Delhi District Court
Sh.Satender Dutt vs Delhi Development Authority on 22 April, 2013
1
IN THE COURT OF SH. SHAILENDER MALIK
LD.SCJ/RC,NW/DELHI
Suit No.65/13/10
1. Sh.Satender Dutt
H.No.A27/9 Gali No.5,
Shastri Marg, Maujpur, Delhi.
2. Sh. Girish Chander
S/o Late Sh. Kashi Ram
H.No.C1/61, Street No.19,
Khajuri Khas Colony, Delhi.
3. Sh. D.R. Panchal
S/o Sh. P.C. Panchal
R/o C93, NDDE Part II, N Delhi. .......... Plaintiffs
Versus
1. Delhi Development Authority
Through its chairman INA Vikas
Sadan N. Delhi
2. Deputy Director (LM) N2 PIO
Delhi Development Authority
INA Vikas Sadan. N. Delhi.
3. Commissioner Municipal Corporation of Delhi.
Town Hall Chandi Chowk, Delhi.
4. Zonal Engineer Building Department
MCD, Narela, Zone, N. Delhi
5. Shri Sanjay S/o Sh. Jagdish
Village Sannot Delhi. ............ Defendants
Date of institution .......... 19.11.2010
Date of reserving order ......... 22.04.2013
Date of announcing order .......... 22.04.2013
2
ORDER
1. By this order I will dispose off application moved on behalf of defendant no.5 under Order 7 rule 11 rw section 151 CPC. It is stated in the application that plaintiff had filed the present suit for permanent and mandatory injunction, plaint in the present suit is liable to be rejected as suit is devoid of any cause of action qua defendant no.5, moreover, is not maintainable under law. It is stated that plaintiffs are claiming themselves to be well wishers of public and have filed the present suit on behalf of public at large, whereas plaintiffs are having no cause of action as they have not interest at all in the property nor even plaintiffs are local residents of the area where the property is situated. It is stated that plaintiffs are residing about 60 lm away from the suit property and present suit has been filed only with the intention to blackmail defendant no.5. It is further stated in the application that present suit has been filed with the allegations that defendant no.5 had illegally raised construction of "dharmakata" (placed for weight machine) and shop at a land which has already been acquired by defendant no.1. Plaintiff has also sought relief of demolishing of alleged illegal construction. It is stated that defendant no.5 being member of "Mahavir Welfare Association" (Regd) which filed WP (C) no.2362/10 before Hon'ble High Court titled as "Mahavir Welfare Association vs DDA" and Hon;ble High Court vide order dated 12.04.2010 has already given directions to the DDA that it shall not be entitled to demolish any structure where construction has been carried out prior to February 2007 in view of "Delhi Laws (Special Provisions) Act 2010. It is stated that in view of such directions of Hon'ble High Court, DDA is already in the process in identifying structures in the said area which are built prior to February 2007. It is stated the construction of the defendant no.5 i.e Dharmakata is covered under the "Delhi Laws (Special Provisions) Act 2010" as such the present suit is not maintainable.
2. It is stated that even otherwise, area where the suit property is situated is liable to be regularized as provisional certificate for regularization has already 3 bee issued by Govt. of Delhi as per clause 4 of "Regulations for regularization of unauthorized construction in Delhi" as notified vide notification dated 24.03.2008 and amended notification dated 16.06.2008. It is stated that plaintiffs have no locus standi to file the present suit.
3. Precise facts necessary for the disposal of the application are that plaintiffs Satender Dutt, Girish Chander and D.R. Panchal have filed the present suit stating in para 2 of the plaint that they are filling the present suit as per the provisions of section 91 of CPC. Defendant no.1 is DDA, defendant no.3 is MCD and defendant no.5 is one Sanjay S/o Jagdish. It is stated in the plaint that upon inquiries made from concerned authorities of defendant no.1 to 4, plaintiffs stated to have come to know that defendant no.5 and various other persons in collusion with defendant no.1 to 4 have raised unauthorized construction on a acquired land of Khasra No.50/2 of village Bhor Garh, Delhi without approval of any sanctioned plan. It is alleged that defendant no.5 has installed weighing bridge (dharmakata) and has also raised unauthorized construction of certain shops in the portion of land comprised in Khasra no.50/2, of said village which has already been acquired and construction is without any sanctioned. It is stated that report of the Patwari would indicate that defendant no.5 had encroached on the said land and has raised unauthorized construction and land is being used for commercial purpose contrary to the provision of section 4, 6,11 & 16 of LAC Act. Hence while stating various other facts present suit has been filed with the prayer that defendant no.5 may be restrained from raising unauthorized construction on the land comprised in Khasra no.50/2 of Village Bhore Garh, Narela, Delhi and it is also prayed that by mandatory injunction defendants be given directions to restore the land in question to the authorities and plaintiffs have also sought declaration to declare that construction over the land in question is unauthorized and land in question is acquired. With consequential relief of directions to defendant no.1 to 4 for demolishing the unauthorized construction.
44. WS has been filed on behalf of DDA taking the objection that DDA is neither nor necessary party, plaintiffs are not having any locus standi to file the present suit and have also concealed material facts. It is stated that plaintiffs have concealed that DDA has demolished the unauthorized construction from time to time and lastly on 12.04.2010. While denying the case of the plaintiff, it is stated that concerned officials of DDA have been taking necessary action against unauthorized construction on acquired land of khasra no.50/2 of village Bhor Garh, Narela, Delhi. It is stated that Hon'ble High Court of Delhi have given the directions to DDA in writ petition no.2326/10 that prior to any demolition DDA must ascertain that construction to be demolished is of period post 07.2007. It is stated that after 12.04.2010, no demolition was done because of pendency of above said writ petition before Hon'ble High Court.
5. MCD (defendant no.3 &4) have also filed WS taking the objections that plaint is liable to be rejected. While denying the case of the plaintiffs, it is pleaded that suit property i.e Khasra no.50/2 was inspected by the field staff and it was reported that building activity in the area of village Bhor Garh is under the control of defendant no.1 & 2 DDA and MCD has no jurisdiction to take any action against alleged unauthorized construction in the said area.
6. Defendant no.5 has also filed WS taking the more or less similar objections.
7. I have heard Ld. Counsel for the parties and have gone through the record carefully. First of all it is necessary to reiterate the well established legal proposition that for adjudicating whether the plaint is liable to be rejected under any of the clause of Order 7 rule 11 CPC, court has to see only the averments of the plaint and the documents annexed with it. Now, taking the plaint in to consideration, three plaintiffs herein have filed the present suit stating in para 2 of the plaint that they are filling the present suit as per section 91 of CPC.
58. Section 91 of the Code of Civil Procedure provides that in the case of a public nuisance or other wrongful act affecting or likely to affect, the public, a suit for declaration and injunction or for such other relief as may be appropriate in the circumstances of the case may be instituted by the Advocate General or with the leave of the court by two or more persons even though no special damages has been caused to such person by reason of such public nuisance or other wrongful act. Section 91 does not limit or otherwise affect any right of suit which may exist independency. On account of public nuisance he can file a suit without taking resort to section 91, the CPC.
9. First of all admittedly, present suit has not been filed by Advocate General and has been filed by three private parties being plaintiffs herein. But perusal of the record would clearly indicate that no "leave" had been obtained as per section 91 clause (b) to file the present suit. Taking of permission to file a suit alleged public nuisance or wrongful act affecting the public is mandatory. This has not been done in the present case. Moreover, seeing the memo of parties, it is very much clear that plaintiffs are not residents of village Bhore Garh, Narela, Delhi. No doubt suit can be filed by those who have not been caused any special damage because of such public nuisance or other wrongful act. But provisions of law can not be made a tool for blackmailing or unnecessarily filling litigations by invoking the provision of section 91 in respect of property which is in no way concerned to plaintiffs. No doubt every person in a free and democratic country has a right to raise issue regarding any illegality including regarding unauthorized construction. But this can be done only in accordance with the recognized principles of law. In the present case, provision of section 91 has not been followed. Moreover, plaintiffs themselves have not stated in the plaint as to in what manner they have any concerned regarding property in question.
10. Matter can be appreciated from another angle, plaintiffs have alleged regarding raising of unauthorized construction by defendant no.5 on a land 6 being portion of Khasra no. 50/2 of village Bhore Garh, Narela, Delhi regarding the same land writ petition is already pending being writ petition no.2326/10 titled as Mahavir Welfare Association vs DDA & Ors. This court as a duty to take judicial notice of the above said fact that pertaining to the suit property itself proceedings are pending before Hon'ble High Court and already directions have been given in order dated 12.4.2010 in para 6 of the order following directions were given.
"it is made clear that DDA shall not be entitled to demolish any structure where construction has been carried out prior to February 2007, in view of Delhi Laws (Special Provision Act 2010)".
11. In view of such directions already given by Hon'ble High Court, I find the present suit seeking similar relief by way of mandatory injunction against DDA is also otherwise not maintainable beside being not maintainable u/s 91 CPC for want of prior leave of the court to file the present suit. Thus, for the reasons stated above that plaint in the present form is liable to be rejected in view of clause A & D of rule 11 of Order 7 CPC.
File be consigned to record room.
Announced in opened court on th 22 April, 2013 (SHAILENDER MALIK) SCJ/RC,NW/DELHI/22.04.13