Delhi District Court
This Is A Suit For Permanent Prohibitory ... vs Unknown on 24 February, 2021
In the Court of Shri Ajay Kumar Malik : Additional Senior Civil Judge of
Central District at Tis Hazari Courts, Delhi
Suit No. 1912/2016
In the matter of :-
Shri Lakshman Singhal
S/o Late Sh. Kishan Lal,
R/o 2121/2, Veer Gali,
Sadar Bazar, Delhi- 110006
........Plaintif
VERSUS
1. Mr. Imran Ali
S/o Sh. Shokat Ali
R/o 8153, Gali No. 5,
Bara Hindu Rao
Delhi-110006
Also at:
2184, Bagichi Raghunath,
Basti Jhulan, Sadar Bazar,
Delhi-110006
2. Sh. Harish Ahmed
S/o Sh. Amhed Din,
R/o 8156, First Floor,
Chimni Mill, Bara Hindu Rao,
Delhi-110006
Also at:
2184 Bagichi Raghunath,
Basti Jhulan, Sadar Bazar,
Delhi-110006.
3. Sh. Narinder @ Billa,
2184/85/86, Basti Jhulan,
Sadarnala Road, Sadar Bazar,
Delhi-110006.
CS No.1912/2016 Page no. 1 of 9
4. North Municipal Corporation of Delhi
Through its Commissioner
Dr. Shayama Prasad, Civic Centre,
Jawahar Lal Nehru Marg,
New Delhi-110002
.....Defendants
Date of institution : 05.07.2016
Reserved for Judgment : 09.02.2021
Date of decision : 24.02.2021
Suit for Permanent Prohibitory and Mandatory Injunction
JUDGMENT
1. This is a suit for Permanent Prohibitory and Mandatory Injunction filed by Plaintiff against the defendants with the prayer that decree of permanent injunction may be passed against defendants No. 1, 2 and 3 restraining them from raising unauthorised construction in property bearing No. XIV/2184-85, Basti Julahan, Bagichi Raghu Nath, Sadar Bazar, Delhi (hereinafter referred as "the suit property"), decree of mandatory injunction may be passed against defendant No. 1, 2 and 3 directing them to remove the chhaja/balcony (covered) raised in suit property, pass an order for demolition of unauthorised construction in the suit property and to direct defendant No. 4 to seal the suit property for violating the provisions of section 343/347 of Delhi Municipal Corporation Act, 1957 and converting the property from residential to commercial without any legal sanction.
Plaintifs' Case
2. It is pleaded that defendants No. 1 to 3 are the joint owners of the suit property which is a residential property and located in front of property of plaintiff. It is stated that defendants No. 1 to 3 raised an CS No.1912/2016 Page no. 2 of 9 unauthorized and illegal construction over the suit property and illegally converted the same into a commercial property from a residential without seeking permission from concerned authorities. It is further stated that defendants No. 1 to 3 use heavy machines for construction which creates high decibel noise during day and night due to which plaintiff being a senior citizen not able to live his life peacefully. It is further stated that defendants No. 1 to 3 also encroached upon the property of the plaintiff by projecting the chajjas/balcony towards the property of plaintiff which effecting the easementary rights of light, air and sun of the plaintiff. It is further stated that defendant No. 1 to 3 are also in the process of covering the below portion of chajja/balcony by encroaching upon the public street. It is further stated that plaintiff has brought the act of illegal conversion of land and unauthorised construction to the notice of defendant No. 1 to 3 but they threatened the plaintiff not to raise his voice and stated that they do not require permission from anyone/authority as they have good connections with police and concerned authorities. Thereafter, plaintiff made complaint to Commissioner MCD (North) and local police but of no avail. It is further stated that plaintiff lodged an on-line complaint of such illegal construction with North MCD vide grievance ID No. GRV/CNZ/2016/077318 dated 24.06.2016 and also several complaints qua redressal of the said grievance before North MCD but of no avail.
Defendants' Case
3. Written statement was filed on behalf of defendants No. 1, 2 and 3 wherein contents of plaint have been denied. It is contented that no illegal construction is being raised in the suit property and no CS No.1912/2016 Page no. 3 of 9 unauthorised construction is being done by the defendants. It is further stated that as per new Building By-laws of Delhi Government, there is no need for any sanction or site plan for the construction in the suit property upto 100 square meters and the suit property is of 80-82 square meters. It is further stated that property in question is commercial-cum-residential as property tax for the year 2016-2017 was deposited with defendant No. 4 regarding ground floor as a commercial and remaining floor as a residential in the suit property. It is further stated that plaintiff is a habitual litigator and is in a habit to blackmail the innocent people and extort money from them under the threat of filing of false and fabricated complaints.
4. Defendant No. 4/North DMC filed its written statement stating that suit is barred as no statutory notice under section 477/478 DMC Act was served upon defendant No. 4. It is further stated that the suit property was inspected on 27.07.2016 and during inspection, unauthorised construction in the shape of entire second floor, third floor and first floor in the shape of covering of projection on Mpl. Land was noticed and show cause notice bearing No. 251/B/UC/SPZ/16 dated 27.07.2016 under section 343/344 of DMC Act was issued to Sh. Imran Ali directing him to show cause within three days as to why demolition order be not passed against the unauthorised construction raised in the suit property. It is further stated that demolition order was passed on 11.08.2016 and action was fixed on 23.09.2016 but due to shortage of time, same could not be taken.
5. Replication was filed by the plaintiff to the written statement of the defendant No. 1 to 3 and defendant No. 4 wherein the contents of the plaint have been reiterated and the contentions of the defendants CS No.1912/2016 Page no. 4 of 9 in their written statement have been denied except the admissions made.
6. It is pertinent to mention here that after completion of pleadings, the defendants no.1 to 3 stopped appearing. Accordingly, defendants no. 1 to 3 were proceeded ex-parte vide order dated 15.12.2017.
Issues
7. After completion of pleadings, vide order dated 26.02.2018, the following issues were framed by my learned Predecessor for trial :
1. Whether the plaintiff is entitled for the relief of permanent injunction as prayed for in the plaint? OPP
2. Whether the plaintiff is entitled for the relief of mandatory injunction as prayed for in the plaint? OPP
3. Whether the suit of the plaintiff is barred by the provisions u/s 477/478 of DMC Act for want of statutory notice? OPD-4
4. Relief Plaintif's Evidence
8. Plaintiff has examined himself as PW1, who in his affidavit in evidence Ex. PW-1/A has stated and reiterated on oath the contents of the plaint. He has relied upon certain documents. Ex.PW1/1 is certified copy of sale deed dated 19.09.2013. Ex.PW1/2 (colly) is copy of complaints dated 24.06.2016, 27.06.2016 and 01.07.2016 to MCD alongwith original postal receipts. Ex.PW1/3 (colly) are coloured photographs. Ex.PW1/4 is plaint.
CS No.1912/2016 Page no. 5 of 9
9. Plaintiff's evidence was closed on 21.11.2019 and matter was adjourned for defendant's evidence.
Defendant's Evidence
10. Defendant's evidence was closed on 08.01.2020 as defendant No. 4 opted not to lead any evidence. Thereafter, matter was put for final arguments.
11. Final arguments have been heard advanced by the counsel for the plaintiff. I have gone through the judicial record.
12. Now I shall give my issue-wise findings.
Issue No. 1 Whether the plaintiff is entitled for the relief of permanent injunction as prayed for in the plaint? OPP Issue No. 2 Whether the plaintiff is entitled for the relief of mandatory injunction as prayed for in the plaint? OPP
13. The onus to prove these issues were upon the plaintiff. In order to prove these issues, the plaintiff has examined himself as PW1 and reiterated the averments made in the plaint, such as, raising of unauthorized construction by the defendants no.1 to 3 at the suit property which is situated in front of plaintiffs property, converting of residential property into commercial property without seeking permission from concerned authorities, encroaching upon plaintiffs property by projecting the Chajjas towards his property and obstructing light, air and sun to his building thereby depriving plaintiffs easementary rights. The PW1 has proved the complaints dated CS No.1912/2016 Page no. 6 of 9 24.06.2016, 27.06.2016 and 01.07.2016 made to North DMC (Ex.PW1/2 colly) and photographs of the illegal construction (Ex.PW1/3 colly). PW1 was cross-examined on behalf of the defendant no.4/North DMC. No cross-examination was conducted on behalf of the defendants no.1 to 3 as defendants no.1 to 3 stopped appearing after completion of pleadings. Accordingly, defendants no. 1 to 3 were proceeded ex- parte vide order dated 15.12.2017. The defendants no. 1 to 3 had an obligation under the statute to build in accordance with the rules. An illegal construction by the defendants materially affects the right to or enjoyment of plaintiff's property. Defendants no.1 to 3 owed duty and obligation under the statute not only to the Corporation but also to the plaintiff being their neighbour. It is also observed that the defendant no.4 has also carried inspection and unauthorised construction in the shape of entire second floor, third floor and first floor in the shape of covering of projection on Mpl. Land was noticed and show cause notice bearing No. 251/B/UC/SPZ/16 dated 27.07.2016 under section 343/344 of DMC Act was issued to Sh. Imran Ali directing him to show cause within three days as to why demolition order be not passed against the unauthorised construction raised in the suit property. It is further stated that demolition order was passed on 11.08.2016. So, the defendant no.4 itself has initiated demolition action against the suit property. In my opinion, the testimony of the PW1 remained unrebutted and unchallenged. There is nothing on the record to disbelieve the testimony of PW1. As such, I am of the opinion that plaintiff has been able to prove its case on record. Accordingly, the issues no.1 and 2 are decided in favour of the plaintiff and against the defendants.
Issue No. 3 Whether the suit of the plaintiff is barred by the provisions u/s 477/478 of DMC Act for want of statutory notice? OPD-4 CS No.1912/2016 Page no. 7 of 9
14. Onus qua this issue was placed on the defendant no.4. The present suit has been filed seeking relief of permanent and mandatory injunctions. At this stage, it would be relevant to go through the Section 478 of the Delhi Municipal Corporation Act, 1957 wherein it is stated that:
"Section 477 of Delhi Municipal Act, 1957- Protection of action of the Corporation, etc. - No suit or prosecution shall be entertained in any Court against the Corporation or against any municipal authority or against any municipal officer or other municipal employee or against any person acting under the order or direction of any municipal authority or any municipal officer or other municipal employee, for anything which is in good faith done or intended to be done, under this Act or any rule, regulation or bye-law made thereunder.
"478 (1) - No suit shall be instituted against Corporation or against any municipal authority or against any municipal officer or other municipal employee or against any person acting under the order or direction of municipal authority or any municipal officer or other municipal employee, in respect of any act done, or purporting to have been done, in pursuance of this Act or any rule, regulation or bye-law made thereunder until the expiration of two months after notice in writing has been left at the municipal office and, in the case of such officer, employee or person, unless notice in writing has also been delivered to him or left at his office or place of residence, and unless such notice states explicitly the cause of action, the nature of the relief sought, the amount of compensation claimed, and the name and place of residence of the intending plaintiff, and unless the plaint contains a statement that such notice has been so left or delivered.
(2) No suit, such as is described in sub-section (1), shall unless it is a suit for the recovery of immovable property or for a declaration of title thereto, be instituted after the expiry of six months from the date on which the cause of action arises.
(3) Nothing in sub-section (1) shall be deemed to apply to a suit in which the 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."
15. It is clear from the above said Section that in a suit for injunction, no statutory notice is required to be given before filing the suit. Since, this is a suit for injunction only, no statutory notice was required to be given to the North DMC before institution of the present suit. Hence, CS No.1912/2016 Page no. 8 of 9 this issue is decided in favour of the plaintiff and against the defendant no.4.
Relief
16. In view of my aforesaid findings on Issues no.1 and 2, the suit of the plaintiff is decreed with following reliefs :
i. Defendants No. 1, 2 and 3 are restrained from raising unauthorised construction in suit property bearing No. XIV/2184-85, Basti Julahan, Bagichi Raghu Nath, Sadar Bazar, Delhi and they are directed to remove the chhaja/balcony (covered) raised in suit property.
ii. Defendant no.4/North DMC is directed to take demolition action against unauthorised construction in the suit property and to seal the suit property for violating the provisions of section 343/347 of Delhi Municipal Corporation Act, 1957 and converting the property from residential to commercial without any legal sanction.
17. No order to costs. Decree sheet be prepared. File be consigned to the record room.
Announced in the Open Court on 24.02.2021 (Ajay Kumar Malik) Additional Senior Civil Judge Central District: Tis Hazari Courts: Delhi CS No.1912/2016 Page no. 9 of 9