Delhi District Court
Sh. Luv Kumar vs Yoginder @ Kalu on 31 August, 2016
IN THE COURT OF GAURAV RAO, SENIOR CIVIL JUDGE CUM
RENT CONTROLLER ( SOUTH EAST), DISTRICT COURTS,
SAKET, NEW DELHI
CS No: 51902/2016
CNR No. DL SE030011772015
Sh. Luv Kumar
S/o Sh. S. P. Kumar,
R/o A172 DDA Double Storey Flats, Garhi
New Delhi - 65. ....Plaintiff
Versus
1.Yoginder @ Kalu R/o A173, DDA Double Storey Flats, Garhi, New Delhi - 65.
2. Tilak @ Golu R/o A - 171, DDA Double Storey Flats, Garhi, New Delhi 25.
3. MCD Central Zone Lajpat Nagar, New Delhi - 110024 ....Defendants Date of institution of suit : 09.12.2015 Date on which Judgment reserved : 31.08.2016 Date on which judgment pronounced : 31.08.2016 Decision : Suit decreed CS No. 51902/16 Luv Kumar Vs. Yoginder and ors 1/24 J U D G M E N T
1. The present suit for permanent and mandatory injunction has been filed by the plaintiff seeking to restrain the defendants, their heirs, assigns, agent, servant, administrators and representatives from encroaching upon and raising illegal construction on government land. Plaint
2. It is the case of the plaintiff that he is a permanent resident of property bearing no. A172, DDA Double Storey Flats, Garhi, New Delhi110065 and residing therein since its purchase in 1991. It is further his case that he is the absolute owner in possession of the said property. 2.1 It is further the plaintiff's case that with the passage of time defendant no. 1 and 2 have illegally encroached upon government land i.e. road in front of his house (hereinafter referred to as suit property) and have started raising illegal/unauthorized construction in the suit property. 2.2 It is further the plaintiff's case that he asked defendant no. 1 and 2 to stop illegal construction but they failed to do so and having no other CS No. 51902/16 Luv Kumar Vs. Yoginder and ors 2/24 remedy available with him, he made a complaint to PCR at 100 number and MCD to stop the illegal construction.
2.3 It is further the plaintiff's case that on 28.11.2015 when the PCR came to the suit property, defendant no. 1 and 2 stopped the construction for few hours and after that they again started raising the illegal construction. 2.4 It is further the plaintiff's case that the illegal construction is still going on and if defendant no. 1 and 2 are not restrained from carrying on the illegal and unauthorized construction it shall cause irreparable loss and injury to the plaintiff. Hence the present suit.
3. The defendants appeared pursuant to summons and filed their respective separate written statements.
Written Statement of defendants no. 1 and 2 .
4. In the Written Statement filed by defendant no. 1 and 2 preliminary objections were taken that the suit is not maintainable being frivolous, vexatious and misconceived and the same is nothing but an abuse CS No. 51902/16 Luv Kumar Vs. Yoginder and ors 3/24 of the process of law and is liable to be dismissed.
4.1 It was pleaded that the plaintiff has not approached the court with clean hands and has suppressed material and important facts. 4.2 On merits it was pleaded that the plaintiff who is the neighbour of defendant no. 1 and 2 has himself illegally and unauthorizedly constructed second floor over his property bearing no. A172, Garhi without any sanction and permission from the competent authority and therefore is liable to be demolished.
4.3 It was further pleaded that the plaintiff is not the absolute owner of property bearing no. A172 nor did he purchase the property in 1991.
4.4 It was further pleaded that suit property was already a built up property, more than 20 years old and since its roof was built up with stone tookries and being an old construction roof started leaking therefore, defendant no. 1 was only doing repair work as his old parents are residing in it however same was demolished by MCD. It was further pleaded that defendant no. 2 has nothing to do with the suit property.
CS No. 51902/16 Luv Kumar Vs. Yoginder and ors 4/24 4.5 It was denied that the defendants have raised any illegal or
unauthorized construction after encroaching the main road in front of plaintiff's house. It was pleaded that only repair work was being done and the plaintiff who is an extortionist has levied false allegations against the defendant.
Written Statement of defendant no. 3.
5. Defendant no. 3 filed its Written Statement through Executive Engineer Sh. Ashok Kumar. In the Written Statement defendant no. 3 took a preliminary objection that the suit is barred by provision under section 477 and 478 of DMC Act for want of service of statutory notice and hence same is liable to be dismissed on this ground. It was pleaded that suit does not disclose any cause of action and hence is liable to be rejected. 5.1 On merits it was pleaded that on receipt of complaint regarding encroachment on public land made by the owner of property no. A - 173, DDA Double Storey, Garhi an inspection was done by field staff and it was found that owner has made encroachment on lane by constructing a room CS No. 51902/16 Luv Kumar Vs. Yoginder and ors 5/24 and accordingly the department fixed the encroachment removal programme and encroachment removal action was taken on 07.01.2016 with the help of police force and during the encroachment removal action the wall of room and parapet wall was demolished.
Issues
6. On the basis of the pleadings of the parties following issues were framed vide orders dated 04.03.2016:
1. Whether plaintiff is entitled to decree of permanent injunction? OPP
2. Whether plaintiff is entitled to decree of mandatory injunction?
OPP
3. Relief.
Evidence Plaintiff's evidence
7. In order to prove his case plaintiff examined himself as PW1. He tendered his evidence by way of affidavit as Ex. PW1/A and relied upon the following documents:
(a) photographs of suit property as Ex. PW1/B to Ex. PW1/D,
(b) copy of complaint made to DC, SDMC dated 30.11.2015 as Ex.
CS No. 51902/16 Luv Kumar Vs. Yoginder and ors 6/24
PW1/E,
(c) copy of complaint made to Central Zone, Lajpat Nagar dated 30.11.2015 as Ex. PW1/F,
(d) copy of complaint to Mayor, Central Zone as Mark A,
(e) copy of complaint to LG as Mark B,
(f) copy of complaint made to Chief Minister as Mark C,
(g) copy of complaint made to SDMC, Civic Centre as Mark D,
(h) photographs of current status of suit property as Mark E. Defendant's evidence 7.1. As against this defendant no. 1 led his evidence and examined himself as DW1 and tendered his evidence as Ex. DW1/A. 7.2 Defendants no. 2 and 3 opted not to lead any evidence despite opportunity given.
Findings
8. I have heard the Ld. counsel for parties, have given due consideration to the rival contentions raised at bar and have carefully gone through the record.
CS No. 51902/16 Luv Kumar Vs. Yoginder and ors 7/24 8.1 My issue wise finding is as under:
Issue no. 2. Whether plaintiff is entitled to decree of mandatory injunction? OPP 8.2 Though the above issue was framed vide proceedings dated 04.03.2016 however the plaint and especially the prayer clause would reveal that no relief of mandatory injunction or any direction has been sought by the plaintiff against either of the defendants. The only relief sought is to restrain defendants from encroaching upon government land and from raising illegal and unauthorized construction on the same for which relief issue no. 1 was framed. Therefore no relief by way of mandatory injunction being sought, issue no. 2 stands deleted/striked out in terms of Order XIV Rule 5 CPC.
Issue no. 1 Whether plaintiff is entitled to decree of permanent injunction? OPP 8.3 In brief the case of plaintiff is that the defendant no. 1 and 2 have encroached upon the suit property i.e. government land, main road in front of his property bearing no. A172 and are raising unauthorized construction over the same. To prove the factum of encroachment and unauthorized construction on the suit property/ government land the CS No. 51902/16 Luv Kumar Vs. Yoginder and ors 8/24 plaintiff relied upon photographs Ex.PW1/B to D, Mark E and complaints lodged with various authorities as Ex. PW1/E to F, Mark A to D. From the evidence led by the plaintiff and the documents i.e. photographs and complaints as above its stands squarely established that defendant no. 1 and 2 have not only encroached upon government land/road/passage but have also raised unauthorized and illegal construction upon the same i.e. without obtaining any sanction plan or permission.
8.4 The plaintiff categorically proved on record that the suit property is in fact a government land and not owned by defendant no. 1. During his testimony/in his affidavit Ex. PW1/A the plaintiff had categorically stated that the suit property is a government land. Defendant no. 1 and 2 could not controvert the said claim of the plaintiff. They could not produce on record any documents bestowing any right, title or ownership in the suit property in them. In fact during his cross examination DW1 stated as "There is no separate municipal number etc. of the said room and it is identified as room across flat no. A173. There is no electricity or water connection in the said room. I had purchased the flat around 34 years back from my cousin Jitender. I am having the papers of the flat in question and also can produce the same. The flat in question was purchased in my name. The documents vide which I had purchased the flat in question contain no CS No. 51902/16 Luv Kumar Vs. Yoginder and ors 9/24 reference to the room as visible in Ex. PW1/B. It is correct that I have no document vide which I had purchased the room in question from anyone............I have not placed any document of ownership of the flat in question. Therefore defendant no. 1 could not prove his right or title over the suit property or in what capacity the construction as is visible in the photographs is being raised.
8.5 Though no doubt he denied raising any construction and claimed that the construction was raised by defendant no. 2 however the said stand of defendant no. 1 is contrary to the stand taken in the WS wherein factum of construction was admitted though it was claimed that only permissible repair work was being carried out which is in fact is not the case and it is a full fledge unauthorized construction. The photographs filed on record coupled with the written statement of defendant no. 3 leaves no doubt that it was not mere repair work but altogether a fresh construction which was being raised in the form of roof, stairs, balcony etc. 8.6 Not only defendant no. 1 could not prove any title document in respect of suit property but during his cross examination by Ld. Counsel for defendant no.3 he went on to state "I cannot say whether the room in CS No. 51902/16 Luv Kumar Vs. Yoginder and ors 10/24 question is encroachment on government land." This evasive reply/statement in the cross examination speaks a lot and is sufficient proof of the allegations levied by the plaintiff that the suit property is a government land which has been encroached by the defendants. 8.7 Though defendant no. 2 had filed joint WS along with defendant no. 1 wherein as already discussed above it was denied that any construction was raised and it was claimed that only minor repair works were being carried out however once defendant no. 1 during his cross examination stated that the construction in question was being raised by defendant no. 2 it became incumbent upon defendant no. 2 to cross examine defendant no. 1. Defendant no. 1 had stated that "the construction as is visible at point X in Ex. PW1/B has been raised by Tilak Raj i.e. defendant no. 2". However for reasons best known to Ld. Counsel for defendant no. 2 neither any cross examination of defendant no. 1 was conducted on this point nor any evidence in rebuttal was led by defendant no. 2. Hence the claim of defendant no. 1 that construction was raised by defendant no. 2 has remained unchallegned and unrebutted. Considering the entire factual matrix of the case and most importantly the fact that a joint written statement was filed by defendant no. 1 and 2 I have no doubt that the defendant no. 1 and 2 in collusion with each other have not only encroached CS No. 51902/16 Luv Kumar Vs. Yoginder and ors 11/24 upon the suit property but have also raised illegal construction as is visible in the photographs i.e. room with balcony, stairs and a fencing with the iron grill thereby keeping the enclosed property out of bounds of general public who have a right to use the same as it is a government land/road/passage. 8.8 During the course of arguments Ld. Counsel for defendant no. 1 and 2 had vehemently argued that the plaintiff himself has not approached the court with clean hands, is also guilty of suppression of material facts and therefore he is not entitled to the discretionary relief of injunction. It was argued that the plaintiff could not prove that he is the owner of property no. A172 despite claiming to be the absolute owner in possession of the same and in fact in the cross examination admitted that his father is the owner of the same. It was also argued that the said property could not have been purchased by the plaintiff or his father as it is a government property. Furthermore it was argued that he (plaintiff) himself has raised illegal construction in the form of a room/second floor over property no. A172 and therefore his conduct being wrong he is not entitled to the equitable relief. However I do not find merits in either of the contentions of Ld. Counsel for defendant no. 1 and 2.
8.9 As far as the arguments that the plaintiff could not prove CS No. 51902/16 Luv Kumar Vs. Yoginder and ors 12/24
ownership of property no. A172 is concerned no doubt the plaintiff could not prove his ownership in respect of property no. A172 however the present suit being simplicitor for permanent injunction to restrain the defendants from raising unauthorized construction it was not incumbent upon the plaintiff to establish his ownership in respect of property no. A172 or for that matter his father's ownership. The suit being filed seeking the relief of injunction simplicitor the court would not hold a roving inquiry into the title of the parties. Ownership is irrelevant to the matter in controversy. Admittedly the plaintiff is the neighbor of the defendant and the suit property is situated in front of the house of plaintiff. The law is well settled that the neighbor whose rights are affected due to unauthorized construction can file a civil suit for restraining the unauthorized construction. It is the right of every citizen to see that building bylaws are followed and unauthorized constructions are not carried out in the neighborhood as same causes civil problems for the entire neighborhood and affects the material rights of the neighborers. The suit property as discussed above being a government land/road/passage the plaintiff who is a neighbor is directly affected by unauthorized construction and therefore definitely has a right to maintain the present suit irrespective whether he is the owner of the property no. A172 or not. Reliance may be placed upon the law laid down in Onkar Nath, Petitioner Vs. Ram Nath Gupta, AIR 1985 Delhi 293 , CS No. 51902/16 Luv Kumar Vs. Yoginder and ors 13/24 Krishna Kali Mallik Vs. Babu Lal Shaw, AIR 1965 Cal 148 and Smt. And Lhamu Vs. Smt. Ladena, AIR 1983 Sikkim 5. As far as the arguments that the property could not be owned/purchased by the plaintiff or his father as it is a government property are concerned suffice would be to say that defendants could not prove the same and it remained mere bald arguments. Furthermore defendant no. 1 too claimed to have purchased the adjoining property i.e. the property wherein he is residing from his cousin Jitender. The status of his property and that of plaintiff cannot be different i.e. if the plaintiff or his father could not have purchased the same even the defendant no. 1 could not have done so. Therefore he cannot be allowed to blow hot and cold at the same time or probate and approbate at the same time. 8.10 As far as arguments that the plaintiff himself has raised unauthorized construction therefore is not entitled to the equitable discretionary relief is concerned firstly, the defendants could not prove the nature and extent of the unauthorized construction so allegedly raised by the plaintiff. No photographs, no complaints to the police or the local authorities could be proved in this regard by the defendants. They did not even bother to examine anybody from the municipality/MCD to prove their claims of unauthorized construction raised by the plaintiff. No doubt the plaintiff admitted during his cross examination that he/his father have constructed a CS No. 51902/16 Luv Kumar Vs. Yoginder and ors 14/24 small room over the second floor but the defendants could not establish that the said construction was unauthorized and illegal. Secondly, even the date of alleged unauthorized construction was not given in the Written Statement or during the cross examination. Hence it is not clear whether the same is an old construction and thus protected or a new one. Thirdly, even if it is agreed that the plaintiff has raised certain unauthorized construction over his property that by itself does not disentitle the plaintiff from seeking the relief prayed for or renders his suit liable to be dismissed. No doubt the law is well settled that a person who seeks equity, must do equity and that a person who seeks equitable relief must come with clean hands and act in a equitable and fair manner. 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". Reliance may be placed upon the law laid down in Canara Bank and Ors. v. Debasis Das and Ors AIR 2003 SCW 1561, M/s Seemax Construction (P) Ltd. v. State Bank of India , AIR 1992 Delhi 197, Mahabir Prasad Jain v. Ganga Singh , AIR 1999 SC 3873, Kimti Lal Rahi v. Union of India , AIR 1993 Delhi 211 and Champa Arora & Ors. vs. Shiv Lal Arora & Ors . 2001 VII AD (Delhi) 602.
Thus
CS No. 51902/16 Luv Kumar Vs. Yoginder and ors 15/24
the law is well settled that the person who himself is guilty of a wrongdoing or misconduct or has not approached the court with clean hands is not entitled to the discretionary relief of injunction as a matter of right however, the court may in the given facts and circumstances of a case may still exercise the discretion in favour of that person to curb the larger evil. Fifthly, merely because the plaintiff has raised some unauthorized construction it does not give the defendants right to encroach upon government land and raise illegal construction upon the same. There cannot be any equality in violation of laws. Unauthorized construction is a menace. At this stage it will be pertinent to highlight the observations made by Hon. Apex Court in Dipak Kumar Mukherjee Vs. Kolkata Municipal Corporation and ors decided on 08.10.2012 wherein it has been held as under: "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 creates traffic congestion. Therefore, it is imperative for the concerned public authorities not only to demolish such construction but also impose adequate penalty on the wrongdoer. In last four decades, the menace of illegal and unauthorised constructions of buildings and other structures in different parts of the country has acquired monstrous proportion. This Court has repeatedly emphasized the importance of planned development of the cities and either approved the orders passed by the High Court or itself gave directions for demolition of illegal constructions (1) K. Ramadas Shenoy v. Chief Officers, Town Municipal Council (1974) 2 SCC 506; (2) Virender Gaur v. State of Haryana (1995) 2 SCC 577; (3) Pleasant Stay Hotel v.
CS No. 51902/16 Luv Kumar Vs. Yoginder and ors 16/24 Palani Hills Conservation Council (1995) 6 SCC 127; (4) Cantonment Board, Jabalpur v. S.N. Awasthi 1995 Supp.(4) SCC 595; (5) Pratibha Coop. Housing Society Ltd. v. State of Maharashtra (1991) 3 SCC 341; (6) G.N. Khajuria (Dr) v. Delhi Development Authority (1995) 5 SCC 762; (7) Manju Bhatia v. New Delhi Municipal Council (1997) 6 SCC 370; (8) M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu (1999) 6 SCC 464; (9) Friends Colony Development Committee v. State of Orissa (2004) 8 SCC 733; (10) Shanti Sports Club v. Union of India (2009) 15 SCC 705 and (11) Priyanka Estates International Pvt. Ltd. v. State of Assam (2010) 2 SCC 27.
3. In K. Ramadas Shenoy v. Chief Officers, Town Municipal Council (supra), this Court observed as under: "An illegal construction of a cinema building materially affects the right to or enjoyment of the property by persons residing in the residential area. The Municipal Authorities owe a duty and obligation under the statute to see that the residential area is not spoilt by unauthorised construction....... The Court enforces the performance of statutory duty by public bodies as obligation to rate payers who have a legal right to demand compliance by a local authority with its duty to observe statutory rights alone. The Scheme here is for the benefit of the public. There is special interest in the performance of the duty. All the residents in the area have their personal interest in the performance of the duty. The special and substantial interest of the residents in the area is injured by the illegal construction............."
5. In Friends Colony Development Committee v. State of Orissa (supra), this Court noted that ........... Though the local authorities have the staff consisting of engineers and inspectors whose duty is to keep a watch on building activities and to promptly stop the illegal constructions or deviations coming up, they often fail in discharging their duty. Either they don't act or do not act promptly or do connive at such activities apparently for illegitimate considerations. If such activities are to stop some stringent actions are required to be taken by ruthlessly demolishing the illegal constructions and noncompoundable deviations.............
6. In Shanti Sports Club v. Union of India (supra), this Court approved the order of the Delhi High Court which had declared the construction of sports complex by the appellant on the land acquired for planned development of Delhi to be illegal and observed:
"In the last four decades, almost all cities, big or small, have seen unplanned growth. In the 21st century, the menace of illegal and unauthorised constructions and encroachments has acquired monstrous proportions and everyone has been CS No. 51902/16 Luv Kumar Vs. Yoginder and ors 17/24 paying heavy price for the same. Economically affluent people and those having support of the political and executive apparatus of the State have constructed buildings, commercial complexes, multiplexes, malls, etc. in blatant violation of the municipal and town planning laws, master plans, zonal development plans and even the sanctioned building plans. In most of the cases of illegal or unauthorised constructions, the officers of the municipal and other regulatory bodies turn blind eye either due to the influence of higher functionaries of the State or other extraneous reasons............. The people belonging to this class do not realise that the constructions made in violation of the relevant laws, master plan or zonal development plan or sanctioned building plan or the building is used for a purpose other than the one specified in the relevant statute or the master plan, etc., such constructions put unbearable burden on the public facilities/amenities like water, electricity, sewerage, etc. apart from creating chaos on the roads................ This Court has, from time to time, taken cognizance of buildings constructed in violation of municipal and other laws and emphasised that no compromise should be made with the town planning scheme and no relief should be given to the violator of the town planning scheme, etc. on the ground that he has spent substantial amount on construction of the buildings, etc. Unfortunately, despite repeated judgments by this Court and the High Courts, the builders and other affluent people engaged in the construction activities, who have, over the years shown scant respect for regulatory mechanism envisaged in the municipal and other similar laws, as also the master plans, zonal development plans, sanctioned plans, etc., have received encouragement and support from the State apparatus. As and when the Courts have passed orders or the officers of local and other bodies have taken action for ensuring rigorous compliance with laws relating to planned development of the cities and urban areas and issued directions for demolition of the illegal/unauthorised constructions, those in power have come forward to protect the wrongdoers either by issuing administrative orders or enacting laws for regularisation of illegal and unauthorised constructions in the name of compassion and hardship. Such actions have done irreparable harm to the concept of planned development of the cities and urban areas. It is high time that the executive and political apparatus of the State take serious view of the menace of illegal and unauthorised constructions and stop their support to the lobbies of affluent class of builders and others, else even the rural areas of the country will soon witness similar chaotic conditions."
7. In Priyanka Estates International Pvt. Ltd. v. State of Assam (supra), this Court refused to order regularisation of the illegal construction raised by the appellant and observed:
"It is a matter of common knowledge that illegal and unauthorised constructions CS No. 51902/16 Luv Kumar Vs. Yoginder and ors 18/24 beyond the sanctioned plans are on rise, may be due to paucity of land in big cities. Such activities are required to be dealt with by firm hands otherwise builders/colonisers would continue to build or construct beyond the sanctioned and approved plans and would still go scotfree. Ultimately, it is the flat owners who fall prey to such activities as the ultimate desire of a common man is to have a shelter of his own. Such unlawful constructions are definitely against the public interest and hazardous to the safety of occupiers and residents of multistoreyed buildings. To some extent both parties can be said to be equally responsible for this. Still the greater loss would be of those flat owners whose flats are to be demolished as compared to the builder."
8. What needs to be emphasised is that illegal and unauthorised constructions of buildings and other structure not only violate the municipal laws and the concept of planned development of the particular area but also affect various fundamental and constitutional rights of other persons.
8.11. [1999 (6) SCC In M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu 464] made in a different context the Hon'ble Apex Court observed as under: "This Court in numerous decisions has held that no consideration should be shown to the builder or any other person where construction is unauthorized. This dicta is now almost bordering the rule of law......... Unauthorised construction, if it is illegal and cannot be compounded, has to be demolished. There is no way out. Judicial discretion cannot be guided by expediency. Courts are not free from statutory fetters.
"
8.12 In the case titled as 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.
CS No. 51902/16 Luv Kumar Vs. Yoginder and ors 19/24 8.13 Reliance may also be placed upon the law laid down in Onkar
Nath (Supra), Krishna Kali Mallik (Supra), Smt. And Lhamu (Supra) and 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......." 8.14 In Okhla Factory Owners's Association (Regd.)& Anr. vs. The Govt. of National Capital Territory of Delhi & Ors.;108(2003) DLT 517 (DB) while relying upon the decision of Supreme Court in Ahmedabad Municipal Corporation vs. Nawab Khan Gulab Khan (1997) 11 SCC 121 it was held that:
"No one has a right to make use of public property for private purpose and that it is the duty of the competent authorities to remove encroachments which are a constant source of unhygienic conditions, ecological problems, traffic hazard and a risk even to pedestrians.
8.15 Though Ld. Counsel for the defendants had also argued that the photographs filed by the plaintiff to prove the alleged unauthorized construction cannot be relied upon as the photographs were not formally CS No. 51902/16 Luv Kumar Vs. Yoginder and ors 20/24 proved by filing the negatives and examining the photographer who had clicked them. It was argued that if the photographs were taken through digital camera the memory card as well as certificate as per Section 65B of Indian Evidence Act were not adduced and therefore photographs cannot be relied upon and in the absence of photographs there is no proof of alleged unauthorized construction. However, I do not agree with the contentions of Ld. Counsel for the defendants. To begin with no objection was raised at the time when the photographs were exhibited by the plaintiff during his testimony. These photographs are on record as Ex. PW1/B to D and Mark E. Not even a single suggestion was given to the plaintiff/PW1 that the photographs are doctored. In fact the plaintiff was confronted with the photographs during his cross examination to which he stated as "The construction Ex. PW1/A to Ex. PW1/E is a new one.". I have gone through the law laid down by Hon. Apex Court in Anvar PV Vs. P.K. Bashir 2014 10 SCC 473. No doubt the negatives of the photographs were not proved and it was not explained as to whether the photographs were taken from a digital camera or otherwise however even if these photographs are held as not proved as per the Evidence Act still the plaintiff has been able to prove the factum of unauthorized construction independent of these photographs. The unauthorized construction in the suit property stands proved in view of the Written Statement of the defendant no. 3 i.e. SDMC, the suggestion given to CS No. 51902/16 Luv Kumar Vs. Yoginder and ors 21/24 plaintiff/PW1 during his cross examination by Ld. Counsel for defendant no. 1 as well as defendant no. 3 and most importantly the statement made by defendant no. 2 during his cross examination wherein it has duly come on record that certain unauthorized construction was being raised in the suit property which is a government land and that defendant no. 3/SDMC had demolished the same. In fact in the joint Written Statement filed by defendant no. 1 and 2 it was not denied that certain construction work was carried out at the suit property. No doubt it was claimed that minor repair work was being carried out and the same was a permissible one however it stands proved on record in view of the written statement of the SDMC as well as cross examination of the defendant as well as the plaintiff that it was not minor repair work but a full fledge construction. Furthermore it being a government land/ encroachment on government land stands duly established. 8.16 As far as defendant no. 3 is concerned Ld. Counsel for defendant no. 3 had loosely argued that the plaintiff is not entitled to the relief prayed for on two counts. It was argued that as no statutory notice was given as per the provisions of 478 of the Delhi Municipal Corporation Act 1957 therefore the suit is barred under section 478 (1) r/w section 477 of the above Act. However I find no merits in the contentions of Ld. Counsel for defendant no. 3. Section 478 (3) makes it amply clear that provisions of CS No. 51902/16 Luv Kumar Vs. Yoginder and ors 22/24 clause 1 of the said section shall not apply to a suit in which the only relief claimed is an injunction. Furthermore the said provision i.e. 478 (1) merely provides a procedural requirement which does not go into the merits of the dispute. Reliance may be placed upon the law laid down in Ghanshyam Das Vs. Dominion of India (1984) 3 SCC 46 and Sangram Singh Vs. Election Tribunal, Kotha and anr. 1955 SCR (21). Hence the suit or the relief claimed is not barred by section 477 and 478 of the above Act. Secondly, it was argued that SDMC has already taken the action and demolished the unauthorized construction therefore nothing survives in the present suit, however the said contentions are also meritless in my opinion. Though no doubt SDMC/MCD/ Defendant no. 3 had taken some action but it was partial action only. The encroachment and the construction still exists and it is a continuing offence as well as menace, same is writ large from the records and therefore the suit is very well maintainable. 8.17 In view above discussion issue no. 1 is decided in favour of plaintiff and against the defendants.
Relief
9. As issue no. 1 is decided in favour of the plaintiff and against CS No. 51902/16 Luv Kumar Vs. Yoginder and ors 23/24 the defendants, the suit of the plaintiff stands decreed and defendant no. 1 and 2 are restrained from encroaching upon government land i.e. suit property and from raising any further construction over the same. Defendant no. 3 shall ensure compliance of the same which otherwise they are duty bound. Decree sheet be prepared accordingly.
10. File be consigned to Record Room.
(Gaurav Rao) Announced in the open court SCJCumRC(SouthEast) on 31.08.2016. Distt.Courts, Saket,New Delhi.
CS No. 51902/16 Luv Kumar Vs. Yoginder and ors 24/24