Delhi District Court
Smt. Bimlesh vs Smt. Raj Dulari on 4 December, 2014
IN THE COURT OF SHRI DHARMENDER RANA :
ADDITIONAL SENIOR CIVIL JUDGE : JSCC : GUARDIAN JUDGE,
KARKARDOOMA COURTS (EAST)
Suit No. 276/11
Unique Case ID No. 02402C0237612011
Smt. Bimlesh
w/o Sh. Kailash Chand
R/o House No.341, Teliwara,
Shahdara, Delhi110032.
.......... Plaintiff
VERSUS
1. Smt. Raj Dulari
w/o Sh. Basant Lal Dua
r/o House No. 340, Teliwara
Shahdara, Delhi110032.
Also at:
27/96, Near Amar Ashram,
Jwala Nagar, Shahdara,
Delhi110032.
2. Lucky Builders
r/o D78, Old Tezab Mill,
Behind Lal Bakery,
Shahdara, Delhi110032.
3. M.C.D.
Through its Dy. Commissioner,
MCD Building Department,
Shahdara (S) Zone, Delhi.
......... Defendants
Date of institution of the suit : 20.09.2011
Date on which order was reserved: 01.12.2014
Date of decision : 04.12.2014
SUIT FOR PERMANENT INJUNCTION, MANDATORY INJUNCTION AND
DAMAGES.
JUDGMENT
The brief facts of the case are that plaintiff filed a suit against the defendants for permanent injunction, mandatory injunction and damages. The case of the plaintiff is that the plaintiff is a resident of property bearing no. 341, Teliwara, Shahdara, Delhi110032 and the defendant no.1 is also residing adjacent to the property of the plaintiff. It is averred that defendant no.1 has started illegal and unauthorized construction, without approval of the building site plan, in the property belonging to the defendant no.1. It is further averred that on 14.08.2011, wall of the 3 rd floor of the property of defendant no.1 had fallen over the roof of the plaintiff, due to this the plaintiff has suffered a loss of Rs. 1 Lakh as the roof of her premises has broken and is leaking during rainy season. The articles lying in the room were also alleged to have been damaged. Defendant no.2 is a property dealer, who carried out the impugned construction for defendant no.1, and threatened the plaintiff to face dire consequences, if plaintiff initiated any legal action against them. A legal notice dated 20.08.2011 was served upon the defendants, but in vain. The illegal and unauthorized was also reported to defendant no.3 by the plaintiff vide her complaint dated 17.08.2011 and plaintiff requested MCD officials to demolish the unauthorized construction. However, upon failure of the defendants to respond, the plaintiff has now filed the suit for permanent and mandatory injunction as well as for damages of Rs. 1,50,000/.
2. Defendant no.1 & 2 have filed a joint written statement. It is stated by them that the suit of the plaintiff is not maintainable as the same has been filed without any cause of action. It is stated that defendant no.1 has renovated the property as the same was too old. It is averred that the plaintiff is a lady of quarrelsome nature and she wants to extort money from the defendants. It is admitted that the wall of property of defendant no.1 had fallen but it is claimed that plaintiff pushed it. It is further claimed that since the property of defendant no.1 was merely of 28 sq. yards thus, anyone could have constructed/renovated these type of small properties without the permission of MCD. The defendants denied all the averments made in the plaint of the plaintiff.
3. It would be pertinent to mention here that the plaintiff has described defendant no. 2 as 'Lucky Builders' and has never bothered to clarify whether 'Lucky Builders' is a separate legal entity or not. However, defendant no.2 in the witness box, while testifying as DW2, has clarified in his affidavit of examinationinchief Ex. DW2/A that his name is Amarjeet Singh @ Lucky and he is defendant no.2 in the instant case.
4. Defendant no.3 has filed a separate Written Statement wherein it is stated that suit is barred U/s 477 & 478 of the DMC Act for want of Statutory Notice. It is averred that the suit is not maintainable and is without any cause of action. It is stated that the property of the defendant no.1 was inspected on 14.11.2011 and during inspection, it was found that there is unauthorized construction over the property in question. A notice was served upon defendant no.1. It is averred that further action shall be taken against unauthorized construction in due course, under the provisions of the DMC Act. The averments of the plaint have been denied.
5. Replication was filed by the plaintiff qua the written statement of defendants wherein plaintiff denied the contentions raised by defendants. Plaintiff has further reiterated and reaffirmed the averments as made in the plaint.
6. After the completion of pleadings, my Ld. Predecessor framed the following issues:
1. Whether the plaintiff is entitled for permanent injunction as claimed for? (OPP)
2. Whether the plaintiff is entitled for mandatory injunction as claimed for? (OPP)
3. Whether the plaintiff is entitled for damages of Rs. 1.5 Lac from the defendant no. 1 & 2? (OPP)
4. Relief.
7. Plaintiff has testified as PW1 and relied upon the documents Mark PW1/Mark A, PW1/Mark B and PW1/Mark C. Plaintiff also relied upon the documents Ex. PW1/1, PW1/5 to PW1/14. Defendants no.1 and 2 have examined two witnesses namely Raj Dulari; defendant no.1 and DW2 Sh. Amarjeet Singh. None of the defence witness relied upon any document. They have solely relied upon the oral testimony. Defendant no.3 has not led any evidence.
8. My issuewise findings are here as under: Issue no.1 Whether the plaintiff is entitled for relief of permanent injunction as claimed for ? OPP
9. Plaintiff is seeking to restrain defendant no.1 and 2 from raising illegal and unauthorized construction over the suit property.
10. The relevant provision i.e. section 332 of The Delhi Municipal Corporation Act, 1957 (hereinafter referred to as DMC Act) is reproduced herein as under : "No person shall erect or commence to erect any building or execute any of the works specified in section 334, except with the prior 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."
11. From the bare perusal of the statutory provision, it is evident that no person shall commence to raise any construction without seeking prior sanction of the Commissioner.
12. It is admitted by defendant no.1 Ms. Raj Dulari in her cross examination that she has not got sanctioned any building plan from MCD for constructing the house. Even defendant no.3 (MCD) in its written statement has claimed that on 14.11.2011, upon inspection it was noticed that defendant no.2 has raised unauthorized construction in shape of ground floor to third floor which was booked vide file no. 88/B/UC/SH. (S)/11 dated 14.11.2011. Even a show cause notice was served upon defendant no.1. Thus I have no hesitation in holding that in the absence of statutory prior sanction as required u/s 332 DMC Act, defendant no.1 and 2 are not competent to raise any construction over the suit property and plaintiff is entitled for permanent injunction against the defendants. Issue no.1 is decided in favour of the plaintiff and against the defendants. Issue no.2 Whether the plaintiff is entitled for mandatory injunction as claimed for ? OPP
13. In the case at hand, the plaintiff is seeking the relief of mandatory injunction directing the defendant no.3 to demolish the illegal and unauthorized construction over the suit property, more specifically shown in red colour in the site plan Ex. PW1/1. In order to succeed, plaintiff was required to prove the following things :
(i) Defendant no.1 and 2 had carried out illegal and unauthorized construction in the suit property.
(ii) The extent of unauthorized construction.
14. The plaintiff has categorically testified in her testimony that defendant no.1 carried out illegal and unauthorized construction upon the suit property without any sanctioned site plan. Defendant no.1, in her cross examination, has admitted that no prior sanction, as required u/s 332 of the DMC Act, was procured by her before commencing with the construction. However, she has attempted to resist the claim of the plaintiff by pleading that she had merely carried out repairs in the suit property and as such no prior sanction was required u/s 332 of DMC Act for carrying out repairs. However, the plea of the defendant does not sounds to be convincing and sustainable for the following reasons:
(a) The plaintiff in her testimony has categorically testified that the defendant no.1 is raising illegal and unauthorized construction without sanctioned site plan. Defendant has herself admitted that no such prior sanction was procured by her. Defendant no.1 and 2, in their joint written statement, have invariably used the word "newly construction/renovation". There is no categorical assertion in the pleadings that defendant no.1 and 2 were simply carrying out repairs. Rather the defendants have attempted to create confusion, rather than clarifying, by using words "newly construction/renovation". In these circumstances, it was incumbent upon the defendant no.1 and 2 to lead credible evidence to prove that defendant no.1 was merely carrying out repairs in the suit property. No such credible evidence, except for bare assertions, has been led by the defendant in the instant matter. Rather, to the contrary a suggestion was put to the plaintiff by defendant no.1 and 2 in her cross examination that a quarrel ensued when the defendant started to construct the first floor of the suit property.
(b) The defendant no.1 and 2 have themselves admitted that the wall of the defendant's property had fallen upon the roof of the plaintiff. The claim of defendant no.1 and 2 is that plaintiff, with a malafide intention, pushed the wall of the defendant no.1. Be that as it may, the falling of the wall of the suit property over the roof of the plaintiff is not disputed. And to make any alteration or repairs to a building involving the removal or reerection of any external or party wall thereof or of any wall which supports the roof thereof to an extent exceeding one half of such wall above the plinth level, requires the owner of the property, who intends to execute such work, to apply for sanction by giving notice in writing of his intention to the commissioner u/s 334 of the DMC Act. Admittedly no such notice was served in the instant matter.
(c) The photographs PW1/mark B and PW1/mark C conclusively establishes mammoth fresh construction in the suit property. A suggestion has been put to the plaintiff by counsel for defendant no.1 and 2 that the photographs mark PW1/mark B and PW1/mark C does not show the roof of the plaintiff but the defendant no.1 and 2 had stopped short of putting any suggestion to the plaintiff that the said photographs do not show illegal and unauthorized construction raised by defendant no.1. The testimony of the plaintiff that the photographs PW1/mark B and PW1/mark C show illegal and unauthorized construction raised by defendant no.1 has remained unchallenged and uncontroverted on record.
(d) MCD (defendant no.3) in their written statement have categorically asserted that suit property has been inspected by the officers of MCD on 14.11.2011 and during the inspection it has been noticed that the defendant no.2 has raised the unauthorized construction in shape of ground floor to third floor which was booked vide file no. 88/B/UC/SH. (S)/11 dated 14.11.2011. Even a show cause notice was served upon defendant no.1. Admittedly, neither MCD nor plaintiff has bothered to bring this fact on record by leading any evidence. However, the counsel for MCD has specifically put a suggestion to plaintiff that MCD has booked the property and initiated action in the form of booking the suit property. The plaintiff has expressed her ignorance to the factum of initiation of any action by the defendant no.3 against defendant no.1 and 2. MCD is also silent about the fate of the action initiated by MCD under the provisions of DMC Act. But from the suggestion of the counsel for defendant no.3 it can be safely inferred that it was not a case of simple repairs as there was no requirement of initiation of any action or booking the property for illegal and unauthorized construction.
15. Weighing the rival claims of the plaintiff and the defendant upon the scale of prepondrence of probability the plea of the defendant no.1 and 2 that they were simply carrying out repairs seems to be mendacious and deserves to be discarded. Once it is established that the defendant no.1 and 2 had carried out construction in the suit property without procuring any prior sanction the same tantamount to illegal and unauthorized construction in violation of section 332 of the DMC Act.
16. Now I move on to the second component of the issue regarding the extent of unauthorized construction carried out in the suit property.
17. Admittedly, upon a cursory glance of the plaintiff's evidence it appears that the plaintiff has not explicitly described the extent of the illegal and unauthorized construction carried out by defendant no.1. In her testimony, she has simply testified that defendant no.1 started illegal and unauthorized construction without sanction plan and succeeded to raise illegal construction upto second floor. She further went on to testify that on 14.08.2011 the wall of third floor of the suit property fell upon her roof. Yet she had failed to elaborate as to how many floors in the suit property were already in existence and how many of them were tainted as unauthorized. However, the plaintiff has placed on record the site plan Ex. PW1/1 and the above mentioned photographs PW1/mark B and PW1/mark C. The photographs PW1/mark C reveals that fresh construction was carried out upon the ground floor of the suit property. Even the site plan Ex. PW1/1 reveals that the under construction portion of the property was from ground floor to third floor. Once it is established that the ground floor was unauthorized for want of sanction u/s 332 of the DMC Act anything constructed thereupon automatically becomes illegal and unauthorized.
18. Thus I have no hesitation in holding that the plaintiff has successfully proved on a scale of balance of prepondrence of probability that defendant no.1 and 2 have raised illegal and unauthorized construction upon the suit property and the issue no.2 is accordingly decided in favour of the plaintiff and against the defendants. Issue no.3 Whether the plaintiff is entitled for damages of Rs. 1.5 Lac from the defendant no.1 & 2? (OPP)
19. The onus to prove this issue was placed upon the plaintiff. However, plaintiff has failed to lead any evidence to prove the quantum of loss. She has simply testified that the wall of third floor of defendant no.1 had fallen over her roof which caused damages to her roof. Photograph PW1/mark B also reveals some fresh bricks alongwith construction material lying upon the roof of the plaintiff. However, that by itself is not sufficient to prove the quantum of damages sustained by the plaintiff justifying the claim of a sum of Rs.1.5 lakhs from the defendants.
20. Having said that I cannot travel any further with the arguments of the Ld. Defendant's counsel that the plaintiff is not at all entitled for recovery of any damages. The court can take judicial notice of the fact that it must have consumed precious time, labour and financial expenditure on the part of the plaintiff to approach the court for redressal of her grievances against the defendants. Thus I am of the opinion that plaintiff ought to be compensated for the consumed time, labour and the financial expenditure incurred by her attributable directly to the acts/ negligence / indolence on the part of the defendants. Thus I am of the opinion that a sum of Rs.10,000/ be also awarded to the plaintiff on account of the abovesaid damages sustained by her.
21. This court is of the considered opinion that the liability to pay the compensation amount to the plaintiff by the defendants is joint and several as the plaintiff would not have sustained any loss but for the act of the defendant no.1 and 2 or negligence/omission of defendant no.3. Issue no.3 is accordingly decided in favour of the plaintiff and against the defendants.
22. Before parting, this court is constrained to bring its anguish on record regarding the inscrutable indolence on the part of the MCD officials. Perusal of the record reveals that MCD has categorically pleaded in their written statement that the impugned unauthorized construction was booked by them on 14.11.2011 itself. The record is silent as to why MCD officials have failed to demolish the impugned unauthorized construction or in the alternative, if the same was already demolished, why the fact was not brought to the notice of the court. Interest republicae ut sit finis litium i.e. it is always in the interest of the State to put an end to the litigation. Unnecessary litigations not only adds to the burden of the overflowing dockets of the court but also tends to diminish the efficacy of law.
23. In the case at hand, plaintiff was dragged into an unnecessary litigation merely on account of the indolence of MCD officials. The duty of the MCD officers to check the menace of unauthorized and illegal construction arises independently from the provisions of DMC Act 1957 viz section 343, 344, 345 A, de hors any complaint from the citizens. There is no material available on record to suggest that there was any legal impediment impeding the discharge of the functions assigned to the worthy commissioner MCD under the provisions of DMC Act 1957 to remove the unauthorized construction. Furthermore, it has been established on record that defendant no.1 and 2 have successfully raised enormous illegal and unauthorized construction from ground floor to third floor atleast. The very extent of the unauthorized construction carried out in the instant matter leads to an irresistible inference of carelessness or collusion on the part of responsible officers of the MCD. MCD officers were quite conscious of the fact that defendant no.1 and 2 were raising illegal construction and yet they have vexatiously pleaded that the suit of the plaintiff ought to be dismissed with heavy costs. The grievances of the plaintiff could have been addressed by MCD officers right at the very inception and an unnecessary litigation could have been avoided, atleast, to the extent of the relief of permanent and mandatory injunction. The MCD officers instead of acting have frivolously and vexatiously resisted the claim of the plaintiff.
24. The courts of this country owe a duty to deliver expeditious justice to the society. Society has a legitimate right to be compensated against any wanton act or omission of the authorities which impedes the expeditious flow of justice. The State machinery involved in the administration of justice has been unnecessarily burdened with a litigation which was foisted upon it by the callousness or collusion of the MCD officials and society needs to be compensated for that. Hon'ble Apex Court has directed the Trial Courts to impose realistic costs to check the menace of luxurious and frivolous litigation. Reliance is placed upon Maria Margadia Sequeria ... vs Erasmo Jack De Sequeria (D) ...date of decision 21 March, 2012 civil appeal no. 2968/2012, Ram Rameshwari Devi and others Vs. Nirmala Devi and others, civil appeal no. 49124913/2011, date of decision 04.07.2011.
25. Therefore, besides the above mentioned cost of Rs.10,000/, an additional cost of Rs.3000/ is also imposed upon commissioner EDMC (defendant no.3 erstwhile MCD), to be paid to DLSA, under section 35 A of CPC.
26. In these circumstances, copy of the instant judgment be sent to the worthy commissioner EDMC, who may, if desirable, initiate appropriate action against the delinquent officers. A copy of the instant judgment be also sent to Ld. Secretary DLSA (East), Karkardooma Courts, Delhi, who shall be at liberty to file appropriate execution for realization of cost, if required.
Relief.
13. The defendant no.1 and 2 are hereby restrained by way of permanent injunction not to carryout any illegal and unauthorized construction upon the suit property. Defendants are further hereby directed to remove / demolish the entire illegal and unauthorized construction over the suit property more specifically shown in the red colour in the site plan. The defendants are further held jointly and severally liable to pay a sum of Rs.10,000/ to the plaintiff. Costs of the suit are also awarded in favour of the plaintiff. Further, an additional cost of Rs.3000/ as aforesaid, is imposed upon Commissioner EDMC. Decree sheet be prepared accordingly.
Announced in the open court ( Dharmender Rana)
on this 04th day of December 2014. ASCJ/JSCC/G. Judge (East)
Karkardooma Courts, Delhi.