali by extending balconies/chajja above the narrow gali and totally covered and prevented the passage of free air and natural CS No.1339/16 Page no. 5 of 14 lights to the house of the plaintiff. He further deposed in his evidence affidavit that the plaintiff and her family has faced lot of hardship and sufferings due to the illegal construction and there is total darkness in the gali. The defendant no.1 made multi storied construction without obtaining consent or approved site plan from concerned local authorities/defendant no.2. PW2 further stated that other residents approached the defendant no.1 and requested him not to make illegal construction on number of occasions, but whenever someone approached him, the defendant no.1 picked up quarrel and threatened them. He states that the aforesaid gali is a common street meant for all the residents living in the complex and the defendant no.1 has already took the illegal occupation of the common gali to his unlawful possession. This witness was also cross examined at length.
Defendant's Evidence
10. The defendant no.1 has examined himself as DW1 who in his affidavit in evidence Ex.DW-1/A has stated and reiterated on oath the contents of his written statement. He has relied upon certain documents. Copy of FIR No.25138 dated 03.08.2004 lodged by the MCD against the property of the plaintiff is Ex.DW1/1. Copy of show cause notice issued by the MCD to the plaintiff under Section 343 is Ex.DW1/2 and under Section 344 of the DMC Act, 1957 is Ex.DW1/3. Copy of the order dated 29.03.2006 is Ex.DW1/4.
11. It was submitted by Ms. Sarita Gaur, ALO, North DMC on 22.10.2019 that no evidence is to be led on behalf of North DMC, therefore, DE was closed on behalf of North DMC and the matter was fixed for final arguments.
CS No.1339/16 Page no. 6 of 14
12. Final arguments have been heard and record has been perused. I have also gone through the written arguments filed on behalf of the plaintiff.
13. Now I shall give my issue-wise findings.
Issue no.1 : Whether the plaintiff has not approached the Court with clean hands? OPD Issue no.4 : Whether the plaintiff is entitled for relief of permanent injunction? OPP Issue no.5 : Whether the plaintiff is entitled for relief of mandatory injunction? OPP
14. These issues are taken up together as the same involves common question of law and facts. The plaintiff has filed the present suit alleging that the defendant no.1 has raised unauthorized construction in or about April/May, 2005 in the suit property, which has caused great hardship to her, because the same has obstructed flow of air and natural light to her house. The defendant no.1 has denied raising any unauthorized construction in the suit property. The defendant no.2/North DMC also stated in its written statement that at the time of inspection, the suit property was found consisting of construction up to third floor which is old and occupied and neither any construction activity was going on at the site nor any building material was found stacked at the site. Since, the allegation levelled by the plaintiff in the plaint has been categorically denied by the defendants no.1 and 2, in order to be entitled for reliefs in question, the onus was CS No.1339/16 Page no. 7 of 14 upon the plaintiff to prove the factum of fresh unauthorized construction raised by the defendant no.1 and the fact that the same has resulted into obstruction of air and light to her house.
15. In order to discharge this onus, the plaintiff has examined two witnesses. PW1 i.e. Mrs. Joseph Fernadese and PW-2 Asha Ram. Both these witnesses in their evidence by way of affidavit vaguely stated that unauthorized construction has been raised by the defendant no.1 without mentioning the date or month on which alleged unauthorized construction was raised in the suit property. Both these witnesses have also failed to file any photograph of ongoing construction into the suit property. They also did not file any photograph of any building material collected by the defendant no.1. From the careful perusal of all the documents filed by the plaintiff, it is clear that the plaintiff has failed to file any evidence at all to show that the defendant no.1 or anyone else raised any construction in the suit property. As per the written statement of the defendant no.2, at the time of inspection, no fresh construction was found to be taking place in the suit property and the entire structure was found to be old and occupied. In the absence of photographs showing ongoing construction, or stacking of building material for raising such construction, the testimony of the PW1 and PW2 that the defendant no.1 has raised unauthorized construction in the suit property remained bald and unsubstantiated and hence, the same cannot be relied upon. Without proving on record that the defendant no.1 has raised fresh unauthorized construction in the suit property as alleged in the plaint, the suit of the plaintiff is bound to fail.
16. In order to succeed in the present suit, the plaintiff was not only required to prove that fresh unauthorized construction has been raised CS No.1339/16 Page no. 8 of 14 in the suit property, but she was also required to prove that said unauthorized construction has obstructed flow to air and light to her house and thereby caused hardship to her. If the plaintiff fails to show that unauthorized construction in the suit property has not caused any loss, damage or inconvenience to the plaintiff, then her suit would be without any locus and cause of action, therefore, same would be liable to be dismissed. In this regard, reliance is placed upon a judgment titled as Rajinder Motwani vs. MCD RSA No.243/17 dated 16.10.2017, the Hon'ble Delhi High Court in para no. 8 held as under :
"an illegal construction in itself does not give any legal right to a neighbour. An illegal construction always no doubt gives locus standi to the local municipal authorities to seek removal of the illegal construction, but a right of a neighbor only arises if the legal rights of light and air or any other legal right is affected by virtue of the illegal construction of the neighbor. Legal right to light and air is only in terms of section 15 of the Easement Act, 1882 which requires a cause of action to be laid out and proved that right to light and air has been enjoyed for 20 years and only on completion of 20 years there is right to acquisition by prescription in the easementary rights. It is relevant to note that even after acquisition of easemenatry rights of prescription, yet, right to injunction for a neighbor is not absolute and is covered by Section 33 of the Easement Act which requires that disturbance to the easementary rights must actually cause substantial damage to a neighbor and the infraction materially diminishes the value of the dominant heritage with the fact that there is material interference in the physical comfort of the neighbor of living in his own house or prevents the neighbor from carrying on his accustomed business in the dominant heritage/his own house. All these are factual aspects and admittedly there is no cause of action which is laid out in the plaint in terms of section 15 and 33 of the Easement Act that right to easement of the appellants/plaintiffs has become absolute as it has been enjoyed for 20 years and that in fact after rights to easement are acquired by prescription there is also a substantial damage to the appellants/plaintiffs or there is material interference in the physical comfort of the CS No.1339/16 Page no. 9 of 14 appellants/plaintiffs or the appellants/plaintiffs being prevented from carrying on his accustomed business in their own dominant heritage/own property."
17. Thus, from the above judgment passed by the Hon'ble Delhi High Court, it is clear that merely by virtue of being neighbour or resident of locality, a person does not become entitled to file a suit to restrain other from carrying illegal construction. In order to have locus, the party filing the suit must show that by virtue of such construction his legal right to air or water or light has been affected or such construction is going to be detrimental to his own property or his safety.
18. In the present case, the plaintiff has not placed on record, the site plan of her own property. She also failed to placed on record report of any structural engineer or any other evidence like photographs showing that air and light to her house has been obstructed due to unauthorized construction in the suit property. Thus, in view of absence of evidence showing obstruction of air and light to house of the plaintiff due to alleged unauthorized construction, this Court is of the opinion that the plaintiff has failed to show existence of cause of action and locus in her favour. Accordingly, this Court has no hesitation to hold that the suit of the plaintiff is liable to be dismissed for failure to prove existence of cause of action and locus.
19. Further, it has been observed by the Court that there is material contradiction regarding the time of alleged unauthorized construction raised by the defendant no.1 and his father. The perusal of plaint shows that it is alleged that father of the defendant no.1, Shri Tikka Ram raised unauthorized construction in the suit property on or about CS No.1339/16 Page no. 10 of 14 April/May, 2005, but the plaintiff gave complaints to the MCD on 06.06.2004 and 11.06.2004. If the date and month mentioned in the plaint regarding the time of alleged unauthorized construction to be considered as correct, then a question arise as to how the plaintiff made a complaint regarding unauthorized construction one year prior to raising of unauthorized construction by the father of the defendant no.1. No answer could be given by the counsel for the plaintiff to this contradiction. Therefore, it is inferred that the averment that in April/May 2005, father of defendant no. 1 was raising unauthorized construction is incorrect. A person making a wrong averment in the Court on material aspect is not entitled for equitable relief. On this count also, the suit of the plaintiff is liable to be dismissed.
20. Further, it has been observed by the Court that the suit of the plaintiff is barred by limitation. The present suit has been filed on 29.09.2008, whereas, in the plaint itself, it is alleged that unauthorized construction was raised in th suit property on or about April/May, 2005. The period of limitation for filing suit for permanent and mandatory injunction is three years from the date when cause of action arose. In the present case, the cause of action, if any arose in April/May, 2005. So, the plaintiff could have filed the present suit by April/May, 2005, but the same has been filed on 29.09.2008. Therefore, the same is time barred. Hence, the plaintiff is bound to fail in all the issues in question.
21. Further, the defendant no.1 appeared in the witness box and stated that it was the plaintiff who raised unauthorized construction and the present suit has been filed only to settle the score with him as his father had filed a suit against the plaintiff for unauthorized CS No.1339/16 Page no. 11 of 14 construction. The defendant no.2 also stated in its written statement that plaintiff herself has raised unauthorized construction and her property has already been booked for unauthorized construction. During cross-examination, PW1 and PW2 categorically admitted that the plaintiff raised construction in 1996 and 1997. PW1 during his cross-examination stated that she has filed documents of permission, however, no such document is placed on record in evidence by PW1 or PW2. PW1 who is daughter of the plaintiff categorically admitted that she does not have any sanction building of the property because of the colony is unauthorized and no one has sanction building plan. The categorical admission by PW1 that there is no sanction building plan shows that the plaintiff herself has raised unauthorized construction. A person who himself has raised unauthorized construction cannot seek an equitable relief of mandatory and permanent injunction to demolish the unauthorized construction raised by some one else. In this regard, reliance is placed upon an order dated 06.07.2015 passed by the Hon'ble Delhi High Court in a case titled as "Satbir Singh Versus South DMC & Ors. W.P.(C) 6322/2015 & CM No.11506/2015"
wherein it was held that a person who has himself raised unauthorized construction cannot seek equitable relief. In this case also, Hon'ble Delhi High Court was pleased to order inspection of property of petitioner and was pleased to hold that if any unauthorized construction/encroachment has taken place or found, immediate action of demolition or removal be taken against the same. Thus, on this count also, the suit of the plaintiff is liable to be dismissed.
22. Accordingly, in view of above discussions, the issues in hand are decided against the plaintiff.
CS No.1339/16 Page no. 12 of 14 Issue no.3 : Whether the plaintiff is entitled for relief of declaration? OPP
23. Onus qua this issue was placed on the plaintiff. Though in the title of the plaint, it is written that "suit for declaration, permanent and mandatory injunction", however, perusal of reliefs sought shows that no relief of declaration has been sought. It seems that this issue has inadvertently been framed by my learned Predecessor. Since no relief of declaration has been sought, the issue in hand stands deleted by exercising the power under Order 14 CPC.
Issue no.2 : Whether the suit of the plaintiff is barred for want of notice under Section 477 & 478 of the DMC Act? OPD
24. Onus qua this issue was placed on the defendant no.2. The present suit has been filed seeking relief of permanent and mandatory injunctions. At this stage, it would be relevant to go through the Section 477 & 478 of the Delhi Municipal Corporation Act, 1957 wherein it is stated that:
"Section 477 of Delhi Municipal Act, 1957- Protection of action of the Corporation, etc. - No suit or prosecution shall be entertained in any Court against the Corporation or against any municipal authority or against any municipal officer or other municipal employee or against any person acting under the order or direction of any municipal authority or any municipal officer or other municipal employee, for anything which is in good faith done or intended to be done, under this Act or any rule, regulation or bye-law made thereunder.
"478 (1) - No suit shall be instituted against Corporation or against any municipal authority or against any municipal officer or other municipal employee or against any person acting under the order or direction of municipal authority or any municipal officer or other municipal employee, in respect of any act done, or purporting to have been done, in pursuance of this Act or any rule, regulation or bye-law made thereunder until the expiration of two months after notice in writing has been left at the municipal office and, in the case of such officer, employee or person, unless notice in writing has also been delivered to CS No.1339/16 Page no. 13 of 14 him or left at his office or place of residence, and unless such notice states explicitly the cause of action, the nature of the relief sought, the amount of compensation claimed, and the name and place of residence of the intending plaintiff, and unless the plaint contains a statement that such notice has been so left or delivered.
(2) No suit, such as is described in sub-section (1), shall unless it is a suit for the recovery of immovable property or for a declaration of title thereto, be instituted after the expiry of six months from the date on which the cause of action arises.
(3) Nothing in sub-section (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."
25. It is clear from the above said Section that in a suit for injunction, no statutory notice is required to be given before filing the suit. Since, this is a suit for injunction only, no statutory notice was required to be given to the North DMC before institution of the present suit. Hence, this issue is decided in favour of the plaintiff and against the defendants no.1 and 2.
Relief
26. In view of my above findings, the suit of the plaintiff is dismissed with cost. Decree sheet be prepared accordingly. File be consigned to Record Room after due compliance.
Digitally signed by ANKIT ANKIT SINGLA
Announced in the Open Court
on 13.11.2019 SINGLA Date: 2019.11.16
14:53:10 +0530
(Ankit Singla)
Additional Senior Civil Judge
Central District: Tis Hazari Courts: Delhi
CS No.1339/16 Page no. 14 of 14