Delhi District Court
Rahul Garg vs R. K. Gupta on 26 August, 2022
IN THE COURT OF MS. SWATI GUPTA, ACJCUMARCCUMCCJ,
NEW DELHI DISTRICT, PATIALA HOUSE COURTS, NEW DELHI
CS No. 57178/2016
Rahul Garg
S/o Sh. Mahesh Kumar Garg
R/o DDA LIG Flat No. I280,
Naraina Vihar, New Delhi .......... Plaintiff
VERSUS
1. R. K. Gupta
S/o Not Known
R/o LIG Flat No. I279,
Second Floor, Block/Pocket1,
Naraina Residential Scheme,
Naraina, New Delhi
2. The Commissioner
North Delhi Municipal Corporation
New Delhi ......... Defendants
Date of institution : 05.05.2014
Date for reserving for judgment : 21.07.2022
Date of judgment : 26.08.2022
Final judgment : Suit decreed
JUDGMENT
SUIT FOR PERMANENT AND MANDATORY INJUNCTION
1. Present suit has been filed by Sh. Rahul Garg (hereinafter referred to as the 'plaintiff') against Sh. R.K. Gupta (hereinafter referred to as the 'defendant no.1') and the Commissioner, Municipal Corporation of Delhi CS No. 57178/16 1 / 18 RAHUL GARG VS. R.K. & ORS.
(hereinafter referred to as the 'defendant no.2') praying for decree of permanent injunction in favour plaintiff and against the defendant no. 1, restraining the defendant no. 1 from raising illegal construction on the roof top of the entire block having six allottees bearing flats no. I267, I268, I273, I 274, I279, and I280, situated at DDA, LIG Flats, Naraina Vihar, New Delhi and further directing the defendant no. 1 to remove the illegal construction raised by him. It is also prayed that decree of mandatory injunction be passed in favour of plaintiff and against the defendant no. 2, directing the officials of defendant no. 2 to demolish the structure raised by defendant no. 1 on the roof top of the entire block having six allotees bearing Flats nos. I267, I268, I273, I274, I279, and I280 situated at DDA, LIG Flats Naraina Vihar, New Delhi to remove the debris from the roof top.
Brief Facts
2. As per the averments in the plaint, brief facts leading to the filing of the present suit are that the plaintiff purchased the property bearing DDA LIG Flat No. I280, second floor, Block I, situated at Naraina residential scheme, Naraina, New Delhi, alongwith freehold rights of the land underneath with roof rights, from one Sh. Ajay Sagar, vide saledeed dated 12.11.2010. The property is stated to be shown more clearly in the site plan annexed with the plaint in green colour. As per the plaintiff, he started residing in the said property alongwith his wife and daughter. The defendant no. 1 is stated to be the owner of Flat No. I279, DDA LIG Flat situated at second floor of the same premises, wherein the plaintiff is residing. As per the plaintiff, defendant no. 1 started raising illegal and unauthorized construction on the roof top of the premises, stated to be shown in red colour in the site plan annexed with the plaint. As per the plaintiff, all the six occupants including the plaintiff have CS No. 57178/16 2 / 18 RAHUL GARG VS. R.K. & ORS.
common rights on the roof top of the premises in question and plaintiff requested the defendant no. 1 not to raise any illegal construction over the roof top of the said premises, as the same was constructed in the year 1960 with no pillar or beams and as there was a possibility of endangering or collapsing of the entire structure and also danger to the life of the occupants.
3. As per the plaintiff, the defendant no. 1, without paying any heed to the plaintiff's requests, extended threats to the plaintiff and boasted of having links with the officials of Police, MCD and DDA. The defendant no. 1 also got all the building material to the spot. Consequently, plaintiff, through his father, made a call to the PCR on 25.04.2014. On the basis of the said complaint, one Junior Engineer from MCD and Police official from PS Naraina, New Delhi visisted the premises and cautioned defendant no. 1 not to raise any illegal construction. However, after their departure, defendant no. 1 immediately continued to raise the construction. As per the plaintiff, the officials who had come to the spot were in collusion with the defendant no. 1. Due to the said construction, the walls of the premises developed cracks and there was also issue of water leakage from the roof of the portion of the plaintiff. The plaintiff further, through his father, made several complaints to Commissioner of Police, Commissioner of MCD, Delhi, North, Deputy Commissioner, MCD, North, Special CP Crime Delhi, DCP Southwest, New Delhi and also to Hon'ble Lt. Governor, Chief Vigilance Commissioner, Satkarta Bhawan, on 25.04.2014 regarding the illegal construction being carried out by the defendant no. 1 on the roof top of Flat No. I279, Naraina Vihar, DDA Flats, New Delhi. Thereafter, as the defendant no. 1 did not stop the construction, the plaintiff made a telephonic complaint to MCD, Karol Bagh Zone on Telephone No. 25812700 vide complaint no. 233 dated CS No. 57178/16 3 / 18 RAHUL GARG VS. R.K. & ORS.
30.04.2014 and another complaint to Assistant Commissioner of Police, Naraina, New Delhi, to initiate action against the defendant no. 1. However, despite the said complaints, the construction work on the roof top of the premises in question still continued. As per the plaintiff the construction being carried out by the defendant no. 1 on the roof top of Flat No. I279, DDA Flat, Naraina Vihar, is not only illegal but also endangers the life and property of the occupants of the building. Further as per the plaintiff, all the occupants of the ground floor, first floor and second floor of the said building have common and equal rights to the terrace and the same cannot be grabbed by the defendant no.1 by his illegal construction. In view of the above facts and circumstances, plaintiff has filed the present suit praying for aforesaid reliefs. Trial and Evidence
4. Summons of the suit and notice of the application under Order XXXIX Rule 1 and 2 CPC was issued to both the defendants. Both the defendants filed their written statements.
5. As per the written statement filed by the defendant no. 1, the plaintiff has not come to the Court with clean hands, as the plaintiff along with his father and relatives, has been creating undue pressure on the defendant no.1 to grab the flat where defendant no. 1 is residing and which belongs to the wife of the defendant no. 1. It is also claimed by the defendant no. 1 that neither the wife of defendant no. 1 has raised any illegal and unauthorized construction on the roof top of the premises bearing flat no. I279, Second Floor, DDA LIG Flats, Naraina Vihar, New Delhi, nor the plaintiff or other occupants in the same building have common right on the roof top. It is the case of the defendant no. 1 that his wife merely wanted to cover the terrace with a shed with the use of light weight material and would be increasing the CS No. 57178/16 4 / 18 RAHUL GARG VS. R.K. & ORS.
height of the surrounding wall up to 5ft. As per defendant no. 1, the same is permissible under the "Policy and Procedure for Permission and Regularization of Additions/Alterations in DDA Flats", especially para 1(21) and 2(3) thereof. As per defendant no.1, the necessary prior intimation was also given to the SHO concerned and the competent civil authority vide letter dated 25.04.2014.
6. Further, as per the written statement of the defendant no. 1, suit of plaintiff is also liable to be dismissed on the ground of nonjoinder of necessary party as the wife of defendant no. 1 is the owner of flat bearing no. I279, Second Floor, DDA, LIG Flats, Naraina Vihar, New Delhi. It is also stated by the defendant no. 1, in his written statement that, Junior Engineer of MCD as well as police officials of PS Naraina, New Delhi, had visited the premises in question but they left the spot without taking any disciplinary action or without booking the premises either in DMC Act or any other Act, as no illegal construction was found by them. Further, in his written statement, the defendant no. 1 has denied the common roof rights as alleged by the plaintiff but he has admitted that the top floor allottees have the exclusive rights, to use the terrace subject to the condition that the allottees of lower floors' flats shall not have any right to use the terrace for sleeping or any other purpose. It is also the case of defendant no. 1 that there is no intention on the part of the wife of defendant no. 1 to remove the water tanks of the lower floor flats from the terrace. The defendant no. 1 has also admitted the photographs filed by the plaintiff but it is his case in the written statement filed by him that his wife had got constructed the said shed structure by taking support of the parapet wall as the base of the construction of the shed and that no room was got being constructed on the terrace and further that the CS No. 57178/16 5 / 18 RAHUL GARG VS. R.K. & ORS.
parapet wall was raised upto the height of 5ft only and provision for erection of iron pipe was made in order to put fiber sheets over the shed. As per the defendant no.1, there is nothing illegal or beyond the policy which is shown in the said photographs. In view of the above submissions, the defendant no. 1 has prayed for dismissal of the present suit.
7. As per the written statement filed by the defendant no. 2, the suit is not maintainable for want of statutory notice under Section 477/478 of Delhi Municipal Corporation Act, 1957. It is further the case of defendant no. 2 that as per the policy of DDA for addition/alteration in DDA flats, "covering of open terrace with sloping roofs upto 9ft height with light weight material, e.g. fiber glass/AC sheets/G1 sheets with pipes and standard angle/iron section etc. and enclosing with glazing" can be carried out with prior intimation/permission of the concerned agency, i.e. DDA/MCD as per the prescribed procedure. As per the written statement of defendant no. 2, the owner/occupier of the property bearing no. I279, Naraina, LIG DDA Flats, had given intimation on 25.04.2014 regarding the addition/alteration to the defendant no. 2 as per policy. However, it is conceded by the defendant no. 2 that one wall raised in the center on the roof under the PVC sheet, which is not allowed.
8. The plaintiff filed separate replications to the written statement of both the defendants reiterating the averments made in the suit.
9. On completion of the pleadings, issues were framed vide order dated 18.12.2014 and framing of additional issues and amendment of previous issues was carried out on 06.01.2015. The amended issues as framed are reproduced hereunder.
(1) Whether the plaintiff is entitled to a decree of permanent injunction restraining the defendant no.1 from raising illegal CS No. 57178/16 6 / 18 RAHUL GARG VS. R.K. & ORS.
construction in contravention with the DDA policy/applicable building bylaws on the roof top of the entire block/building having 6 allottees including flat no.279 and flat no.280 of the parties in DDA, LIG flats, Naraina Vihar, New Delhi and a direction to remove the illegal construction thereon made by the defendant no.1?OPP.
(2) Whether the plaintiff is entitled to a decree of mandatory injunction directing the defendant no.2 to demolish the structure raised by the defendant no.1 on the roof top of the entire block/building having 6 allottees including flat no.279 and flat no.280 of the plaintiff in DDA, LIG Flats, Naraina Vihar, New Delhi?OPP.
(3) Whether the suit is not maintainable on the ground that the plaintiff has not approached this court with clean hands?OPD1. (4) Whether the suit is liable to be dismissed for want of cause of action against defendant no.1?OPD1.
(5) Whether the suit is liable to be dismissed for want of non joinder of necessary party?OPD1.
(6) Whether the suit is not maintainable for want of the statutory notice under Section 477/478 of the Delhi Municipal Corporation Act?OPD2.
(7) Relief.
10. In order to prove its case, plaintiff examined six witnesses who are as follows:
i) Plaintiff examined himself as PW1, tendered his evidence by way of affidavit, ExPW1/1 and relied upon the documents, viz. copy of sale CS No. 57178/16 7 / 18 RAHUL GARG VS. R.K. & ORS.
deed in respect of flat no.I280, Second Floor, block/pkt1, Naraina Residential Scheme, New Delhi, Ex.PW1/A(OSR); site Plan Ex.PW1/B; photographs of common roof top of the premises in question Ex.PW1/C(Colly); copies of various complaints made to different authorities, all dated 25.04.2014, Ex.PW1/D to Ex.PW1/K; and Copy of gmail dated 01.05.2014 alongwith 7 images Ex.PW1/L(Colly).
ii) Sh. Mahesh Kumar Garg, father of the plaintiff was examined as PW2 who tendered his affidavit by way of evidence Ex.PW2/1 and relied upon the documents, viz. Copy of the letter dated 02.05.2014 issued from Assistant Engineer Building, Karol Bagh Ex.PW2/A; and copy of the letter dated 30.09.2014 issued by the Additional Dy. Commissioner of Police, South West District Ex.PW2/B.
iii) Sh. Ram Chander Receptionist, Care Taker Department, North Civic Centre, Shyam Prasad Mukharjee Marg, NDMC, New Delhi, was examined as PW3. PW3 proved complaint recorded at serial no.266 dated 28.04.2014, complaint recorded at serial no.291 dated 08.05.2014 and complaint recorded at serial no.363 dated 12.06.2014 as Ex.PW3/A, Ex.PW3/B & Ex.PW3/C respectively. PW3 further stated that all the said exhibits have been forwarded to Dy. Commissioner, Zonal Office at Karol Bagh for further action on 13.01.2017. PW3 proved the letter dated 13.01.2017 and the note sheet as Ex.PW3/D(Colly.).
iv) Sh. Rajnish Kumar Kinkar, Assistant Section Officer, 26 th Floor, Vigilance Department, North Delhi Municipal Corporation, Civic Centre, Shyam Prasad Mukharjee Marg, NDMC, New Delhi was examined as PW4. PW4 brought the status report of Vigilance Department(North) DMC, Civic Centre, Minto Road, New Delhi with regard to the complaint filed by CS No. 57178/16 8 / 18 RAHUL GARG VS. R.K. & ORS.
M.K.Garg regarding illegal construction of common roof of I279, Naraina Vihar, DDA Flats. PW4 proved the copy of the said status report alongwith diary entries dated 26.06.2014 and 01.07.2014 as Ex.PW4/A(colly.).
v) SI Vikas, No. D5467, PS Naraina New Delhi, was examined as PW5. The said witness proved DD entries dated 30.04.2013 and 07.05.2014 received at PS Naraina from the complainant, namely, Sh. M.K. Garg as Ex. PW5/A (OSR) and Ex. PW5/B (OSR) respectively. He also proved DD No. 17A, DD No. 21A and DD No. 50B all dated 25.04.2014 PS Naraina as Ex. PW5/C to Ex. PW5/E respectively. He also proved DD No. 78B dated 30.04.2014 PS Naraina as Ex. PW5/F and DD No. 19A and 58B, both dated 07.05.2014 PS Naraina as Ex. PW5/G and Ex. PW5/H respectively.
vi) Sh. Chander Mani Garg, Executive Engineer, WDV, Vikas Minar, 1st Floor, DDA Delhi, was examined as PW6. The said witness proved the 'policy and procedure for permission and regularization of additions/alterations in DDA flats' and notification dated 29.06.1987 as Ex.PW6/A and Ex. PW6/B. As per the said witness any alteration and addition on roof can be allowed only with the consent of all the residents of that particular block and with the approval of DDA and MCD in which the area belongs.
11. The above witnesses were discharged after being crossexamined by counsels for defendants or without crossexamination despite opportunity. Thereafter, plaintiff closed his evidence and the matter was fixed for DE.
12. In order to prove his case defendant no. 1 examined two witnesses which are as follows:
i) Defendant no. 1 examined himself as DW1, tendered his CS No. 57178/16 9 / 18 RAHUL GARG VS. R.K. & ORS.
evidence by way of affidavit as Ex. DW1/1 and relied upon documents, viz. copy of policy and procedure for permission and regularization of additions/alterations in DDA flats as Ex. DW1/A (OSR); copies of intimations dated 25.04.2014 given to SHO, PS Naraina, to MCD office, Karol Bagh and to EE, MCD, Karol Bagh, as Ex. DW1/B (OSR), Ex. DW1/C and Ex. DW1/D respectively; copy of letter dated 27.09.1997 as Mark A and copy of conveyance deed dated 25.11.2010 as Ex. DW1/F.
ii) Sh. S.K. Singal, Assistant Enginner (Building), Karol Bagh Zone, NDMC, Nigam Bhavan, Anand Parvat, New Delhi, was examined as DW2, who tendered his evidence by way of affidavit as Ex. DW2/A and relied upon documents, viz. Work stop notice dated 02.05.2014 as Mark DW2/A and status report dated 10.07.2014 as Ex. DW2/1.
13. The above witnesses were discharged after being cross examined by counsel for plaintiff. Thereafter, DE was closed and matter was listed for final arguments. Written submissions have also been filed by plaintiff and defendant no. 1.
Findings
14. I have heard Ld. Counsel for the plaintiff and Ld. Counsel for both the defendants and have perused the record.
15. After hearing both sides, going through the record and written submissions and after giving a thoughtful consideration, my issue wise findings are discussed as under and issues of maintainability are taken up first.
Issue no.3 - Whether the suit is not maintainable on the ground that the plaintiff has not approached this Court with clean hands? OPD1 15.1 The onus to prove the same was on the defendant no.1. The defendant no.1 has tried to put forth a case that the plaintiff has filed the present CS No. 57178/16 10 / 18 RAHUL GARG VS. R.K. & ORS.
case with malafide intention of purchasing the flat of the defendant no.1. However, apart from a bare averment in this regard, no cogent material has been brought on record by the defendant no.1. There is nothing on record to show that the plaintiff ever intended to purchase the flat of defendant no.1. The said issue is decided in favour of the plaintiff and against the defendant no.1.
Issue no.4 - Whether the suit is liable to be dismissed for want of cause of action against the defendant no.1? OPD1.
Issue no.5 - Whether the suit is liable to be dismissed for nonjoinder of necessary party? OPD1.
15.2 Both the above issues are being dealt together for the sake of convenience. In this regard, it is the case of the defendant no.1 that the present suit has been filed by the plaintiff only under the apprehension that the defendant no.1 would raise illegal construction over the terrace and the cause of action for filing the present suit did not ever arise. It is also the case of the defendant no.1 that he is not the owner of the property bearing flat no I279, IInd Floor, Naraina LIG, DDA Flat and it is his wife who is the owner of the said property. As such, it is the case of the defendant no.1 that the present suit is bad for nonjoinder of necessary party. 15.3 On the basis of the record, it can be noted that there is no dispute to the fact that the construction on the terrace of the property bearing no. I280 and I 279, IInd Floor, Naraina LIG, DDA Flat had already begun at the time of the filing of the suit. Thus, the argument that the the suit is premature is totally devoid of merit. Further, defendant no.1 is indisputably one of the occupier of flat no. 1279, IInd Floor, Naraina LIG, DDA Flat and husband of the owner of the said flat. It is not the case of the defendant no.1 that it is the wife who is getting the construction done from her income. The relief of injunction against illegal construction can be claimed against the person in respect of whose actions the plaintiff alleges to be aggrieved and further plaintifff being the dominus litus, it is for him to choose against whom he wishes to seek the relief. There is nothing on record to show that the defendant no.1 CS No. 57178/16 11 / 18 RAHUL GARG VS. R.K. & ORS.
is not a party to the construction done on the terrace of the flat nos. I280 and I279, IInd Floor, Naraina LIG, DDA Flat. In my opinion, it cannot be said that the issue involved cannot be decided in the absence of the wife of the defendant no.1. The wife of the defendant no.1 can at best be regarded as proper party but not as the necessary party and thus, the present suit is maintainable against the defendant no.1 and the suit cannot be dismissed for nonjoinder of necessary party. The aforesaid issues are also decided in favour of plaintiff and against defendant no.1.
Issue no.6 - Whether the suit is not maintainable for want of the statutory notice under Section 477/478 of the Delhi Municipal Corporation Act? OPD2.
15.4 It is argued on behalf of defendant no.2 that as no prior notice was given to defendant no.2, the present suit is barred by Section 477/478 Delhi Municipal Corporation Act. I am not inclined to accept the said argument in as much as the notice of the suit can also be deemed to be the notice u/S 477/478 Delhi Municipal Corporation Act. Further, the nature of the present suit has to be considered in light of the intent of the legislation and in view of the fact that the purported intimation for raising a shed on the rooftop of the premises 279, IInd Floor, Naraina LIG, DDA Flat, which was sent to the defendant no.2 is dated 25.04.2014; and complaints sent against the said construction to the defendant no.2 are also dated 25.04.2014. The present suit is filed on 5.5.2014. Thus, in view of the said facts and circumstances, in my opinion, the requirement of notice u/s. 478 DMC Act can be waived under sub section 3 of S. 478 of the DMC Act, which provides for an exception in a case where only relief claimed 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. Thus, the present suit cannot be said to be not maintainable for want of statutory notice u/s. 477/478 DMC Act. The said issue is decided in favour of the plaintiff and against the defendant no.2 CS No. 57178/16 12 / 18 RAHUL GARG VS. R.K. & ORS.
Issue no 1 Whether the plaintiff is entitled to a decree of permanent injunction restraining the defendant no.1 from raising illegal construction in contravention with the DDA policy/applicable building bylaws on the roof top of the entire block/building having 6 allottees including flat no.279 and flat no.280 of the parties in DDA, LIG flats, Naraina Vihar, New Delhi and a direction to remove the illegal construction thereon made by the defendant no.1?OPP.
Issue no. 2 - Whether the plaintiff is entitled to a decree of mandatory injunction directing the defendant no.2 to demolish the structure raised by the defendant no.1 on the roof top of the entire block/building having 6 allottees including flat no.279 and flat no.280 of the plaintiff in DDA, LIG Flats, Naraina Vihar, New Delhi?OPP.
Issue no. 7 - Relief?
15.5 In order to prove its case, the plaintiff has examined six witnesses, as already mentioned above. The relevant witnesses, their deposition and documents proved by the plaintiff are as follows: Ex. PW1/A is the sale deed dated 12.11.2010, in favour of the plaintiff, wherein the subject matter of the sale is described as "DDA built up LIG Flat bearing no. 280 on second floor, Block/Pocket1, situated at Naraina Residential Scheme, Naraina, New Delhi, along with free hold rights of the land underneath and with roof rights".
Ex. PW1/B is the site plan of the property showing the flats of the plaintiff and the defendant no.1 in the same building on the second floor and the terrace above their floor.
Ex. PW1/C (colly) are the photographs of the terrace showing that the parapet wall of the terrace is being extended with bricks. Ex. PW2/A is the letter dated 2.5.2014 from NDMC to SHO, PS, Naraina Vihar, wherein the SHO, PS Naraina Vihar has been asked to take action u/s. 344(2) DMC Act and to stop construction activity at I279, LIG, DDA Flat, Naraina Vihar, New Delhi, and to remove the workmen present in the premises and to seize the construction material.
CS No. 57178/16 13 / 18 Ex. PW2/C is the letter dated 30.9.2014 issued from the office of DCP, South West District, to Joint Commissioner of Police, Crime, Delhi, in response to Ex. PW2/A. It is stated therein that building material had been seized on 7.5.2014 vide DD No. 58B under Section 344(2) DMC Act, PS Naraina and that no further police action was required.
Ex. PW6/A is the Policy and Procedure for permission and regularization of additions / alterations in DDA flats. Witness deposed that for any alteration and addition of roof terrace, consent of all the residents of that particular block along with approval of DDA and MCD was required. No question was put to the said witness in crossexamination despite opportunity.
15.6 It may be seen from the above that the plaintiff has proved the sale deed to show that he has roof rights and even the defendant no.1, in his written statement, has not disputed the roof rights of the top floor allottees. It is not the case of the defendant no.1 that the plaintiff is not the lawful owner of the flat no. I280, 2 nd Floor, DDA LIG Flats, Naraina, New Delhi. As regards the common roof rights of the lower floor flat owners, we are not concerned with the same as they are not the parties to the suit.
15.7 As regards the construction being raised by the defendant no.1 on the roof top, it is pertinent to note that the plaintiff as well as the defendant no.1 are both relying upon the same policy viz. Policy and Procedure for permission and regularization of additions / alterations in DDA flats, which is Ex. PW6/A as well as Ex.DW1/A. As per the plaintiff, the construction being raised by the defendant no.1 is beyond the scope of the said policy and as such the same is illegal and is liable to be demolished. Per contra, as per the defendant no.1, the said construction is within the permissible limits and necessary intimation was also sent to concerned authorities in this regard. The most important material and witness in this regard had to be the written statement of the defendant no.2 and DW2. As already stated above, as per the written statement of the defendant no.2, due intimation was given qua addition/alteration to the roof of property bearing no. I279, Naraina, LIG CS No. 57178/16 14 / 18 RAHUL GARG VS. R.K. & ORS.
DDA Flats, and it is only the wall raised in the center on the roof under the PVC sheet, which was not allowed. I nterestingly, the witness DW2/Sh. S.K. Singhal, Assistant Engineer (Building) Karol Bagh Zone, NDMC, in his cross examination, stated that he was not well aware about the documents required with the intimation given for raising construction on roof top of a building; and that he had not gone to the office file before he came to the court. He further stated in his cross examination that there was an illegal construction on the roof top of the building as on 02.05.2014 and that was the reason why work stop notice was given by the Assistant Engineer (Building) which is on record as Mark DW2/A. It may also be noted that the said witness in his evidence by way of affidavit has deposed in para 10 that the present suit is not maintainable and is liable to be dismissed since it has been filed to settle scores with defendant no. 1. However, during crossexamination, he has stated that he was unaware if there was any conversation with regard to the settled score between the plaintiff and defendant no. 1. The said witness has also deposed in para 13 of his evidence by way of affidavit that the internal wall raised by the occupier/owner was liable to be demolished since the said wall was against the policy of DDA. However, during crossexamination he could not state whether the said wall stood demolished or not. Thus, from a reading of the crossexamination of the said witness, it can be said that he is not aware of the complete facts and circumstances and could not support the stand of the defendants in its entirety. Thus, his testimony is not of any support to the defendants.
15.8 Accordingly, the stand of defendant no.2, in its written statement, cannot be taken to be conclusive in the present case and the matter has to be examined on the basis of the further material on record. That is to say, the nature of construction has to be examined in light of the admitted policy viz. Policy and Procedure for permission and regularization of additions / alterations in DDA flats. The defendant no.1, in its written statement and during the course of arguments has relied upon para 1(21), para 2(3) and para 3(3) of the said policy. He has not CS No. 57178/16 15 / 18 RAHUL GARG VS. R.K. & ORS.
disputed the photographs filed by the plaintiff. It can be seen from the photographs being Ex. PW1/C (colly) that the defendant no. 1 has raised the height of the parapet wall on the roof with bricks. In my considered opinion, the said alteration/addition in the structure is nowhere permitted in the policy. Reference in this regard may be made to para 1(8) of the policy dealing with 'condonable items' which permits raising the wall of balcony/terrace parapet with grill/glazing upto 5ft height but not with bricks. Further, reliance placed by defendant no. 1 on para 1(21) of the policy is of no relevance as it is not even his case in the written statement filed by him that the parapet walls are to be raised for the purpose of shifting of water storage tank or putting additional water storage tank. Coming now to para 2(3) of the policy which allows "covering of open terrace with sloping roofs upto 9 feet height with light weight material eg. Fiber glass/AC sheets/G1 sheets with pipes and standard anger /iron section etc and enclosing with glazing", the same is also not applicable to the raising of parapet walls with bricks. Reliance placed by the defendant no. 1 on para 3(3) which contains provision for the upper floor allottee of two storeyed flat to use the roof terrace for extra coverage is also not applicable as the same requires prior permission which has not been placed on record. Thus, raising the parapet wall with bricks cannot in any way come within the purview of the aforesaid policy and the same is beyond policy and is liable to be demolished. It may also be noted that the copy of status report dated 10.07.2014 which is filed by DW2 and which is Ex. DW2/1 is also of no help to the defendants in as much as it simply says that no construction was found to be going on at the site on 09.07.2014 and that intimation was given by the owner/occupier of the property bearing Flat No. I279, 2nd Floor, Naraina Vihar, DDA Flats, New Delhi on 25.04.2014 regarding the addition/alteration. However, no conclusive finding is given as to what was the exact construction made till 09.07.2014 and how much of it was within the four corners of prescribed policy. The intimation which are Ex. DW1/A to Ex. DW1/D and relied upon by the CS No. 57178/16 16 / 18 RAHUL GARG VS. R.K. & ORS.
defendant no. 1 are also of no help to defendant no. 1 in as much as the policy clearly prescribes that the intimation has to be given in the prescribed form along with documents as given in para 3. Neither DW1 nor DW2 have been able to prove that the documents which are mentioned in para 3 of the policy were ever submitted along with the intimation being Ex. DW1/B to Ex. DW1/D. Further, it may also be noted that the said intimation Ex. DW1/B to Ex. DW1/D have been given by one Rahul Gupta and not by the defendant no. 1 himself and even the said Rahul Gupta has not been examined as a witness in the present case to prove whether the documents mentioned in para no. 3 of the policy were submitted to the department or not. 15.9 As regards any further structure including the iron rods, shed, or any other permanent structure which has been or is being constructed by the defendant no. 1 on the roof of Flat No. I279, 2nd Floor, Naraina Vihar, DDA Flats, New Delhi, it is the responsibility of defendant no. 2 to ensure that the same is raised strictly in compliance with the policy and in case there is any illegal construction in contravention with the policy, the same is liable to be demolished by defendant no. 2.
15.10 Relief.
Thus, in view of the aforesaid discussion, plaintiff is entitled to grant of following prayers and relief in his favour:
i) Plaintiff is entitled to a decree of permanent injunction restraining the defendant no.1 from raising illegal construction in contravention with the DDA policy/applicable building bylaws on the roof top of the entire block/building having 6 allottees including flat no.279 and flat no.280 of the parties in DDA, LIG flats, Naraina Vihar, New Delhi and a direction to remove the illegal construction especially the 'raising of parapet walls with bricks' made by the defendant no.1 thereon.CS No. 57178/16 17 / 18
RAHUL GARG VS. R.K. & ORS.
ii) Plaintiff is entitled to a decree of mandatory injunction directing the defendant no.2 to demolish the parapet walls raised by bricks by defendant no. 1 on the roof top of the entire block/building having 6 allottees including flat no.279 and flat no.280 of the parties in DDA, LIG flats, Naraina Vihar, New Delhi. The plaintiff is further entitled to a decree of mandatory injunction directed the defendant no. 2 to demolish the remaining structure raised by the defendant no.1 on the roof top of the entire block/building having 6 allottees including flat no.279 and flat no.280 of the plaintiff in DDA, LIG Flats, Naraina Vihar, New Delhi, only in so far as it is in contravention of "P olicy and Procedure for Permission and Regularization of Additions / Alterations in DDA flats".
iii) Let compliance be made by the defendant within one month. It is further ordered that the cost of demolition be assessed by defendant no. 2 within one week and the same be deposited by defendant no. 1 with the defendant no. 2 within 2 weeks thereafter. In case of failure of defendant no. 1 to deposit cost of demolition, the same shall be deposited by plaintiff in the first instance and the plaintiff shall be liable to recover the same as part of cost of the suit in the present case.
Suit of the plaintiff is decreed as above. Costs of the suit are also awarded in favour of the plaintiff.
Decreesheet be prepared accordingly.
File be consigned to record room after due compliance.
Announced in the open (SWATI GUPTA) Court today on 26.08.2022. ARC/ACJ/CCJ(ND)/PHC/New Delhi CS No. 57178/16 18 / 18 RAHUL GARG VS. R.K. & ORS.