Delhi District Court
Sh. Inderjeet Singh vs Municipal Corporation Of Delhi on 27 July, 2012
IN THE COURT OF SH. LOKESH KUMAR SHARMA, JSCCCUM
ASCJCUMGUARDIAN JUDGE (WEST): DELHI
Suit No. 2587/08
Unique Case I.D. No. 02401C0639382007
Sh. Inderjeet Singh
S/o Late Dr. Saran Singh
R/o Flat No. D2, Ground Floor,
Nav Bharat Apartments,
A4, Paschim Vihar, New Delhi. ...........Plaintiff
Versus
1. Municipal Corporation of Delhi
Through its Commissioner,
Town Hall, Delhi06.
2. Delhi Development Authority
Through its Vice Chairman,
Vikas Sadan, Near I. N. A.,
New Delhi. .........Defendants
Date of filing of the suit : 05.07.2007
Date of reserving judgment : 23.07.2012
Date of pronouncement of judgment : 27.07.2012
J U D G M E N T
1. The plaintiff had filed a suit for perpetual injunction against the defendants. The brief facts necessary for the disposal of the present suit are succinctly given here as under:
2. It was stated that the plaintiff was a law abiding citizen and was residing at Flat No. D2 (Ground Floor), Nav Bharat Apartments, A4, Paschim Vihar, New Delhi (Hereinafter referred as the "suit property/said flat") for the last about more then 10 years having Suit no. 2587/08 Inderjeet Singh vs MCD/DDA Page No. 16/1 purchased the said flats on the basis of the Agreement to Sell etc. from one Smt. Neeru Malik. The detailed accommodation available with the plaintiff in the said flat was shown and described in the site plan attached with the plaint including the portion which was shown as red in the annexed site plain.
3. It was stated that there were three projections/sun sheds having a width of about 1.6 feet as was shown in the site plan, which were in existence for the last about more than 10 years since the date of purchase of the said property and there were two covered varandahs V1 and V2 as detailed in the site plan and those were also originally constructed by the DDA and in order to avoid the rain water, the previous owner had simply erected the windows in the said covered verandahs marked as V1 and V2, but the plaintiff since the date of its purchase had neither made any additions or deviations in the suit property/said flat nor had even carried out any unauthorized construction in the suit property/said flat and the plaintiff had never encroached upon the defendant no. 1/MCD and defendant no. 2/DDA or Govt. Land till date. However, it was stated further that on 18.06.2007, the officials of defendants had visited the suit property and had also threatened to demolish those projections and covered verandahs, which though they could not succeed on the said date but had threatened to visit again for the said purpose, which otherwise they could not have carried out without complying the statutory provisions of laws framed in this regard.
Suit no. 2587/08 Inderjeet Singh vs MCD/DDA Page No. 16/2
4. Cause of action for filing of the present suit had firstly arisen on 18.06.2007 when the defendants had visited the suit property and had threatened the plaintiff to demolish the portion shown as red in the site plan forming part of the suit property i.e. sun sheds and the covered verandahs marked as V1 and V2 in the site plan and the cause of action for filing the present suit was stated to still subsisting even on the date of institution of the suit in as much as the threats of the defendants were still continuing.
5. Since, the suit property was situated at Delhi and the cause of action had also arisen at Delhi, hence this Court was stated to have jurisdiction to try and entertain the present suit. In the light of aforesaid facts, it was prayed that by way of a decree for perpetual injunction being passed in favour of the plaintiff and against the defendants, the defendants, their officials, employees etc. be restrained permanently from demolishing the portion shown as red in the site plan forming part of the suit property illegally/forcibly or except by due process of law.
6. After service of the summons, the defendants had also duly appeared and contested the case on its merits and had also filed their written statements on record. The defendant no. 1 had taken the preliminary objections that the suit of the plaintiff was hit by Sections 477 and 478 of the Delhi Municipal Corporation Act for want of statutory notice upon the defendants. It was also stated that the suit of the plaintiff was defective and deficient as no copy of alleged site plan and other relevant documents had been supplied to the defendants. It was also stated that the building activities of Suit no. 2587/08 Inderjeet Singh vs MCD/DDA Page No. 16/3 the suit property in question had not fallen under the jurisdiction of answering defendant no. 1/MCD and the building activities of the suit property in question had fallen under the jurisdiction of the defendant no. 2/DDA and the defendant no. 1/MCD had been unnecessarily impleaded as a party in the present suit. It was also stated that the suit of the plaintiff was without any cause of action against the defendant no. 1/MCD and the same was thus liable to be dismissed under Order 7 Rule 11 CPC.
7. The defendant no. 2 had also taken the preliminary objections that the suit of the plaintiff was not maintainable against the defendant no. 2/DDA and the same was liable to be dismissed as the plaintiff was having no relation with the defendant as neither he was a lessee nor he had obtained any permission from the said defendant for purchasing the same as a Group Housing Society was always treated as a single entity by the defendant no. 2. It was also stated that the present suit as framed was also liable to be dismissed for the reasons of misjoinder and nonjoinder of parties as the Group Housing Society i.e. Nav Bharat CGHS Ltd., Paschim Vihar, New Delhi was also cited as a necessary party to the present suit. It was also stated that the suit was not maintainable against the defendant no. 2/DDA as any kind of encroachment or construction in contravention of sanctioned plan was unauthorized construction under Section 12 and 29 of Delhi Development Authorities Act, 1957. It was also stated further that the plaintiff was also guilty of not approaching the Court with clean hands.
Suit no. 2587/08 Inderjeet Singh vs MCD/DDA Page No. 16/4
8. On merits, all factual assertions made by the plaintiff in his plaint were denied by the defendants as wrong and incorrect except those which were either purely legal in nature or were matter of record.
9. The plaintiff had also filed replications to the written statement of the defendants, wherein he had denied all the preliminary objections as wrong and incorrect as were taken by the defendant in their written statement. On merits, all the factual contentions of the plaint were reiterated and reaffirmed as correct.
10.After considering all the pleadings of the parties, vide order dated 11.07.2009 Ld. Predecessor of this Court was pleased to frame following issues for the purpose of adjudication :
1. Whether the plaintiff is entitled for the relief of permanent injunction? OPP
2. Whether the suit property does not fall within the jurisdiction of the defendant no. 1? OPD1
3. Whether the suit is bad for mis joinder/ non joinder of the necessary parties? OPD2
4. Relief.
11.None had come forward from the side of the plaintiff to advance the arguments. Not only this, but also, written submissions were also not filed on his behalf despite an opportunity being granted to him Suit no. 2587/08 Inderjeet Singh vs MCD/DDA Page No. 16/5 for the said purpose. Hence, after hearing Ld. Counsels for the defendants and perusing the evidence and other relevant material on record, my issue wise findings are as under:
Issue No. :1.
"Whether the plaintiff is entitled for the relief of permanent injunction?" OPP
12.Onus to prove this issue was upon the plaintiff and in order to discharge this onus the plaintiff had appeared in the witness box as his sole witness and had filed in evidence, his examinationinchief by way of affidavit Ex. PW1/A wherein he had reiterated all the factual contents of this plaint on solemn affirmation and besides that he had also placed on record document Ex. PW1/1 which was the site plan.
13.During the crossexamination of the plaintiff by Ld. Counsel for the defendant no.1/MCD, the plaintiff had stated that he was not aware of the name of the officer who was a part of the demolition squad which had come to his flat on 18.06.2007. He had denied the suggestion put to him that the demolition squad which came to the suit property on 18.06.2007 was from the defendant no. 2/DDA. He had further stated that he was not aware whether the defendant no. 2/DDA had initiated proceedings against the unauthorized construction in the flats situated at Nav Bharat Apartment, Paschim Vihar, Delhi. He had further stated that he was not aware that the defendant no. 2/DDA had served show cause notices and had also passed demolition order against the Suit no. 2587/08 Inderjeet Singh vs MCD/DDA Page No. 16/6 unauthorized construction in the flats situated at Nav Bharat Apartments. He had further denied the suggestion put to him that the building activities of Navbharat Apartment, Paschim Vihar were within the preview and jurisdiction of the defendant no. 2/DDA and not with the defendant no.1/MCD. He had further denied the suggestion put to him that the defendant no. 1/MCD had been wrongly impleaded as a party in the present suit and that the defendant no. 1/MCD had no role to play in the present suit.
14.During the crossexamination of the plaintiff by Ld. Counsel for the defendant no. 2/DDA, the plaintiff had stated that he was comfortable in understanding English, Hindi and Punjabi and the contents of the plaint as well as affidavit Ex. PW1/A were within his personal knowledge and were prepared upon his instructions. He had stated that he was not able to recollect as to when Ex. PW1/A was prepared and got attested and he was staying in suit property i.e. Flat no. D2, Ground Floor, Nav Bharat Apartments, A4, Paschim Vihar, New Delhi63 as an owner after having purchased the said property in June 1996 from one Sh. Malik. He had stated that though the sale deed had also been executed but he was not able to recollect as to whether the same was registered or not. He had stated that he could not remember if any sale permission was taken from the DDA or not. He had stated further that he had not signed any document to that effect and the site plan Ex. PW1/1 was prepared by him but he had no site plan issued/prepared by the defendant no. 2/DDA. He had also stated that he did not know if the three projections / sun sheds were there as per the original construction/ sanctioned plan and when he had purchased the suit Suit no. 2587/08 Inderjeet Singh vs MCD/DDA Page No. 16/7 property, the said three projections/ sun sheds were already in existence. He had further stated that he had no knowledge that the same were unauthorized, illegal and without any sanctioned plan and further he did not know as to who had constructed the said verandah. He had stated further that the said verandah had not been constructed by the defendant no. 2/DDA but by Nav Bharat Cooperative Group Housing Society and the windows over the said verandah were constructed by the previous owner and not by him. He had further stated that he could not say if the said windows were erected illegally and without any sanctioned plan and if the same was constructed without sanctioned plan of the defendant no. 2/DDA. He had admitted the suggestion put to him that the land over which the suit property was constructed was allotted to Nav Bharat Cooperative Group Housing Society as single entity and not to him/previous owner in their personal or individual capacity and he had stepped into the shoes of the previous owner of the suit property. He had further stated that he was not aware if any permission was taken from Nav Bharat Cooperative Group Housing Society, to modify the covered verandah. He had admitted the suggestion put to him that on 31.10.2009, officials of the defendants had come to the suit property to demolish the same but he could not say if the same were the staff of the defendant no. 2/DDA or defendant no. 1/MCD but there were about twenty five officers. He had admitted that he had not made Nav Bharat Cooperative Group Housing Society as a party in the present suit. However, it was denied by him that the unauthorized construction and encroachment was in contravention of the provisions of DDA Act. He had further denied the suggestion put to him that the Suit no. 2587/08 Inderjeet Singh vs MCD/DDA Page No. 16/8 sealingcumdemolition order under Section 30 (1) of DDA Act was issued on 22.09.2006. He had denied the suggestion put to him that no one from the defendant no. 2/DDA had ever visited the suit premises on 18.06.2007. He had also stated that he had no personal knowledge about provisions and policies of the DMC Act or DDA Act. He had denied the suggestion put to him that the sun shed, three projections, covering of verandah or erection of windows were illegally or unauthorizedly constructed against sanctioned plan. Thereafter the PE was closed.
15.The defendants in their evidence in defence in rebuttal had examined only one witness from the office of DDA. DW1 Sh. Rajender Kumar, Assistant Engineer (Civil) from DDA who had stated in his examinationinchief filed on record by way of affidavit Ex. DW1/A that the copy of the lease deed was exhibited as DW1/1 and the Nav Bahart Cooperative Group Housing Society as a single entity was allotted the land by the defendant no. 2/DDA. He had also stated that the covering of verandah as stated V1 and V2 itself was in violation of the Sanctioned plan and prohibited under Section 12 and 29 of DDA Act, 1957 which provided that any kind of construction in contravention of sanction was recognized as an unauthorized construction and in the present matter the covering of verandah whether done by the previous owner or the plaintiff itself was an unauthorized construction and had fallen under the violation of law. He had stated that any kind of violator as the plaintiff in the impugned case was, could not have escaped from the law besides was having no cause of action against the defendant no. 2/DDA. He had further stated that the none of the officials of Suit no. 2587/08 Inderjeet Singh vs MCD/DDA Page No. 16/9 the defendant no. 2/DDA had ever visited the plaintiffs suit premises on 18.06.2007 and had threatened the plaintiff as alleged by him in the said suit. He had further stated that sealing cum demolition order under Section 30 (1) of DDA Act was issued on 22.09.2006 for removal of the unauthorized construction and the said sealing cum demolition order was exhibited as Ex. DW1/2. He had further stated that to implement the said order Ex. DW1/2, the officials of LM branch and Building department of the defendant no. 2/DDA had visited the CGHS to identify the unauthorized construction listed in the sealing cum demolition order, only on 15.06.2007. He had further stated that the show cause notices were also duly issued in respect of the said society vide no. F23(40)78/Bldg dated 10.09.2001 followed by other notices dated 24.09.2001 and 11.09.2006 before the sealing cum demolition order under Section 30 (1) and 31A of DDA Act dated 22.09.2006 were duly issued and the copies of the said notices were exhibited as DW1/3 to DW1/5.
16.During his crossexamination by Ld. Counsel for the plaintiff, DW1 had admitted the suggestion put to him that he had not personally visited the suit property but his previous officers had visited the same. He had stated that the verandahs V1 and V2 in the site plan Ex. PW1/1 were in existence at the time of inspection by the staff of the defendant no. 2/DDA. He had admitted that the aforesaid verandah might be in existence for the last 12 15 years. He had stated that he could not say as to whether the verandah was in existence when the plaintiff had purchased the suit property. He had denied the suggestion put to him that each flat in Suit no. 2587/08 Inderjeet Singh vs MCD/DDA Page No. 16/10 the society was having extended verandah and the extended verandah could have been regularized by the defendant no. 2/DDA individually. He had further stated that he had no knowledge about the writ petition having been filed by the society regarding the issue of verandah before the Hon'ble High Court of Delhi and an injunction order was being also passed in favour of the society and against the defendant no. 2/DDA. Thereafter the DE was closed.
17.After appreciation of the evidence adduced on record by both the sides as well as the documents placed and proved on record, I have no hesitation in holding that apart from only placing on record the site plan, the plaintiff had miserably failed to substantiate his allegations contained in the plaint by placing any other documents on record to show that the covered verandah or the other projections which were in existence in his property were the part and parcel of original sanctioned map of the society which he was legally entitled to protect from being demolished by the defendants.
18.It has also been interesting to note that the plaintiff had not been able to substantiate his allegations in his evidence as well. In the plaint, he had claimed himself to be a purchaser of the said property from one Smt. Neeru Malik. However, in his depositions before the Court during his crossexamination, he had stated that the property was sold to him by one Mr. Malik. Admittedly, no permission was sought from the defendant no. 2/DDA or any other competent authority by the plaintiff before purchasing the said flat nor did he ever bothered to check the sanctioned plan of the society. Though, initially he had stated that the flats of the society Suit no. 2587/08 Inderjeet Singh vs MCD/DDA Page No. 16/11 were constructed by the defendant no. 2/DDA. However, later on he had admitted during his crossexamination that it was the society and not the DDA who had constructed the said flats along with those verandahs etc.
19.So far as existence of the projections were concerned, the plaintiff had expressed his lack of knowledge to tell as to whether the same were constructed as per the original sanctioned site plan or not and the same was his answer regarding the existence of verandahs as well. He could not even tell as to whether the existence of those sunsheds was unauthorized and illegal and without any sanctioned plan or not. The plaintiff had also tried to take protection of the construction on the pretext and the same was not raised by him but by his predecessor in interest. Be that as it may, once the plaintiff himself had stepped into the shoes of the previous owner then it can be held without hesitation that he was solely to be held liable and responsible for all the acts, deeds, omissions and misdeeds of his predecessor in interest. It is also a settled proposition of law that an illegality even if committed till perpetuity does not become ipsofacto or enjoy the status of legal process unless it has been so recognized by any subsequent rule of law framed in this regard.
20.However, I do find some force in the contentions raised by the defendant no. 2/DDA that the plaintiff had also not placed on record any revised sanctioned plan obtained by society prior to making of those structural changes in the flats. Further, it was contended on behalf of the defendant no. 2/DDA that the land was Suit no. 2587/08 Inderjeet Singh vs MCD/DDA Page No. 16/12 allotted by it to the Cooperative Group Housing Society as single entity and the ground coverage, FAR and other MPD norms besides building laws regulations were applicable for the entire society as a whole as one single Group Housing unit and not to vary with the individual flat/unit. Further more, in a cooperative society final authority always vest with general body of the members and any kind of modification of the building plans of the said society cannot be carried out without getting the same approved by the general body and then it has to be submitted to the defendant no. 2/DDA and any kind of modification in a single flat without consideration of the society's Group Housing design might also have certain implications on structural stability and strength and other such aspects as well.
21.Not only this, but also, the plaintiff had all through being playing hide and seek from the Court and had not been able to clearly establish the fact on record as to whether the persons who had visited the property were the employees of the defendant no. 1/MCD or the defendant no. 2/DDA. Hence, in the absence of aforesaid peculiar and vital pieces of evidence, I have no hesitation in holding that the plaintiff had miserably failed to prove his allegations as contained in the suit and the issue is accordingly decided in favour of the defendants and against the plaintiff. Suit no. 2587/08 Inderjeet Singh vs MCD/DDA Page No. 16/13 Issue No. :2.
"Whether the suit property does not fall within the jurisdiction of the defendant no. 1?" OPD1
22.Onus to prove this issue was upon the defendant no. 1/MCD. However, no evidence was adduced on his behalf to discharge this onus by the plaintiff that the property in question had fallen within the jurisdiction of the MCD and was no longer required by the defendant no. 2/DDA. Once, the officials of the defendant no. 1 themselves were claiming that DDA had not handed over them the aforesaid society then in the absence of any document being produced before the Court to the contrary, I have no hesitation in holding that the defendant no. 1/MCD which itself had also stated that it had nothing to do with the suit property in question coupled with the fact that the defendant no. 2/DDA in its reply had also admitted the visits of its officials at the said Cooperative Group Housing Society then without any hesitation, it could be easily held that the defendant no. 1/MCD had no role to play in the present litigation and was unnecessarily dragged in the present case because even the defendant no. 2/DDA also could not produce any document on record to show that it had handed over the property in question to the defendant no. 1/MCD at any point of time whatsoever. Accordingly, the issue is decided in favour of the defendant no. 1 and against the plaintiff.
Suit no. 2587/08 Inderjeet Singh vs MCD/DDA Page No. 16/14 Issue No. :3.
"Whether the suit is bad for mis joinder/ non joinder of the necessary parties?" OPD2 The onus to prove this issues was upon the defendant. However, as already had been disclosed above, I have no hesitation in holding that the present suit was bad for nonjoinder of the parent society of the plaintiff where he was residing that is Nav Bharat Apartments, A4, Paschim Vihar, New Delhi. Not only this, but also, the plaintiff had gone further to implead and implicate even the defendant no. 1/MCD as well as a defendant in the present suit despite the fact that it was categorically stated by it that it had no concern with the property in dispute i.e. suit property in question. Similarly, I also find that despite statement given by it on oath, once it was stated that the defendant no. 1/MCD had no role to play in this case then its unnecessary impleadment in the present case leads to only one invariable conclusion that the present suit was not only bad for non joinder and misjoinder of the parties but was also liable to be rejected under the provisions of under Order 7 Rule 11 read with Section 151 CPC as plaintiff who himself was residing in a flat having unauthorized construction had no cause of action in his favour to seek any protection there of against the defendants and accordingly, the issue no. 3 is decided in favour of the defendant no. 2 and against the plaintiff.
Suit no. 2587/08 Inderjeet Singh vs MCD/DDA Page No. 16/15 Relief :
23.In view of my findings on the issue no. 1 to 3 above, the plaintiff is not entitled to any of the reliefs claimed in the present suit. Hence, the suit of the plaintiff is hereby dismissed with no order as to cost.
24.Decree sheet be prepared accordingly.
25.File be consigned to Record Room.
Announced in the open Court Today 27th July, 2012.
(LOKESH KUMAR SHARMA) JSCCCumASCJCum GUARDIAN JUDGE (West) 27.07.2012 Suit no. 2587/08 Inderjeet Singh vs MCD/DDA Page No. 16/16