Delhi District Court
Sh. Yogesh Sethi vs Smt. Neelam Sharma on 7 June, 2013
IN THE COURT OF SHRI ANIL KUMAR: JSCC: ASCJ:
GUARDIAN JUDGE (NORTH EAST) KKD COURTS, DELHI.
Suit No. : 288/11
Unique Case ID No. : 02402C0200372011
Sh. Yogesh Sethi,
S/o Sh. Om Prakash Sethi,
R/o Flat No. 203-D,
Pocket J & K, Dilshad Garden,
Delhi. ...........Plaintiff.
VERSUS
1. Smt. Neelam Sharma,
W/o Sh. D.P. Sharma,
R/o Flat No. 203-D,
Pocket J & K,
Dilshad Garden, Delhi.
2. Sh. R.B. Gupta,
S/o Sh. K.C. Gupta,
R/o R/o Flat No. 203-D,
Pocket J & K,
Dilshad Garden, Delhi.
3. M.C.D.
Town Hall, Chandni Chowk,
New Delhi
Through Its Commissioner
4. S.H.O.
P.S. Seemapuri, Delhi. .........Defendants
Suit No. 288/11 Page 1 of 9 pages
Date of Institution of the suit : 11/07/2011
Final Arguments heard on : 10/05/2013
Date of Judgment : 07/06/2013
SUIT FOR PERMANENT AND MANDATORY INJUNCTION
JUDGMENT :-
1. This is a suit for permanent and mandatory injunction. By way of present suit plaintiff has sought injunction for restraining the defendant no. 1 and 2 from raising further illegal constructions and remove unauthorised constructions in the suit properties. Plaintiff has further sought direction to defendant no. 3 and 4 for demolishing the illegal and unauthorized construction in the suit properties which is dangerous to the life, liberty and property of the plaintiff and public of the locality at large. Plaintiff has further sought for initiating a departmental enquiry against the officials of defendant no. 3/ MCD for not taking legal and proper steps in the matter since 2002.
2. The case of the plaintiff is that plaintiff is residing with his family members in flat No 203-D which was alloted to the father of the plaintiff from DDA/MCD. Defendant no. 1 and 2 are residing below the flat of plaintiff at ground floor and first floor i.e. Flat Nos. 203-A and 203-B, Pocket J&K, Dilshad Garden, Delhi (hereinafter referred as to suit properties). Plaintiff has submitted that defendant no. 1 and 2 have illegally constructed and raised unauthorized structure in the their flats after demolishing the natural foundation of the said building which was actually constructed by DDA/MCD and presently looking after and maintenance of the said building is under the supervision and control of the defendant no. 3. Plaintiff has further submitted that Suit No. 288/11 Page 2 of 9 pages defendant no. 1 and 2 have illegally constructed the unauthorized construction in the suit properties and weakened the actual strength of the said building. In the month of December 2002, plaintiff approached and made request to both the defendant no. 1 and 2 for not to construct illegal and unauthorized construction in the suit properties but no fruitful result came out. Plaintiff made written complaint to the concerned authority against the defendant no. 1 and 2 regarding the illegal and unauthorized construction as both of them have constructed separate room beyond the structure and without the sanctioned plan by the concerned authority. Plaintiff made several complaints against defendant no. 1 and 2 before concerned authority / defendant no. 3 and 4 for taking legal action against them but no action has been taken in this regard against defendant no. 1 and 2 by the defendant no. 3 and 4 till date. Plaintiff has further submitted that defendant no. 1 and 2 threatened the plaintiff with dire consequences. Plaintiff has further submitted that due to illegal constructions raised by defendant no. 1 and 2 without sanction, it is very danger to the passer-by, residents / neighbourhood as well as plaintiff and the other locality persons those are living in the said building. Hence, the present suit.
3. Defendant no. 1 and 2 have contested the suit by filing their joint written statement. In their WS, defendant no. 1 and 2 have stated that they have not raised illegal and unauthorized construction in their flats / suit properties. They have further denied that they threatened the plaintiff with dire consequences. It is further denied that due to illegal constructions raised by them it is very danger to the Suit No. 288/11 Page 3 of 9 pages passer-by, residents / neighbourhood as well as plaintiff and the other locality persons those are living in the said building.
4. Defendant no. 3 has contested the suit by filing its written statement. In its WS, it is stated that the concerned officials of the defendant no. 3 inspected the premises on 23/07/2011 and found that there was no construction was going on at the site and the property in question is very old one. It is further submitted that defendant no. 1 and 2 have raised the construction in the suit properties in year 2002. It was surprised why the plaintiff kept one up to 2011. It seems that plaintiff has filed the present suit with the ulterior motive only to settle their personal disputes by way of present suit and defendant no. 3 has nothing to do with the case.
5. Defendant no. 4 has not filed any WS.
6. Plaintiff has filed replications to the WS of defendants and therein he has denied the contents of the WS which are in denial of the plaint and he has reiterated the contents of the plaint.
7. From the pleadings of the parties, the following issues were framed by my Ld. Predecessor vide Order dated 16/02/2012.
(i) Whether the present suit is barred by Section 477/478 of the DMC Act? OPD3
(ii) Whether the plaintiff is entitled for the relief of permanent injunction as prayed for by the plaintiff in the plaint? OPP
(iii) Whether the plaintiff is entitled for the relief of mandatory injunction as prayed for by the plaintiff in the plaint? OPP
(iv) Relief.
8. In support of his case, plaintiff has got examined himself Suit No. 288/11 Page 4 of 9 pages as PW1 and Sh. Sanjay Kumar, Executive Engineer (Building I), Shahdara North Zone, EDMC, Keshav Chowk, Shahdara, Delhi as PW2. Plaintiff has proved on record two site plans as Ex. PW 1/3 and Ex. PW 1/4, photocopies of complaint are Ex. PW 1/5 to PW 1/11, status report as Ex. PW 2/1, cop of letter sent to DDA as Ex. PW 2/2.
9. In support of their case, defendant no. 1 and 2 have got examined themselves as DW 1 and DW 2 respectively. Defendant no. 3 did not lead any defence evidence. Defendant no. 1 and 2 have proved on record copy of their identity proofs as Ex. DW 1/D1 and Ex. DW 2/D1.
10. I have heard the submissions of Ld. Counsel for plaintiff, Ld. Counsel for defendant no. 1 and 2 and Ld. Counsel for defendant no. 3. I have perused the entire material on record . My issue wise findings are as under :-
Issue (i) : Whether the present suit is barred by Section 477/478 of the DMC Act? OPD3 Onus to prove this issue is on defendant no. 3. Ld. Counsel for defendant no. 3 has submitted that plaintiff has not served any notice on the Municipal Corporation as required under Section 478 of DMC Act. Hence, present suit is barred against Municipal Corporation.
Section 477 of DMC Act deals with protection to Municipal Corporation, Municipal Authority, Municipal officer/officials against act done in good faith. There is no any plea of act done in good faith on the part of defendant no. 3. Hence it can not be said that this suit is barred under Section 477 of DMC Act.
Suit No. 288/11 Page 5 of 9 pages In so far Section 478 of DMC Act concerned, this section requires two months service of notice before institution of suit against Municipal Corporation except suit for injunction. This is a suit for injunction of urgent nature and covered under section 478 (3) DMC Act and no pre-institution notice is required in present case. Hence, it is hold that this suit is not barred under Section 478 of DMC Act. Accordingly, this issue is decided against the defendant no. 3 and in favour of plaintiff.
Issue (ii) : Whether the plaintiff is entitled for the relief of permanent injunction as prayed for by the plaintiff in the plaint? OPP Onus to prove this issue is on plaintiff. Plaintiff has filed present suit in respect to illegal and unauthorized construction in suit properties i.e. flats no. 203-A and 203-B, Pocket-J & K, Dilshad Garden, Delhi. Plaintiff is also residing in the same building at upper floor. Plaintiff has deposed in evidence that in the month of December 2002 defendant no. 1 and 2 have raised unauthorized construction in the suit properties and defendant no. 3 and 4 failed to take necessary action against the illegal and unauthorized construction raised by defendant no. 1 and 2 despite his complaint. He has further deposed that defendants no. 1 and 2 have covered the open space in the front courtyard as well as in the back courtyard and converted the same into a room, the said defendants have also extended the balcony and converted the same into a room without obtaining any sanction. No any suggestion in denial has been specifically put on behalf of defendants no. 1 and 2 in respect to these specific construction of Suit No. 288/11 Page 6 of 9 pages room. Hence, construction of rooms by converting the open space and verandah in rooms is liable to be deemed as admitted. DW 2 has admitted in his cross-examination that he has carried out the construction of one room in the front and one store in the back of his property without obtaining any sanction from MCD or DDA. In view of these evidences, there is no any doubt that defendants no. 1 and 2 have raised unauthorized construction in the suit properties. Further construction by the defendants no. 1 and 2 in the suit properties without any sanction or approval can not be ruled out. Plaintiff has deposed to the effect that on 26/05/2011, defendant no. 1 and 2 tried to raise further illegal and unauthorized construction in the suit properties, then matter was reported to the police. In view of these evidence, I am of opinion, there is still apprehension of raising unauthorized construction by defendants no. 1 and 2 in the suit properties. Plaintiff being in occupation of upper floor of the same building has right to oppose illegal and unauthorized construction on the lower floors of the same building. It is hold that the plaintiff is entitled for decree of permanent injunction as claimed. Hence, it is hold that plaintiff has been able to prove this issue. Accordingly, this issue is decided in favour of plaintiff and against the defendants no. 1 and 2.
Issue (iii) : Whether the plaintiff is entitled for the relief of mandatory injunction as prayed for by the plaintiff in the plaint? OPP Onus to prove this issue is on plaintiff. By way of present suit plaintiff has sought mandatory injunction for direction to defendant Suit No. 288/11 Page 7 of 9 pages no. 3 and 4 to demolish the illegal and unauthorized construction raised by defendant no. 1 and 2 in the suit properties. Present suit has been filed by plaintiff on 11/07/2011. Ld. Counsel for defendants have argued that suit for mandatory injunction is barred by limitation as alleged unauthorized and illegal construction by defendants no. 1 and 2 raised in year 2002. I find force in the submission of Ld. Counsel for defendants on the point of limitation.
During cross-examination plaintiff has admitted that illegal and unauthorized construction was raised by defendants no. 1 and 2 in year 2002 and after year 2002 no illegal and unauthorized construction was raised by defendants no. 1 and 2. Under Art. 113 of Limitation Act, three years limitation has been provided for a suit for mandatory injunction. Hence, present suit filed in year 2011 is clearly barred by limitation for relief of mandatory injunction. Plaintiff has further prayed for direction for initiation of departmental inquiry against the official of defendant no. 3 and 4. In my opinion initiation or non- initiation of departmental inquiry by a department against its officials on a complaint of third person does not constitute a civil dispute between the third person and department. Hence, mandatory injunction sought by plaintiff by way of present suit can not be granted. Accordingly, this issue is decided against the plaintiff and in favour of the defendants.
Issue (iv) : Relief.
In view of above observations, discussions and findings, this suit is partly decreed in favour of the plaintiff and against the defendants no. 1 and 2 and thereby defendants no. 1 and 2 are Suit No. 288/11 Page 8 of 9 pages restrained from raising any illegal and unauthorized construction in the suit properties i.e. 203-A and 203-B, Pocket-J&K, Dilshad Garden, Delhi without obtaining any sanction or approval of the concerned authority. Suit in respect to other relief sought in prayer clause is dismissed.
Decree sheet be prepared accordingly.
File be consigned to record room.
This file be tagged with miscellaneous case file arisen from present suit.
Announced in the open court (ANIL KUMAR)
on this 7th day of June, 2013 JSCC/ASCJ/G.Judge (NE)
KKD Courts, Delhi.
Suit No. 288/11 Page 9 of 9 pages