Delhi District Court
Uday Aggarwal vs Vrindawan Cooperative Group Housing ... on 21 September, 2019
IN THE COURT OF SUSHANT CHANGOTRA,
ADDITIONAL SENIOR CIVIL JUDGE (SHAHDARA)
KARKARDOOMA COURTS, DELHI
Case No. 1233/17
Uday Aggarwal
S/o Sh. Mukul Kumar
R/o A2, Silver Oak Apartment,
109, IP Extn., Patparganj,
Delhi110092.
...............Plaintiff
Versus
1. Vrindawan Cooperative Group Housing Society
Through its President
At 110, IP Extn., Patparganj,
Delhi110092.
2. Delhi Development Authority
Through its ViceChairman,
Vikas Sadan, INA, New Delhi.
3. East Delhi Municipal Corporation
Through its Commissioner,
419, Patparganj Industrial Area,
Patparganj, Delhi110092.
4. East Delhi Municipal Corporation
Through its Executive Engineer,
Vishwas Nagar, Karkardooma,
Shahdara, Delhi110032.
5. SHO
PS Madhu Vihar, Delhi110092
..............Defendants
Case No. 1233/17 Uday Aggarwal Vs. Vrindawan Cooperative Group Housing Society Page no. 1 of 10
SUIT FOR PERMANENT AND MANDATORY INJUNCTION
Date of Institution of the case : 08.11.2017
Date of pronouncement of judgment : 21.09.2019
JUDGMENT
1. The brief facts of the case of plaintiff as stated in the plaint are that plaintiff is residing at A2, Silver Oak Apartment, 109, IP Extn. Patparganj, Delhi alongwith his family. Defendant no. 1 society in collusion and connivance with the defendants no. 2 & 3 started illegal and unauthorized construction in the vacant space adjacent to the building in which the flat of plaintiff is situated. Defendant no. 1 society had encroached upon the vacant land for the purpose of raising unauthorized construction.
2. The aforesaid flat was allotted to father of the plaintiff. The vacant space adjacent to the flat of plaintiff where unauthorized construction is being carried out was meant to be kept open as part of the amenities provided to the residents of the society. No prior permission or any sanction has been obtained by defendant no. 1 from defendants no. 2 & 3 for raising the said construction. The said illegal and unauthorized construction is constant and continuous nuisance to the plaintiff as well as the other residents of the society and is adversely affecting day to day studies and health of plaintiff.
3. The said illegal and unauthorized construction shall obstruct the passage of sunlight and air to the flat of plaintiff which may have a negative effect on his health and that of his family members. Day to day nuisance is being created because of the said illegal construction. No right is vested in Case No. 1233/17 Uday Aggarwal Vs. Vrindawan Cooperative Group Housing Society Page no. 2 of 10 defendant no. 1 to carry out construction in the vacant space without the prior permission and sanction of defendants no. 2 & 3. Plaintiff gave complaint to the defendants no. 2 & 3, but no action was taken. Hence, plaintiff has filed the present suit and prayed for decree of permanent injunction for restraining the defendant no. 1 from raising any further construction on the suit land as shown in site plan. He has also prayed for decree of mandatory injunction for directing the defendants no. 2 to 5 to stop forthwith the illegal and unauthorized construction being raised by defendant no. 1.
4. Summons of the suit were served on all the defendants. Defendant no. 1 did not file written statement despite opportunities. Hence, its defence was stuck off vide order dated 18.10.2018. None had appeared for defendant no. 5/ SHO. Hence, defendant no 5 was proceeded exparte vide order dated 21.01.2019.
5. Defendants no. 3 & 4 filed written statement and took preliminary objections that the suit is not maintainable, plaintiff has suppressed material facts and suit is bad for misjoinder and nonjoinder of the necessary parties. The suit property was inspected on 28.11.2017 and during inspection, it was noticed that the unauthorized construction in the shape of unfinished structure at open space had been carried out and same has been booked vide booking file no. 298/B/UC/SH/17 dated 28.11.2017. The demolition order was passed on 01.01.2018 after following due process of law.
6. On merits, defendant no. 3 & 4 denied remaining averments of plaint and prayed that suit may be dismissed.
Case No. 1233/17 Uday Aggarwal Vs. Vrindawan Cooperative Group Housing Society Page no. 3 of 10
7. On completion of pleadings, following issues were framed:
i) Whether plaintiff is entitled to decree of permanent injunction as prayed for? OPP
(ii) Whether plaintiff is entitled to decree of mandatory injunction as prayed for? OPP
(iii) Whether suit is barred under section section 477/478 DMC Act? OPD3&4
(iv) Whether suit is bad for nonjoinder and misjoinder of parties? OPD3&4
(v) Relief.
8. In order to prove his case, plaintiff appeared as PW1. He tendered his affidavit Ex.PW1/A and also relied upon documents Ex. PW1/1 to Ex. PW1/5.
9. PW2 Sh. D. P Sharma, A.E Building Shahdara Zone, EDMC had proved proceeding related unauthorized construction booked vide filed no. 288/B/UC/SH/S/17 dated 20.11.2017 and the file related to unauthorized construction booked vide file no. 298/B/UC/SH/17 dated 28.11.2017 as Ex. PW2/1 and Ex. PW2/2. He also proved record relating to booking dated 28.11.2017 Ex. PW2/3. He further deposed that as per record, no appeal had been filed before ld. Appellate Tribunal, MCD challenging the demolition order passed in respect of bookings dated 20.11.2017 and 28.11.2017. Then, PE was closed on 18.07.2019.
10. The ld. Counsel for defendant EDMC closed DE without leading any Case No. 1233/17 Uday Aggarwal Vs. Vrindawan Cooperative Group Housing Society Page no. 4 of 10 evidence. Defence of defendant no. 1 had already been stuck off.
11. I have heard the arguments of ld. counsels for all the parties. I have also gone through the evidence on record very carefully. The issue wise findings are as follows: ISSUES NO. 1 & 2
12. Onus to prove both these issues was on the plaintiff. Both these issues are interconnected. The discussion of one issue will necessarily involve discussion of the other issue, therefore, I will take up the discussion of both these issues together.
13. The initial burden to prove his case rested on plaintiff. The defendant EDMC had pleaded and deposed that construction alleged to have carried out by defendant no. 1 is unauthorized and has been booked by EDMC, but it was also imperative on the part of plaintiff to establish his locus standi to institute the suit.
14. In the plaint, it has been pleaded that defendant no. 1 society had made unauthorized construction on the vacant land and thereby, the defendant is infringing the right of plaintiff as the construction will obstruct the passage of sunlight and air in the flat of plaintiff. Therefore, the plaintiff has pleaded a case that the alleged unauthorized construction is being carried in the property adjoining to his flat which is violating his easementary rights.
15. In Rajendra Motwani & Anr. Vs. MCD & Ors RSA no. 243/17 decided on 16.10.2017, it has been held that, "The second reason for rejecting Case No. 1233/17 Uday Aggarwal Vs. Vrindawan Cooperative Group Housing Society Page no. 5 of 10 the argument urged on behalf of the appellants/ plaintiffs is that 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 neighbour 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 neighbour. 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 a right to acquisition by prescription in the easementary rights. It is relevant to note that even after acquisition of easementary rights of prescription, yet, right to injunction for a neighbour is not absolute and is covered by Section 33 of the Easements Act which requires that disturbance to the easementary rights must actually cause substantial damage to a neighbour 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 neighbour of living in his own house or prevents the neighbour 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 Sections 15 and 33 of the Easements 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 appellants/ plaintiffs or the Case No. 1233/17 Uday Aggarwal Vs. Vrindawan Cooperative Group Housing Society Page no. 6 of 10 appellants/ plaintiffs being prevented from carrying on his accustomed business in their own dominant heritage/ own property."
16. In view of the aforementioned proposition of law, the plaintiff could institute the suit against violation of his easementary rights which were to fructify upon enjoyment of said rights of light and air for 20 or more years. The plaint is silent qua the period since when plaintiff is enjoying the right of free air and sunlight in the suit property.
17. The ld. Counsel for plaintiff had argued that plaintiff has proved his conveyance deed Ex. PW1/4 which shows that the plaintiff is in possession of suit property since 09.09.2004. It has to be borne in mind, the suit was filed on 07.11.2017 and even till date period of 20 years of enjoyment of free air and sunlight has not lapsed.
18. Therefore, even as per averments of plaint and evidence on record it is clear that there was no acquisition by prescription in the easementary rights qua which the suit has been filed.
19. The term cause of action has been defined by the Hon'ble Supreme Court in Rajasthan High Court Advocates Association V. Union of India & ors, 2001 (2) SCC 294. The Hon'ble Supreme Court observed that, "The expression cause of action has acquired a judicially settled meaning. In the restricted sense cause of action means the circumstances forming the infraction of the right or the immediate occasion for the action. In the wider sense it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but the infraction coupled with Case No. 1233/17 Uday Aggarwal Vs. Vrindawan Cooperative Group Housing Society Page no. 7 of 10 the right itself. Compendiously the expression means every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court."
20. Therefore, in view of the aforementioned discussion, since the plaintiff did not have easementary right, therefore, there was no cause of action for the plaintiff to institute the present suit.
Accordingly, both these issues are decided against the plaintiff.
ISSUE NO. 321. Onus to prove this issue was on defendant EDMC. Defendant EDMC has not led any evidence on record to establish. Section 477 and 478 DMC Act are reproduced below: "Section 477 of DMC Act: Protection of action of a Corporation No suit or prosecution shall be entertained in any court against a 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 byelaw made thereunder."
"Section 478: Notice to be given of suits: (1) No suit shall be instituted 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 Case No. 1233/17 Uday Aggarwal Vs. Vrindawan Cooperative Group Housing Society Page no. 8 of 10 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 byelaw 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 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 subsection (1), shall, unless it is a suit for the recovery of immovable property or for a determination of title thereto, be instituted after the expiry of six months from the date on which the cause of action arises.
(3) Nothing in subsection (1) shall be deemed to apply to a suit in which the only relief 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."
22. The present suit is for permanent injunction and it is covered within Section 478 (3) of DMC Act. Therefore, this issue is decided against the defendant EDMC.
ISSUE NO. 423. Onus to prove this issue was also on defendant EDMC. Defendant Case No. 1233/17 Uday Aggarwal Vs. Vrindawan Cooperative Group Housing Society Page no. 9 of 10 EDMC has not lead any evidence to prove this issue. Accordingly, this issue is also decided against the defendant EDMC.
RELIEF
24. In view of the findings given on issues no. 1 & 2, the suit of plaintiff is dismissed with costs. Decree sheet be prepared. File be consigned to record Digitally signed room after due compliance. by SUSHANT SUSHANT CHANGOTRA CHANGOTRA Date: 2019.09.21 16:04:33 +0530 (Announced in the open court) (SUSHANT CHANGOTRA) 21st September, 2019 ASCJ (SHAHDARA)/ KKD Case No. 1233/17 Uday Aggarwal Vs. Vrindawan Cooperative Group Housing Society Page no. 10 of 10