Delhi District Court
Smt. Asha vs South Delhi Municipal Corporation on 25 October, 2016
IN THE COURT OF GAURAV RAO, SENIOR CIVIL JUDGE
CUM RENT CONTROLLER ( SOUTH EAST), DISTRICT
COURTS, SAKET, NEW DELHI
CS No: 50837/16 (Old CS no. 563/3/13)
CNR No. DLSE030001382013
Smt. Asha
W/o Sh. Ganesh Dev Vashisht
R/o 825, Bhogal Lane, Jangpura,
New Delhi110014.
.....Plaintiff
Versus
1.South Delhi Municipal Corporation Through its Commissioner's Civic Centre, Jawaharlal Nehru Marg, New Delhi - 110002.
2. Sh. Ram Prakash @ Ram Bagath Vashisht s/o Late Sh. Chander Bhan Vashisht R/o 825, Bhogal Road, Jangpura, New Delhi.
3. S.H.O. PS Nizamuddin, New Delhi.
....Defendants
Date of institution of suit : 24.09.2013
Date on which Judgment reserved : 25.10.2016
Date on which judgment pronounced : 25.10.2016
CS No. 50837/2016 Asha Vs. SDMC and ors 1/36
Decision : Suit Decreed
J U D G M E N T
1. The present suit for permanent and mandatory injunction has been filed by the plaintiff seeking a direction to defendant no. 1 to stop raising of unauthorized construction at first floor (front side) of property bearing no. 825, Bhogal Road, Jangpura, New Delhi - 110014 (hereinafter referred to as the suit property) by defendant no. 2 and further to direct defendant no. 1 to 3 to demolish the illegal and unauthorized construction so raised at the suit property.
Plaint
2. The case of the plaintiff is that defendant no. 2 is her brother in law and is residing at ground floor (front side) of property bearing no. 825, Bhogal Road, Jangpura, New Delhi 110014.
2.1 It is further her case that on 18.09.2013 defendant no. 2 commenced raising unauthorized construction at the suit property without obtaining any permission/sanctioned plan from defendant no. 1.
2.2 It is further her case that construction would also adversely affect her day to day life as well as that of her family members as CS No. 50837/2016 Asha Vs. SDMC and ors 2/36 unauthorized construction is made with malafide intention to block the air movement at the back side of the aforesaid property where she is residing with her family.
2.3 It is further her case that since defendant no. 2 is raising unauthorized construction at the suit property therefore she being the law abiding person objected to the illegal construction but defendant no. 2 paid no heed.
2.4 It is further her case that her son had taken photographs of the said unauthorized construction from 18.09.2013 to 21.09.2013 and the said unauthorized construction commenced by defendant no. 2 is depicted in red dotted line in site plan.
2.5 It is further her case that defendant no. 2 has filed a false suit against the husband of plaintiff seeking possession of back side of the suit property where plaintiff is residing with her family. It is further her case that her husband filed a counter claim, in the said suit, for partition of said property which is still pending in Tis Hazari Courts and defendant no. 2 could not even get the stay order in his favour in the aforesaid suit.
2.6 It is her case that when defendant no. 2 realized that he CS No. 50837/2016 Asha Vs. SDMC and ors 3/36
could not get the possession of said back portion of the property from the husband of plaintiff by due process of law he started raising unauthorized construction to create hindrance for the family members of the plaintiff and pressurize them to vacate the said portion of the property.
2.7 It is further her case that her husband is working in HPL Jangpura Bhogal, New Delhi and presently posted in Arunachal Pradesh and defendant no. 2 who is holding the influencing job in Delhi Government has been threatening the plaintiff and her family that they will be implicated in false criminal case if they continued raising objections to the said unauthorized construction.
2.8 It is further her case that on 19.09.2013 defendant no. 2 advised her for not to call her husband from Arunachal Pradesh for stopping the said illegal construction and also threatened her that if her husband comes to Delhi his workers would beat her husband and implicate him in false criminal case.
2.9 It is further her case that defendant no. 2 was not responsive to the objection raised by her and therefore she made complaint to the concerned Junior Engineer and Assistant Engineer, SDMC but they were not ready to receive the complaint itself. It is her case that on 18.09.2013 CS No. 50837/2016 Asha Vs. SDMC and ors 4/36 at 10.17 a.m. she also called the police at 100 number but no one turned up and on 19.09.2013 she sent a complaint to defendant no. 1 but of no use.
2.10 It is further her case that on 19.09.2013 she also made a complaint to defendant no. 3 and on 20.09.2013 at about 10.30 a.m. Defendant no. 3 sent two police officials namely SI Umed Singh and Constable Jhan Ali to the suit property and said police officials could not stop the illegal construction as they received direction from their higher officials to not to stop the said illegal construction.
2.11 It is further her case that on 20.09.2013 she again made a complaint against said unauthorized construction before Dy. Commissioner, SDMC but of no use.
2.12 It is further her case that defendant no. 1 and 3 failed to discharge their statutory duty and for extraneous consideration allowed defendant no. 2 to carry out the said illegal construction and the provisions of the building bye laws of DMC Act were thus openly flouted by defendant no. 2 in collusion with defendant no. 1 and 3.
2.13 Hence the present suit.
CS No. 50837/2016 Asha Vs. SDMC and ors 5/36
3. The defendants appeared in pursuant to service of summons and filed their separate written statement and status report.
Status report of defendant no. 1
4. Defendant no.1 did not file any Written Statement and instead filed a status report as is reflected in proceedings dated 06.11.2013. More status reports were filed as is reflected in proceedings dated 08.01.2014, 05.06.2014, 14.08.2014 and 16.09.2014.
4.1 It was submitted in the status report dated 06.11.2013 that the property has been booked for unauthorized construction vide file no. 821/B/UC/EE(B)/1/CNZ/2013 dated 30.09.2013 for action u/s 343/344 of DMC Act 1957 and after following the due process of law show cause notice has been served upon the owners. It was further submitted that on the basis of reply received all the coowners were called for a personal hearing on 08.11.2013.
4.2 Therefore another status report was filed on 07.12.2013 wherein while reiterating the contents of the earlier status reports it was additionally stated that after giving personal hearing on 08.11.2013 and 20.11.2013 the hearing was closed however in the meantime one file for regularization of the property was received and pending consideration.
CS No. 50837/2016 Asha Vs. SDMC and ors 6/36 4.3 Another status report was filed on 08.01.2014 wherein it was
submitted that regularization application of defendant no. 2 was rejected by the department due to non compliance of objections/ observations vide bearing no. D/944/AE(B)VI/2014 dated 03.01.2014 and thereafter speaking orders vide no. D/ 954/AE(B)VI/CNZ/2014 dated 06.01.2014 was passed by competent authority u/s 343/344 of DMC Act.
4.4 One more status report was filed on 05.06.2014 wherein the averments of earlier status report were reproduced. Additionally it was stated that some more documents were submitted by defendant no. 2 in support of his claim of regularization and same were taken on record and after considering the documents regularization application was again rejected on 23.05.2014 and a demolition/sealing action programme was fixed under the PS H.N. Din for 13.06.2014.
4.5 One more status report was filed on 12.08.2014 wherein it was lastly submitted that defendant no. 2 requested for reopening of case of regularization of the property and submitted some additional documents and thereafter again a I/N was sent to defendant no. 2 vide this office letter no. D/137/AE (B)II/CNZ/2014 dated 04.07.2014.
CS No. 50837/2016 Asha Vs. SDMC and ors 7/36 Written Statement of Defendant no. 2
5. In his Written Statement filed by defendant no. 2 it was pleaded that the present suit is false and frivolous as the plaintiff has no connection/relation whatsoever with the suit property and hence suit which does not disclose any cause of action is liable to be dismissed. It was pleaded that present suit has been filed by the plaintiff merely to extort money from the defendant.
5.1 It was pleaded that defendant no. 2 is the sole and absolute owner of suit property and plaintiff has nothing to do with the suit property nor the plaintiff is in any way affected by the construction on the suit property. It was pleaded that the defendant had only permitted the plaintiff and her husband to stay in suit property for a limited time.
5.2 It was further pleaded that plaintiff has not approached this court with clean hands and has suppressed vital facts from the court. It was pleaded that suit property was gifted to defendant no. 2 by his grandfather by a gift deed dated 30.06.1956 registered on 30.07.1957.
5.3 It was further pleaded that this court has no jurisdiction to try the present suit as the suit property situated at Bhogal, Jangpura falls in category E of colonies and minimum circle rate of area is Rs. 47,840/ CS No. 50837/2016 Asha Vs. SDMC and ors 8/36 per sq. meter and thus the minimum value of the suit property is around Rs. 68,40,067/.
5.4 It was further pleaded that defendant no. 2 had applied for sanction in the year 2009 but MCD has not done anything in that regard and employees of MCD told him that sanction cannot be given as the suit property is a subdivided property. It was further pleaded that he had already applied for compounding deviations as per Appendix Q of the Building Byelaws 1983 (DDA).
5.5 It was further pleaded that ground floor of suit property was approved way back in the year 1969 and defendant no. 2 is now only repairing/renovating/extending the existing structure on the first floor which is within the permissible FAR and no provisions of building bye laws have been flouted or violated.
5.6 It was further pleaded that portion of suit property which is in unlawful possession of plaintiff also has unauthorized construction and injunction being an equitable remedy the plaintiff has to do equity in order to get the equity which the plaintiff has not done in the present suit by hiding the material fact of unauthorized construction on her part. It was further pleaded that even otherwise no construction has been raised by the defendant in the portion under unlawful occupation of the plaintiff CS No. 50837/2016 Asha Vs. SDMC and ors 9/36 and her family.
5.7 It was further submitted that defendant no. 2 is merely carrying repair/renovation/extension work and same is not causing any problem to the plaintiff and her family members much less adversely affecting her easementary rights. It was further pleaded that in fact it is the plaintiff who has obstructed the passage of defendant and his family members to their bathroom and toilet.
Status report of defendant no. 3
6. In the status report filed on behalf of defendant no. 3 it was submitted that complaint dated 19.09.2013 and PCR calls dated 20.09.2013 were received at PS H.N. Din regarding unauthorized construction on the suit property without sanctioned plan of South Delhi Municipal Corporation and said complaint was marked to HC Rajneder and PCR call was marked to SI Umed Singh for inquiry. It was further submitted that during the enquiry given address was visited and it was found on enquiry that there is a property dispute between the husband of complainant and his brother i.e. defendant no. 2.
6.1 It was further submitted that defendant no. 2 was constructing his house for which complainant filed the complaint on CS No. 50837/2016 Asha Vs. SDMC and ors 10/36 19.09.2013 and also made a PCR call for quarrel on 20.09.2013. It was submitted that the unauthorized construction was stopped by the IO and information of unauthorized construction was sent to land owning agency i.e. MCD along with photographs of the site.
6.2 It was further submitted that as no further action was required at the end of police without any complaint of land owning agency hence both the complaint and PCR calls were filed.
Replication
7. The plaintiff filed the replication to the Written Statement of defendant no. 2 and denied the entire averments of the written statement and simultaneously reiterated and reaffirmed the contents of the plaint.
ISSUES
8. On the basis of the pleadings of the parties following issues were framed by Ld. Predecessor of this court vide proceedings dated 18.03.2015.
1.Whether plaintiff is entitled to decree for permanent injunction as prayed in clause "a"? OPP CS No. 50837/2016 Asha Vs. SDMC and ors 11/36
2.Whether plaintiff is entitled to decree of mandatory injunction as prayed in clause "b"? OPP
3. Relief.
Plaintiff's evidence
8. In order to prove her case the plaintiff examined her son and husband as PW1 and PW2 respectively. They deposed on the lines of plaint. PW1 Pankaj Vashisht tendered his evidence by way of affidavit as Ex. PW1/A and relied upon the following documents:
(a) photographs as Ex. PW1/1 (colly),
(b) site plan as Ex. PW1/2 and
(c) copy of complaint to Commissioner SDMC as Mark A. 8.1 PW2 Ganesh Dev Vashisht tendered his evidence by way of affidavit as Ex. PW1/A and relied upon the documents as were tendered by PW1.
8.2 Thereafter PE was closed vide orders dated 28.01.2016.
Defendant's evidence
9. Defendant no. 1 did not lead any defence evidence.
CS No. 50837/2016 Asha Vs. SDMC and ors 12/36 9.1 Defendant no. 2 examined three witnesses in his defence
including himself as DW1, tendered his evidence by way of affidavit as Ex. DW1/A and relied upon the following documents:
(a) copy of gift deed along with true translation as Mark A (colly).
(b) photographs as Ex. DW1/1 (colly),
(c) copy of application dated 07.10.2013 for regularization as
Ex. DW1/2 and,
(d) reply to the show cause notice dated 14.10.2013 as Ex.
DW1/3.
9.2 Defendant no. 2 also examined Sh. Ram Kumar, Head
Clerk, Building Department, Central Zone as DW2 and he produced the original record i.e. complaint made to Assistant Engineer, Building, Central Zone dated 11.10.2013 already exhibited as Ex. DW1/3.
9.3 Defendant no. 2 also examined Sh. Naveen, Record Lifter, Department of Archives, New Delhi as DW3 and he proved the original of gift deed Mark A as Ex. DW3/1.
9.4 Defendant no. 3 was proceeded exparte vide orders dated 14.08.2014.
CS No. 50837/2016 Asha Vs. SDMC and ors 13/36 Findings
10. 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. My issue wise finding is as under: Issue no. 1 and 2
1. Whether plaintiff is entitled to decree for permanent injunction as prayed in clause "a"? OPP
2. Whether plaintiff is entitled to decree of mandatory injunction as prayed in clause "b"? OPP 10.1 As both the issues are inter connected they are taken together and the finding is as under:
10.2 In nutshell the plaintiff who is aggrieved with the unauthorized construction raised by defendant no. 2 in the suit property has filed the present suit seeking a direction to defendant no. 1 to stop raising of unauthorized construction therein and further to direct defendant no. 1 to 3 to demolish the illegal and unauthorized construction so raised at the suit property.
10.3 To prove the case of unauthorized construction raised in CS No. 50837/2016 Asha Vs. SDMC and ors 14/36
the suit property the plaintiff examined her son and husband in support of her case as PW1 and PW2 respectively. They relied upon photographs Ex.PW1/1 (colly) and the complaint i.e. Mark A lodged with the Commissioner, MCD to prove the factum of unauthorized construction.
10.4 From the evidence led by the plaintiff and the above documents its stands squarely established that defendant no. 2 has indeed raised unauthorized and illegal construction upon the suit property i.e. without obtaining any sanction plan or permission from the concerned authorities as per the municipal bylaws.
10.5 PW1 categorically proved that the unauthorized construction was commenced in the suit property by defendant no. 2 on 18.09.2013 and he took the photographs showing the unauthorized construction so raised. He also proved the complaint Mark A which was sent to Commissioner MCD by his mother. It is writ large from the photographs Ex. PW1/1 that full fledged construction was being raised at the suit property over and above the ground floor in the form of partition walls, columns, erection of windows and doors etc. The categoric deposition of PW1 which read as "there are ground floor, first floor and second floor on defendant's area. Defendants had started construction of first and second floor on 18.09.2013. To my knowledge they have not got the plan sanctioned..........Second floor was constructed after filing of the CS No. 50837/2016 Asha Vs. SDMC and ors 15/36 case..........Defendant no. 2 raised unauthorized construction since 18.09.2013 and raised construction upto first and second floors" could not be challenged or contradicted during the cross examination. Not even once it was suggested to the witness that he was deposing falsely or that no unauthorized construction as claimed by him was raised by defendant no. 2. His unimpeached testimony is a sufficient proof of the unauthorized construction so raised at the suit property. Even PW2 had deposed on the same lines and even his claims could not be discredited.
In fact in addition to what PW1 had stated during cross examination PW2 went on to state "Further construction on the first floor was constructed after filing the present case, therefore I could not mention the same in my plaint."
10.6 Though Ld. Counsel for defendant no. 2 vehemently argued that no reliance can be placed upon the photographs as they were not proved as per the Evidence Act and in the absence of photographs there is no other proof of the alleged unauthorized construction, however I do not agree with the contentions raised by Ld. Counsel for defendant no. 2. To begin with no objection was raised at the time when the photographs were exhibited by PW1 during his testimony. The photographs being not disputed stands admitted and no further proof is required as admitted facts need not be proved. It is not now open to argue that the photographs were not proved as per the Evidence Act. PW1 had categorically stated CS No. 50837/2016 Asha Vs. SDMC and ors 16/36 that he had taken the photographs from his mobile phone. Not even a single suggestion was given to the PW1 that the photographs were not clicked by him or that they were doctored. 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 memory card of the mobile phone and the mobile phone were not produced by PW1 however it is to be seen that they were never in dispute and therefore there was no necessity to prove the admitted facts/photographs.
10.7 Furthermore even if these photographs are held to be 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 complaint dated 19.09.2013 i.e. Mark A which was also proved by DW2 i.e. Head Clerk Building Department as Ex. DW2/X. The said official/DW2 during his cross examination stated as under: "It is correct that plaintiff lodged a complaint dated 19.09.2013 which was marked as Mark A and is now exhibited as Ex. DW2/X. I have seen the photographs dated 18.09.2013, 20.09.2013, 21.09.2013 which are already exhibited as Ex. PW1/1 (colly) which are available in MCD record which I have brought today. It is correct that the suit property was illegally construction without any sanctioned site plan............It is correct that MCD has passed demolition order and in the said order dated 06.01.2014 we directed the defendant no. 2 to remove the unauthorized construction raised in the suit property."
10.8 The complaint and the photographs which are also available CS No. 50837/2016 Asha Vs. SDMC and ors 17/36
with the MCD as deposed by the above witness leaves no doubt that indeed unauthorized construction was/has been raised at the suit property.
10.9 In fact from the documents placed on record by defendant no. 2 himself it is crystal clear that he had indeed raised unauthorized construction in the suit property. These documents include photographs Ex. DW1/1 wherein fresh construction in the form of boundary wall, columns, lenter, shuttering etc. is amply visible. Though Ld. Counsel for defendant no. 2 had claimed that defendant no. 2 was/had not carrying/carried out any fresh construction but was merely carrying out repair works however the said argument is absolutely frivolous and baseless. The quantum of construction as is visible in photographs Ex. PW1/1 and Ex. DW1/1 cannot be held to be mere minor repairs. It is a full fledged construction and additional floors over and above the existing structure i.e. ground floor have been raised. The relevant provision/regulation of Building Byelaws applicable for the 'development areas' of the Delhi Development Authority within the Union Territory of DelhiBuilding ByeLaws, 1983 are reproduced hereunder: 6.4 Notice for Alteration Only When the notice is only for an alteration of the building (See Bye1awNo. 3.5), only such plans and statement as may be necessary, shall accompany the notice .
CS No. 50837/2016 Asha Vs. SDMC and ors 18/36 4~ No notice and building permit is necessary for the following alterations, which do not otherwise violate any provisions regarding general building requirements, structural stability and fire safety requirements of the ByeIaws:
a) Plastering and patch repairs;
b) Reroofing or renewal of roof including roof of intermediate floor at the same height;
c) Flooring and reflooring;
d) Opening and closing windows, ventilators and doors not opening towards
other's property;
e) replacing fallen bricks, stones, pillars, beams etc.;
f) construction or reconstruction of sunshade not more than 75cm in width within
one's own land and not overhanging over a public street;
g) Construction or reconstruction of parapet exceeding 1 m and not more than 1.5 m in height and also construction or reconstruction of boundary walls as permissible under these Byelaws;
h) reconstruction. of portions of buildings damaged by storm, rains, fire, earthquake or any other natural calamity to the same extent and specification as existed prior to the damage, provided the use conforms to provisions of Master Plan;
i) White washing, painting etc. including erection of false ceiling in any floor at the permissible clear height provided the false ceiling in no way can be put to use as a 10ft/mezzanine etc.; and
j) erection or reerection of internal partitions provided the same are within the preview of the Byelaws .."
10.10 The construction work undertaken by the defendant no. 2 at the suit property was not a mere repair work as claimed by him and it was not the one as is covered under the building bylaws as above and it was precisely for this reason that the Assistant Engineer had passed the CS No. 50837/2016 Asha Vs. SDMC and ors 19/36 demolition orders rejecting the application moved by defendant no. 2 seeking regularization of the construction raised by him. The detailed orders dated 06.01.2014 bearing file no. D/954/AE (Bldg)VI/Cent. Zone/SDMC/2014 passed by the Assistant Engineer are on record. Though the said order was not tendered in evidence by any of the parties but the said order/document is part of the pleadings/judicial record and it is the same order which DW2 had admitted during his cross examination. In fact the said orders were communicated to the court by way of status report dated 05.06.2014 as is reflected in the proceedings of even date. It is a detailed order whereby the representation of defendant no. 2 was dealt with and it has been categorically observed in para 6 as under:
"The contentions that the construction is old and the repair/ renovation work was carried out - are not sustainable, since the new construction carried out has resulted into structural changes, which cannot be termed as repair or renovation."
10.11 Even in the status report of the police which is accompanied with one letter/information sent to DC, MCD, Lajpat Nagar, New Delhi on 22.09.2013 it is categorically mentioned that a new construction is being raised at the suit property. The above order dated 06.01.2014 as well as various other status report which have been discussed in detailed above i.e. 06.11.2013, 07.12.2013, 08.01.2014, 05.06.2014, 12.08.2014 etc. which are part of pleadings/judicial record puts to rest the arguments raised by Ld. Counsel for defendant no. 2 that it was only a repair work.
CS No. 50837/2016 Asha Vs. SDMC and ors 20/36 10.12 In fact defendant no. 2 had categorically admitted that the
construction which is upto the 3rd floor is not as per the sanctioned plan. The relevant portion of his cross examination is reproduced hereunder: "First floor is not as per sanction plan...........Though I have applied for regularization also but before this my application for regularization was rejected.......Suit property is built upto three floor in half of the plot and half of the plot covers two floors. I have sanction plan only upto the ground floor and I can file the same."
10.13 Though Ld. Counsel for defendant no. 2 placed reliance upon the law laid down in Syed Muzaffar Ali and ors Vs. MCD 1995 Supp. (4) SCC 426 and argued that the deviations do not necessarily entail demolition however I find no merits in the same. Defendant no. 2 has already approached the MCD/SDMC and his representation has already been rejected and the demolition orders passed. It is not the case that he has not been heard or that there has been violations of principles of natural justice. Compounding or no compounding, regularization or no regularization is the exclusive domain of the MCD/SDMC and they have already dealt with that aspect vide proceedings dated 06.01.2014. His remedy after the passing of the demolition order does not lie before this court but with the MCD Appellate Tribunal. Even the reliance placed by Ld. Counsel for defendant no. 2 upon Subhash Chand Goel and ors Vs. Om Parkash Gupta and ors CM (M) 205/2007 decided on CS No. 50837/2016 Asha Vs. SDMC and ors 21/36 10.12.2008 is not tenable for the aforesaid reasons.
10.14 So not only admittedly the construction above the ground floor is not as per the sanctioned plan but even for the ground floor construction serious doubts were created in view of Ex. DW1/Y with which the plaintiff confronted the defendant during his cross examination. Defendant no. 2 had placed on record one plan dated 16.09.1969 bearing file no. 673/D/HQ/69 as Ex. DW1/X claiming it to be the certified copy of the sanctioned plan in respect of the ground floor of the suit property however in Ex. DW1/Y which is the RTI reply received by the plaintiff it is categorically mentioned that no such record is available with their office. Even after being confronted with Ex. DW1/Y the defendant no. 2 made no efforts to discredit the claim of the plaintiff as was set up by way of Ex. DW1/Y or to prove that the RTI reply is a wrong one or that indeed Ex. DW1/X was sanctioned plan for the ground floor. Not doing so itself casts doubt upon the claims of defendant no. 2.
10.15 Though it was also one of the arguments of Ld. Counsel for defendant no. 2 that the present suit is merely a counterblast to the partition suit filed by defendant no. 2 against the husband of the plaintiff and otherwise there is no merit in her case however I do not find any merit in the arguments of ld. Counsel for defendant no. 2. Firstly, the CS No. 50837/2016 Asha Vs. SDMC and ors 22/36 present suit has been filed seeking stoppage of unauthorized construction raised at the suit property and demolition of the construction already raised. Therefore 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. Furthermore, in my opinion once the suit for partition filed by the defendant no. 2 was already pending in respect of the entire property i.e. suit property and the property wherein the plaintiff is residing it became much more incumbent upon defendant no. 2 to not to change the status of the property by raising construction thereupon. More so when the plaintiff's husband had filed a counter claim in the said suit seeking his share in the suit property. Plaintiff's husband and defendant no. 2 are real brothers and the property belonged to the ancestors/forefathers. Though defendant no. 2 claims exclusive right to the suit property and the property wherein the plaintiff is residing on the basis of gift deed Mark A/DW3/1 however till the rights of the parties are ascertained, the partition suit is disposed off/adjudicated, in my considered opinion defendant no. 2 should not have raised any construction in the suit property. In Bachan Singh Vs. Swaran Singh decided by the Hon'ble Punjab and Haryana High Court on 06.03.2000 it has been observed as under:
6. This Court in Sant Ram Nagina Ram Vs. Daya Ram Nagina Ram, AIR 1961 Pb. 528 laid down the following prepositions after considering the various authorities and CS No. 50837/2016 Asha Vs. SDMC and ors 23/36 principles: (1) A coowner has an interest in the whole property and also in every parcel of it.
(2) The possession of the joint property by one coowner is, in the eye of law, possession of all even if all, but one, are actually out of possession. (3) A mere occupation of a larger portion or even of an entire joint property does not necessarily amount to ouster as the possession of one is deemed to be on behalf of all. (4) The above rule admits of an exception when there is ouster of a coowner by another. But in order to negative the presumption of joint possession on behalf of all on the ground of ouster, the possession of coowner must not only be exclusive but also hostile to the knowledge of the other, as when a coowner openly asserts his own title and denies that of the other.
10. In Mst. Parsini allas Mano Vs. Mahan Singh and others, 1982 P.L.J. 280 a Single Judge of this Court held that a cosharer in exclusive possession of a party of joint land cannot raise construction on the land as every cosharer is a joint owner of every inch of the whole land. The same view was followed in Daulat Ram Vs. Dalip Singh, 1989 (1) R.L.R. 523 and also in Om Prakash and others v. Chhaju Ram, 1992, P.L.J. 546.
(ii) Nazar Mohd. Khan v. Arshad Ali Khan and others, 1996 P.L.J 33: 1996 (1) RRR 117 wherein Hon'ble Mr. Justice N. K. Kappor held that there is no denying of the fact that cosharer has no right to raise construction till the land is partitioned by metes and bounds and so even when one of the cosharers , is in exclusive possession of a particular piece of land, any other person can seek injunction restraining the others from raising the construction till the matter is finally decided.
15. On a consideration of the judicial pronouncements on the subject, we are of the opinion that:
(i) a coowner who is not in possession of any part of the property is not entitled to seek any injunction against the other coowner who has been in exclusive possession of the CS No. 50837/2016 Asha Vs. SDMC and ors 24/36 common property unless any act of the person in possession of the property, amounts to ouster, prejudicial or adverse to the interest of coowner out of possession.
(iv) If the acts of the coowner in possession are detrimental to the interest of other co owners, a coowner out of possession can seek an injunction to prevent such act which is detrimental to his interest.
10.16 It is also a settled law that it is not competent to a cosharer to change the character of the land without the consent of others (vide AIR 1940 Pat. 617 and AIR 1939 Lah 514). In ILR 18 All 115, following ILR 12 AW 436 it was held that one of the several joint owners of land was not entitled to erect a building upon the joint property without the consent of the other joint owners notwithstanding that the erection of such a building may cause no direct loss to the other joint owners. In AIR 1918 All 322 Walsh J., held that in a suit for injunction against a cosharer for wrongful use of a joint land, it was not necessary to prove that the plaintiff was suffering or was likely to suffer substantial injury by such user and a joint owner had no right to deal with the joint property without the consent of the other joint , 39 Ind Cas 739 (AIR 1917 All 118) owners. In Shibba Mal v. Naurang Mal it was held that one joint owner of a private property had no right to do anything which would make the joint property more exclusively his. In Ayyaswami Gounder vs. Munnuswami Gounder AIR 1984 SC 178 9 the Supreme Court held that where an owner of land obstructs another coowner from using the land even when the use causes no injury or detriment to him, CS No. 50837/2016 Asha Vs. SDMC and ors 25/36 an injunction can be granted against the obstructing owner.
10.17 Secondly, irrespective of what other rights the plaintiff has i.e. whether being wife of the coowner or not the plaintiff atleast has a right to approach the court against the unauthorized construction raised by defendant no. 2. The plaintiff is residing in the rear portion of the property and the suit property is in the front portion. She has categorically claimed that the construction raised over and above the ground floor i.e. on the first and the second floor has affected her easementary rights of air and light as defendant no. 2's property now stands in front/face of her property. Her stand stands corroborated in view of photographs Ex. PW1/1 and Ex. DW1/1. In fact a bare glance at the site plan Ex. PW1/2 would make it amply clear that any construction in the suit property would definitely/indeed affect the easementary rights of the plaintiff who is residing in the rear portion.
10.18 Though Ld. Counsel for defendant no. 2 had argued that the plaintiff herself never came in the witness box and therefore the claims that her easementary rights are affected on account of unauthorized construction being in the exclusive knowledge of the plaintiff and being personal rights could not be proved. However I find no merits in the arguments of Ld. Counsel for defendant no. 2. The facts needed to be proved by the plaintiff in the case at hand to seek the relief were not the CS No. 50837/2016 Asha Vs. SDMC and ors 26/36 ones within her exclusive knowledge only or one which only she could have proved. The facts i.e. the raising of unauthorized construction could be proved either by the plaintiff herself or through any other witness which could be any person i.e. her family members or any official etc. PW1 successfully proved the factum of unauthorized construction raised at the suit property. Unauthorized construction so raised also stands proved in view of the deposition of DW2 as well as other material on record which include the photographs and status reports of defendant no.
2. As far as easementary rights are concerned it is to be seen that PW1 and PW2 are the son and husband of the plaintiff. PW1 categorically deposed in the affidavit regarding the obstruction of his easementary rights as well as of his family members. During the cross examination he stated as "due to illegal construction by defendant no. 2, I could not get proper air." Same was the stand of PW2. If easementary rights of one individual residing in the property are affected due to raising of unauthorized construction than the easementary rights of other family members or individuals residing in the same property are/would be naturally affected.
10.19 Furthermore it is also to be remembered that the suit is not only for protection of easementary rights but also for unauthorized construction raised at the suit property. The two issues are undoubtedly interlinked but give the plaintiff different cause of actions. For this CS No. 50837/2016 Asha Vs. SDMC and ors 27/36 reason I do not find any merits in the Ld. Counsel's reliance placed upon the law laid down in Pushpa (dead) per LRs Vs. Dr. Mrs. D.C. Farnandez (died) per LRs 2014 SPTL (web) 1617 AP as the suit has been filed for protection of easementary rights as well as on account of being aggrieved with the unauthorized construction raised by defendant no. 2.
10.20 The law is well settled that any person including 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. Therefore she definitely has a right to maintain the present suit. Reliance may be placed upon the law laid down in Onkar Nath, Petitioner Vs. Ram Nath Gupta, AIR 1985 Delhi 293 , Krishna Kali Mallik Vs. Babu Lal Shaw, AIR 1965 Cal 148 and Smt. And Lhamu Vs. Smt. Ladena, AIR 1983 Sikkim 5.
10.21 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 CS No. 50837/2016 Asha Vs. SDMC and ors 28/36 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.
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 CS No. 50837/2016 Asha Vs. SDMC and ors 29/36 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 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 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 CS No. 50837/2016 Asha Vs. SDMC and ors 30/36 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.
10.22 In M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu [1999 (6) SCC 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. "
10.23 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.
10.24 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: CS No. 50837/2016 Asha Vs. SDMC and ors 31/36 "..........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......."
10.25 It was also one of the arguments of Ld. Counsel for defendant no. 2 that plaintiff who has filed the present suit seeking relief of permanent and mandatory injunction is not entitled to those equitable reliefs as she has concealed & suppressed material facts from the court and her conduct itself is wrong. It was argued that she has not approached the court with clean hands and therefore she is not entitled to the discretionary relief of injunction. It was argued that the property wherein the plaintiff is residing is also unauthorized, has been unauthorizedly constructed and therefore when she herself has done wrong she cannot claim any equity. However I find no merits in the arguments of the Ld. Counsel for defendant no. 2.
10.26 Undoubtedly 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 CS No. 50837/2016 Asha Vs. SDMC and ors 32/36 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 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.
10.27 In the case at hand I find no reasons to not to grant the relief of injunctions as prayed for by the plaintiff. No doubt the plaintiff could not prove the sanctioned plan in respect of her portion of the property but it is to be seen that her portion consists only of the ground floor. The defendant no. 2 as has been discussed above had claimed that there was a sanctioned plan Ex. DW1/X in respect of the ground floor of the property. He has not claimed that the said sanctioned plan was not in respect of the portion wherein the plaintiff is residing, therefore, it is not now open for him to claim that the portion wherein the plaintiff is CS No. 50837/2016 Asha Vs. SDMC and ors 33/36 residing has also been unauthorizedly constructed. He cannot blow hot and cold at the same time i.e. approbate and reprobate at the same time. Moreover he could not prove as to when the unauthorized construction raised by the plaintiff and what is the extent of unauthorized construction. No complaint whatsoever was proved in this regard nor anybody from the SDMC was examined to prove the unauthorized construction raised by the plaintiff. Even the date of unauthorized construction has not been mentioned. As against this the plaintiff has proved the factum of raising of unauthorized construction over and above the ground floor by defendant no. 2. For this reasons I find no merits in the reliance placed by the Ld. Counsel for defendant no. 2 upon WP (C ) 7838/2013 titled as Civil Society Palam Kheshtra Vs. DC and ors. decided on 26.02.2014 and Nirmala Jain Vs. Municipal Corporation of Delhi dated 04.08.2006 both decided by the Hon'ble High Court of Delhi.
10.28 Though Ld. Counsel for defendant no. 2 had also argued that the plaintiff has malafidely targeted him on account of property dispute/enmity as though there are other/numerous properties adjoining/nearby the plaintiff's property wherein the unauthorized construction has been raised however only defendant no. 2 has been targeted. However I find no merits in the same. Suffice would be to say CS No. 50837/2016 Asha Vs. SDMC and ors 34/36 that there cannot be any parity in illegality. One person's wrong or illegal action does not entitle or give license to others to act unlawfully/illegally.
10.29 It was also one of the arguments that even otherwise the suit is not maintainable and the plaintiff is not entitled to the reliefs claimed as the construction so allegedly raised is protected in view of The National Capital Territory of Delhi Laws (Special Provisions) Act 2014. As far as the protection claimed by the defendant 2 under The National Capital Territory of Delhi Laws (Special Provisions) Act 2014 is concerned the defendant no. 2 is not entitled to any such protection. The protection under the said act is only available for unauthorized colonies and it does not cover the plotted developments. The suit property situated at Bhogal Jangpura is an authorized colony and therefore the protection under the Act is not available.
11. In view above discussion both the issues are decided in favour of plaintiff and against the defendants.
Relief
12. As both the issues are decided in favour of the plaintiff and against the defendants, the suit of the plaintiff stands decreed. Defendant CS No. 50837/2016 Asha Vs. SDMC and ors 35/36 no. 1 is directed to ensure that the unauthorized construction if any is immediately stopped and no further construction is raised at the suit property. Defendant no. 2 is granted one month time to remove the unauthorized and illegal construction so raised at his own cost, failing which defendant no. 1 shall demolish the unauthorized construction and recover the cost of the same from defendant no. 2. Defendant no. 3 shall provide necessary police assistance and security to the officials of defendant no. 1 as and when the request is made. Decree sheet be prepared accordingly.
13. File be consigned to Record Room after necessary compliance.
(Gaurav Rao) Announced in the open court SCJCumRC(SouthEast) on 25th October 2016. Distt.Courts, Saket,New Delhi.
CS No. 50837/2016 Asha Vs. SDMC and ors 36/36