Delhi District Court
Sh. Jageshwar Pershad vs Sh. Dinesh Kumar Sharma on 30 May, 2016
1
In the Court of Ms. Sonam Singh, Civil Judge-05, Central District, Tis
Hazari, Courts, Delhi.
CS No. 910/14
Unique ID No. 02401C0087202000
Sh. Jageshwar Pershad
S/o Sh. Mahadev
R/O L-226, Shastri Nagar,
Delhi-52 ........Plaintiff
Versus
1.Sh. Dinesh Kumar Sharma Proprietor of M/S M.B.B.H.Elcectrical Engineering L-225, Shastri Nagar, Delhi-52.
2. Municipal Corporation of Delhi Through its Commissioner, Town Hall, Chandni Chowk, Delhi-6 ........Defendants Date of Institution: 10.02.2000 Date of Final Decision: 30.05.2016 Judgment:
1. The Plaintiff has filed the present suit for permanent injunction in order to restrain Defendant no. 1 from carrying on any construction work in Suit No. 910/14 Sh. Jageshwar Pershad Vs. Dinesh Kumar Sharma 2 the 5th floor of the property, bearing no. L-225, Shastri Nagar, Delhi-
52(hereinafter referred to as 'suit property'). Further, the Plaintiff seeks the relief of mandatory injunction, in order to direct, Defendant no. 2 to demolish the unauthorized construction raised by Defendant no. 1 over the suit property.
Plaintiffs' case as per the plaint:
2. The Plaintiff in his plaint has averred that he is the owner and is also in possession of the property, bearing no. 226, Shastri Nagar, Delhi-52 and Defendant no. 1 is in occupation of the adjacent property i.e. suit property.
It is pleaded that Defendant no.1 is residing in the suit property and also manufacturing electric altinators, generators and pump sets, in the suit property, in the name of M/S M. B.B. H. Electrical Engineering, without any permission or license, from Defendant no.2.
3. Plaintiff has pleaded that Defendant no. 1 has raised a 5 storied building in the suit property, without obtaining any sanctioned site plan from Defendant no. 2. It is also pleaded that he is also running commercial activities, without obtaining any license from Defendant no.2 and in utter violation of rules and bye-laws of MCD and also the Delhi Municipal Corporation Act, 1957(in short 'DMC Act'). Further, Defendant no. 1 is using an electric generator of capacity of 46 KVA, not only during the day hours but also during the odd hours of the night, without any license from MCD and Delhi Pollution Control Committee. Moreover, the Defendant no. 1 has also installed an oven (Bhatti) which emits obnoxious and hazardous smoke. As a cumulative result, Defendant no.1 is causing noise Suit No. 910/14 Sh. Jageshwar Pershad Vs. Dinesh Kumar Sharma 3 pollution as well as public nuisance to the members of the locality.
4. It is averred that the Plaintiff sent a legal notice dated 01.11.1999 to the Defendant no. 1, in order to make him, stop the use of generator and also to pay an amount of Rs. 3,00,000/- on account of damages, caused to the building of the Plaintiff, by the use of generators by Defendant no but the Defendant gave a false and frivolous reply.
5. It is averred that on 6.02.2000 and 18.02.2000, the Defendant no. 1 engaged laborers to start the illegal construction work on the suit property but due to the intervention of the colony persons, the construction was averted. Further, it is averred that a notice under section 478 DMC Act dated 05.11.1999 was also sent to Defendant no. 2 for taking appropriate action against the Defendant no. 1, for raising unauthorized construction without having any sanctioned site plan and using the premises for commercial activities illegally without having any license from Defendant no. 2 but so far no action has been taken. Further, it is averred that a Civil Suit bearing No. 41/2000, for the relief of permanent injunction for restraining the Defendant no. 1 from carrying on any business of manufacturing generators, pump sets and altinators in suit property is pending disposal before the court of Smt. Raj Rani Mitra, Ld. Civil Judge, Delhi for 04.04.2000 titled as Sh. Jageshwar Vs. Dinesh Sharma.
Defendant no. 1's case as per his written statement:
6. In the written statement, Defendant no. 1 has taken the following preliminary objections:
Suit No. 910/14 Sh. Jageshwar Pershad Vs. Dinesh Kumar Sharma 4
a) The present suit is barred under Section 10 of the Code of Civil Procedure, as a previously instituted suit filed by the Defendant against the present Plaintiff vide suit no. 134/2000 and another suit no. 259/2000 filed by the Plaintiff are pending before this Hon'ble Court, in which the parties, subject matter of the dispute and issue involved are the same as in the present suit.
b) Further, it is averred that the present suit filed by the Plaintiff is barred under Order II Rule 2 Code of Civil Procedure, 1908 (in short 'CPC').
c) That the present suit is not maintainable on account of non-joinder of necessary party, since Smt. Meena Sharma who is also co-owner of the property bearing no. L-224, Shastri Nagar, Delhi, has not been impleaded as a party.
d) Further, it is alleged that the Plaintiff has filed the present suit in collusion and in connivance with Smt. Angoori Devi and her daughter in law, Smt. Kanta, who are residing in property bearing no. L-226, Shastri Nagar, Delhi and have filed false and frivolous suits, at the instance of the present Plaintiff. Both Smt. Angoori Devi and Smt. Kanta along with the Plaintiff are carrying on illegal commercial activities in their properties, without obtaining licenses from the concerned authorities.
e) Further, the suit of the Plaintiff is barred under Section 41 of the Specific Relief Act.
7. Further, Defendant no. 1 has averred the following facts as reply on Suit No. 910/14 Sh. Jageshwar Pershad Vs. Dinesh Kumar Sharma 5 merits:
a) That the Plaintiff is carrying on illegal and unauthorized business of chemicals and plastic materials, which can cause a health hazard. That M/s.
M. B. B. H Electrical Engineering has a license and is carrying business in a different property, which is evident from the license being placed on record.
b) That he is not carrying on any business of manufacture in the suit property, thus, the question of obtaining any license from the MCD does not arise.
c) That he has not raised any construction but only renovated his property. However, due to the collusion between the Plaintiff, MCD and Smt. Kanta of adjacent property No. L-224, Shastri Nagar, Delhi, the MCD has already taken a demolition action. He stated that he has already paid the compounding fees and applied for regularization of his property, under the Malhotra Committee yet the action was taken by MCD.
Defendant no. 2's case as per his written statement:
8. In the written statement, Defendant no. 2 has taken the following preliminary objections:
a) That the suit is barred by the provisions of Section 477/478 of the DMC Act for want of service of statutory notice, hence the same is liable to be dismissed.
Suit No. 910/14 Sh. Jageshwar Pershad Vs. Dinesh Kumar Sharma 6
b) That the suit is without any cause of action in favour of the Plaintiff, hence the same is liable to be dismissed.
c) Further, the suit is defective, as no copy of site plan and other relevant documents have been supplied.
9. Further, Defendant no. 2 has averred the following facts on reply on merits:
a) It is submitted that Plaintiff and Defendant no. 1 are using their premises for carrying on business without a valid Municipal License and thus, they were challaned u/s 417/430/461 of DMC Act.
b) It is submitted that the Defendant no. 1 has raised unauthorized construction on the ground floor and the first floor, which have been booked vide file No. 156/B/UC/CLZ/96 dated 01.11.1996. Further, unauthorized construction by Defendant no.1 on the second and third floor have been booked vide file no. 122/B/UC/CLZ/99 dated 16.07.1999.
Moreover, unauthorized construction on the fourth floor has been booked vide file no. 145/B/UC/CLZ/99 dated 01.09.1999. It is averred that in all the aforesaid files, demolition orders have been issued to the owner/builder. That the demolition action could not take place, due to shortage of time and non-availability of police force. Further, action u/s 345A and 332/465A of DMC has also been initiated against the suit property and the owner. The property has already been sealed on 10.11.1999, with the help of local police.
Suit No. 910/14 Sh. Jageshwar Pershad Vs. Dinesh Kumar Sharma 7
c) That the suit property was recently inspected and found that no unauthorized construction is being carried on in the suit property.
10. Replications were filed by the Plaintiff to the written statements filed by the Defendant no. 1 and Defendant no. 2. Plaintiff denied the averments made by the Defendants in their written statements and reiterated its stand taken in the plaint.
11. Issues were framed on 17.08.2004. The following issues were framed as given below:
1) Whether the suit of the Plaintiff is barred in view of Section 10 of the CPC? OPD
2) Whether the suit of the Plaintiff is barred in view of Section 41 of the Specific Relief Act? OPD
3) Whether the suit of the Plaintiff is barred under Section 477/478 of DMC Act? OPD
4) Whether the Plaintiff is entitled for a decree of permanent injunction and mandatory injunction as prayed for? OPP
5) Relief.
Evidence on behalf of Plaintiff:
12. PW-1 Sh. Jageshwar Pershad, the Plaintiff himself stepped into the witness box and was examined-in-chief by way of affidavit Ex.PW1/A and relied on the following documents:
Suit No. 910/14 Sh. Jageshwar Pershad Vs. Dinesh Kumar Sharma 8 Sr. No Exhibit/Mark Nature of Documents
1. Mark A Copy of notice dated 01.11.1999
2. Mark B Copy of notice under Section 478 of DMC Act dated 05.11.1999.
3. Mark C Complaint PW-1, Sh. Jageshwar Pershad, was duly cross examined by Defence Counsel.
13. Sh. Adya Prashad appeared and stepped into witness box as PW-2 and filed his affidavit in lieu of evidence Ex. PW-2/A and was duly cross examined by the Ld. Counsel for the Defendant.
14. Smt. Usha had appeared and stepped into witness box as PW-1, though she should have been numbered as PW-3. She was dropped as a witness on 15.05.2013.
15. Sh. Vijay Singh, Office In-charge, Factory License Department, North MCD, Delhi, stepped into the witness box as PW-2, though, he should have been numbered as PW-4. He deposed that the summoned record was not traceable. An opportunity was given to Ld. Counsel for the Defendants to cross examine but they did not cross examine the witness.
16. Smt. Krishna, Assistant Ahlmad, in the court of Ms. Sujata Kohli, Ld. ADJ, THC, Delhi, stepped into the witness box as PW-4, though she should have been numbered as PW-5 and relied upon the following documents:
Suit No. 910/14 Sh. Jageshwar Pershad Vs. Dinesh Kumar Sharma 9 Sr. No. Exhibits Nature of Documents
1. Ex. PW-4/1 (OSR) Copy of legal notice dated 01.11.1999
2. Ex. PW-4/2 (OSR) Copy of legal notice dated 05.11.1999
3. Ex. PW-4/3 Copy of the complaint to DPCC
4. Ex. PW-4/4 (colly) Cross examination dated 23.11.2009 in civil suit no. 1411/08
5. Ex. PW-4/5 Certified copy of the order dated 18.02.2005 in suit no. 41/2000, which is on the record of the civil suit no.1411/08
The witness was duly cross examined by Ld. Counsel for the Defendant.
17. PE was closed on 02.11.2015. An opportunity for Defendants to lead DE was given but no DE was led and the right of Defendants to lead DE stood closed on 02.03.2016.
18. I have heard Ld. Counsels of both the parties and perused the record carefully.
19. My findings on the aforesaid issues are as under:
20. Issue No. 1:
Whether the suit of the Plaintiff is barred in view of Section 10 of the CPC? OPD The onus to prove the said issue was on the Defendants. The present issue was framed, on the basis of the preliminary objection taken by Defendant no. 1 in his written statement, that there were two previously Suit No. 910/14 Sh. Jageshwar Pershad Vs. Dinesh Kumar Sharma 10 instituted suits, bearing suit no. 134/2000 and 259/2000, which were pending before this court, between the same parties and involving same issues and same subject matter of the disputes. As per Section 10 CPC, no court can proceed with the trial of any suit in which the matter in issue is directly and substantially in issue in a previously instituted suit between the same party. However, this issue has become infructuous, as the court proceeded with this matter. Further, the Defendant did not place on record the pleadings and the issues framed in the previously instituted suits to show that Section 10 CPC was attracted.
Hence, the issue is accordingly decided in favour of the Plaintiff and against the Defendants.
21. Issue No. 2:
Whether the suit of the Plaintiff is barred in view of Section 41 of the Specific Relief Act? OPD The onus to prove the issue was on the Defendants. In the written statement filed by Defendant no. 1, Defendant no. 1 had averred that the suit is barred under Section 41 of the Specific Relief Act,1963 (in short 'SRA'). However, except a bald averment made by the Defendant no. 1, nothing was brought on record to show that the suit was barred under Section 41 of SRA and as.
Thus, this issue is also decided in favour of the Plaintiff and against the Defendants.
Suit No. 910/14 Sh. Jageshwar Pershad Vs. Dinesh Kumar Sharma 11 22. Issue No. 3 Whether the suit of the Plaintiff is barred under Section 477/478 of DMC Act? OPD The onus to prove the issue was also on the Defendants. Defendant no. 2 in their para no. 1 of the preliminary objection in their written statement, alleged that the present suit is not maintainable, as the Plaintiff has not served the statutory notice under Section 477/478 of DMC Act, prior to the filing of the present suit. Section 477 of DMC Act deals with protection to the corporation, municipal authority and municipal officials/ employees against acts done in good faith. Defendant no. 2 has not raised any plea of any act being done in good faith and thus, it cannot be said that the suit is barred under Section 477 of DMC Act.
Further, with respect to Section 478 of DMC Act, the section provides for two months prior notice to be given, before a suit is instituted, against the corporation or any official or employee of the corporation. Sub- Section 3 of Section 478 excludes the requirements of statutory notice, in a suit where the relief for injunction is claimed, wherein the object would be defeated by giving of the notice. The same was reiterated in the judgment pronounced by the Hon'ble Delhi High Court in Har Kishan Lal and Ors Vs. Jain Textiles Traders, 53 (1994) DLT 80. It is observed by the court that the relief of injunction sought by the Plaintiff was regarding unauthorized construction being raised by Defendant no. 1 and also the use of generators by Defendant no. 1, which prima facie seems to be urgent and the relief could have become infructuous, in case the statutory notice was served upon Defendant no. 2. Thus, the Plaintiff is entitled to the benefit of Section 478 (3) of DMC Act and no prior notice was required to be served.
Suit No. 910/14 Sh. Jageshwar Pershad Vs. Dinesh Kumar Sharma 12 Hence, this issue is decided in favour of the Plaintiff and against the Defendants.23. Issue No. 4
Whether the Plaintiff is entitled for a decree of permanent injunction and mandatory injunction as prayed for? OPP The onus to prove the issue was on the Plaintiff. The Plaintiff has sought two reliefs: Firstly, an injunction in order to restrain Defendant no. 1 from carrying on any construction work in the suit premises, specifically, on the fifth floor on the suit property and secondly, an injunction to direct Defendant no. 2 to demolish the unauthorized construction raised by Defendant no. 1 in the suit property.
24. The relief of injunction, in order to restrain the Defendant no.1 from carrying out construction work in the 5th floor of the suit property is taken up first. In order to prove that Defendant no. 1 had carried out unauthorized construction at the suit property, up to the fifth floor in the suit property, the plaintiff himself stepped inside the witness box, as PW1. He deposed in tandem with the averments of the plaint and stated that the Defendant no. 1 has raised unauthorized construction. He deposed that Defendant no.1 has raised the unauthorized construction, up to five floors in the suit property, without obtaining any sanction plan and in violation of rules and bye laws of Defendant no.2 and DMC Act. Further, he proved that Defendant no. 2 was asked to stop the unauthorized construction by way of a letter, dated 05.11.1999, written by the Plaintiff, which is , Mark B. It was also proved Suit No. 910/14 Sh. Jageshwar Pershad Vs. Dinesh Kumar Sharma 13 that the Plaintiff wrote a letter, i.e. Mark C, to the Head of Department of Pollution regarding the noise pollution being caused. These letters are on record and they prove that the Plaintiff had brought into the knowledge of the concerned authorities that Defendant no. 1 was raising unauthorized construction.
25. It is pertinent to observe that no DE was led on part of the Defendant.
26. The Hon'ble Calcutta High court in Pranballav Saha & Anr. vs. Sm.
Tulsibala Dassi & Anr ., AIR 1958 Cal. 713 was held as under:
"The very fact that the defendant neither came to the box herself nor called any witness to contradict evidence given on oath against her shows that these facts cannot be denied. What was prima facie against her became conclusive proof by her failure to deny."
27. Further, in Pirgonda v. Vishwanath, AIR 1956 Born. 251, it was held:
"Normally a party to the suit is expected to step into the witness box in support of his own case and if a party does not appear in the witness box, it would be open to the trial Court to draw an inference against him."
In the present suit, neither Defendant no.1 nor anyone on his behalf entered the witness box and thus, an adverse inference is drawn against him.
Hence, PW1 has successfully proved the factum of unauthorized construction in the suit property upto five floors, by the positive averments Suit No. 910/14 Sh. Jageshwar Pershad Vs. Dinesh Kumar Sharma 14 made by him as well as documents proved on record coupled with the fact that neither Defendant no.1 nor anyone on his behalf entered the witness box.
28. As far as the second relief of mandatory injunction is concerned, Ld. Counsel for Defendant no.2 submitted in court that suit property was constructed before June 2014 and is protected under the National Capital Territory of Delhi Laws (Special Provision) Second (Amendment) Act 2014 till December 2017.
29. As per the provisions of aforesaid Act, the MCD cannot take any action for demolition of unauthorized construction, which had come up before 01.01.2006, despite the orders passed by any court. The same was reiterated in a judgment passed by the Hon'ble High Court of Delhi in Khushi Seva Sanstha (Regd) vs The State & Ors, W.P.(C) 2000/2012, on 16 January, 2013. The aforesaid protection has been extended till 31.12.2017 by the National Capital Territory of Delhi Laws (Special Provision) Second (Amendment) Act 2014.
30. It is clear that the protective umbrella for unauthorized construction under the aforesaid Act is only a stop gap arrangement till 31.12.2017 and cannot be said to be absolute protection. Hence, the protection against the demolition against the unauthorized construction raised on the suit property shall be available to the Defendant no.1 till the Act is in enforce. Thus, Defendant no.2 is directed to demolish the unauthorized construction, once the protection ceases to exist.
Hence, this issue is decided in favour of the Plaintiff and against the Suit No. 910/14 Sh. Jageshwar Pershad Vs. Dinesh Kumar Sharma 15 Defendants.
Relief :-
In view of aforesaid reasons and discussion, the suit of the plaintiff is disposed off.
Defendant no.1 is restrained from carrying out any construction work in the 5th floor of the suit property. Further, The Defendant no. 2 is directed to demolish the unauthorized construction in the suit property, once the protection under Section 3 of the National Capital Territory of Delhi Laws (Special Provision) (Amendment) Act, 2014 or protection under any other law ceases to operate or is withdrawn by the Government of NCT of Delhi. No order as to cost.
Decree sheet be prepared accordingly.
File be consigned to record room.
Pronounced in the open Court on 30.05.2016.
(Sonam Singh) Civil Judge-05, Central District Tis Hazari Courts,Delhi Present judgment is consisted of 15 pages and each page is signed by me.
Suit No. 910/14 Sh. Jageshwar Pershad Vs. Dinesh Kumar Sharma 16 CS. No. 910/14 30.05.2016 Present: None.
Vide my separate judgment of even date, suit of the plaintiff is disposed off. Defendant no.1 is restrained from carrying out any construction work in the 5th floor of the suit property. Further, The Defendant no. 2 is directed to demolish the unauthorized construction in the suit property, once the protection under Section 3 of the National Capital Territory of Delhi Laws (Special Provision) (Amendment) Act, 2014 or protection under any other law ceases to operate or is withdrawn by the Government of NCT of Delhi. No order as to cost.
Decree sheet be prepared accordingly.
File be consigned to record room.
( Sonam Singh ) Civil Judge-05, Central District Tis Hazari Courts, Delhi 30.05.2016 Suit No. 910/14 Sh. Jageshwar Pershad Vs. Dinesh Kumar Sharma