Delhi District Court
Sh. N.C. Jain vs Sh. P.N. Luthra on 2 July, 2015
1
IN THE COURT OF SH. PRADEEP CHADDAH
DISTRICT & SESSIONS JUDGE (NORTH)
ROHINI COURTS, DELHI.
RCA No. 09/2014
Sh. N.C. Jain
S/o Sh. R.S. Jain
R/o 25-A, Dhruva Apptts.,
Sector-13, Rohini,
Delhi-110 085. ................Appellant
Versus
1. Sh. P.N. Luthra
S/o Sh. Ram Lal Luthra
R/o 14-C, Dhruva Apptts.,
Sector-13, Rohini,
Delhi-110 085.
2. Sh. S.B. Singhal
S/o Sh. S.R. Singhal
R/o 16-C, Dhruva Apptts.,
Sector-13, Rohini,
Delhi-110 085.
3. The Delhi Pradesh Co-op. Group Housing Society(P) Ltd.
Dhruva Apptts.,
Sector-13, Rohini,
Delhi-110 085.
Also at:- Through its Administrator
Sh. R.K. Gupta,
R/o H.No. 15, Gali No. 1,
Ram Nagar, Pahar Ganj, Qutab Road,
New Delhi-110 055.
4. North Delhi Municipal Corporation
(earlier known as Municipal Corporation of Delhi)
N.C. Jain Vs. P.N. Luthra pg. no. 1 of 13
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Through its Commissioner,
Civic Centre, Minto Road,
New Delhi-110 002.
5. The Station House Officer
P.S. K.N. Katju Marg,
(earlier concerned Area P.S. Rohini),
Sector-15, Rohini, Delhi-110 085. .........Respondents
Date of Institution : 01.02.2014
Judgment Reserved on : 01.06.2015
Date of Judgment : 02.07.2015
JUDGMENT :-
1. The present appeal has been filed by Sh. N.C. Jain against five respondents. He has assailed order passed by Ld. Senior Civil Judge on 10.12.13. Case of the plaintiff/appellant in brief is that he as well as respondent no. 1 & 2 are members and allottees of respondent no. 3 Society namely The Delhi Pradesh Co-operative Group Housing Society (P) Ltd., Dhruva Apptts.,Sector-13, Rohini, Delhi. The society is governed by provisions of Delhi Co-operative Societies Act and entrusted with responsibility of taking care and protecting land and building of the society and also interest of the members.
2. Respondent No. 1 and 2 alongwith other members of the society encroached upon open platform above the under ground water reservoir and the fire fighting tank built in the premises. They raised illegal N.C. Jain Vs. P.N. Luthra pg. no. 2 of 13 3 construction and made a temple which is hardly at a distance of 15 feet from the flat of the appellant. Appellant lodged complaint with the police but it had no effect. Appellant in the plaint claimed that respondent no. 1 and 2 were not owners of the land on which they had raised construction. They infringed upon his right of privacy and construction resulted in a lot of noise and sound pollution and was threat to his security and that of other members of the society. They also encroached upon green areas and resulted in blockage of bye lanes of the society. Despite repeated request, MCD did not take any action. He filed a suit seeking permanent injunction restraining defendant/respondent no. 1 and 2 from raising construction. He also sought decree of mandatory injunction against defendant/respondent no. 4 & 5 seeking directions to them to demolish illegal and unauthorized construction which have been raised.
3. In the Trial Court after conclusion of evidence, he moved an application U/o 6 Rule 17 CPC seeking to amend the prayer clause. He wanted defendant/respondents to be restrained from disturbing peace and tranquility by causing noise pollution and nuisance to him by use of loudspeaker, musical instruments etc. Ld. Civil Judge had disallowed the application as he found lack of due diligence on the part of appellant. This order was passed on 05.10.13.
4. Ld. Civil Judge decided all the issues in favour of plaintiff/appellant and held that he was entitled to decree of permanent and mandatory injunction but also held that decree of mandatory injunction was to be executed subject to provisions of NCT of Delhi Laws (Special Provisions) N.C. Jain Vs. P.N. Luthra pg. no. 3 of 13 4 Second Act, 2011.
5. In the grounds of appeal it has been claimed by the appellant that judgment was erroneous. Ld. Judge had not discussed his submissions regarding non applicability of the Act. He had also failed to note that onus of proving meeting of mandatory pre condition was on the respondents which they did not discharge. Ld. Trial Court had also ignored his submissions and arguments while disallowing his application U/o 6 Rule 17 CPC. Ld. Judge should also have awarded cost to him.
6. I have heard Ld. Counsel for the parties very extensively. I have also gone through the file.
7. Ld. counsel for the appellant submitted that he had three main grievances against the impugned judgment. Though his suit had been decreed but Ld. Trial Judge had withheld part of the relief in view of the National Capital Territory of Delhi Laws ( Special Provisions) 2nd Act 2011. The said act had restricted the rights of local authorities like MCD from taking action against unauthorized and illegal constructions in the city of Delhi. Ld. Trial Court Judge had directed the authorities to take action against the illegal construction subject to provisions of above Act. According to MCD their hands were tied because of the said act and they could not take any action against it.
8. In the case in hand the illegal construction had been raised on an underground water storage tank. DW-2 S.B. Singhal in his cross N.C. Jain Vs. P.N. Luthra pg. no. 4 of 13 5 examination had admitted that construction was unauthorized and against sanction plan. He further admitted that MCD had not approved any revised building plan of the society after construction of the temple. DW-1 Mr. P.N. Luthra in his cross examination had admitted that original sanction building plan of the society contained no provision for construction of any temple. He had also admitted that no building plan was got sanctioned from MCD prior to building of the temple. Trial Court had also examined Mr. Jagpal Singh Executive Engineer MCD. He admitted that demolition order had been passed but no demolition action had been taken by them. He further admitted that the said structure is liable to be demolished but cannot be demolished in view of National Capital Territory of Law Act. Ld. Civil Judge in his impugned judgment had also observed that unauthorized construction of temple had been done by the defendants and it had been booked by MCD and demolition order had also been passed.
9. If we go through National Capital Territory of Delhi Laws Act we find that as per Section 3 of the Act, enforcement was to be kept in abeyance. As per Section 3 (3) no punitive action was to be taken against encroachment for unauthorized constructions provided it was constructed prior to the dates specified for different areas as enumerated. Further it was to conform to safety standards as in force or other safety requirements as notified by the Central Government and it complies with directions with respect to safety, if any, issued by Central Government.
10. Section 2(j) of the Act defines unauthorized development as development carried out in contravention of sanction plan or without N.C. Jain Vs. P.N. Luthra pg. no. 5 of 13 6 obtaining sanction of plans or in contravention of the land use as the case may be. MCD building by law K10.2.2 is regarding static water storage tank. According to it the tank should have required capacity and it should be accessible to fire engines. There should be suitable number of manholes and the covering slab should be able to withstand vehicular load of 18 tons. According to Ld. counsel for the appellant the temple which had been constructed on the storage tank violated the safety norms and thus did not enjoy the protection offered by the MCD Act. On the other hand Ld. counsel for MCD submitted that there was no permanent structure over the tank. I have gone through the photographs which had been placed on record by the parties. They also filed fresh photographs showing latest position.
11. The photographs clearly go to show that some construction indeed had been raised on the top of the water tank. Flower pots have also been put on it. A marble platform of about three ft. in height has also been raised on which idols of deities have been kept. A brick wall has also been constructed on it. It would certainly have considerable weight.
12. The temple as admitted by the defendant/respondents is being used regularly for various religious functions and other activities. Lot of devotees and other people frequent it regularly whenever there is kriya or death ceremony or kirtans and jagrans are organized. We must keep in mind the body weight of devotees also who would be standing on top of the water tank.
N.C. Jain Vs. P.N. Luthra pg. no. 6 of 13 7
13. The National Capital Territory of Delhi Laws (special provisions) Second Act, 2011 prevents local authorities from taking punitive actions in case encroachment or construction conforms to safety standards. According to MCD Building by law K-10.2.2 the water tank should be accessible to fire engines of local fire service and should be able to withstand vehicular weight of 18 tons. As I have already observed earlier; considerable weight has already been put on the top of the tank by way of brick and mortar construction, platform for deities and weight of devotees frequenting the place. On face of it, it does not conform to safety standards in force and so the protection accorded by National Capital Territory of Delhi laws (Special Provisions) Second Act, 2011 is not attracted to the construction in dispute.
14. Ld. counsel for appellant further went through para 15 of the original plaint filed before Ld. Trial Court. In the said paragraphs he referred to various acts of nuisance which affect his day to day life because of temple. Section 2(33) of MCD Act defines nuisance as under:
"nuisance" includes any act, omission, place, animal or thing which causes or is likely to cause injury, danger, annoyance or offence to the sense of sight, smell or hearing or disturbance to rest or sleep, or which is or may be dangerous to life or injurious to health or property;
15. According to Ld. Counsel appellant was facing problem right from early in the morning till late evenings day after day. Whole day there were activities going on in the temple. It started early in the morning with N.C. Jain Vs. P.N. Luthra pg. no. 7 of 13 8 loudspeakers blaring out Artis. All the festivals were being celebrated in the temple. Jagarans were being held regularly. Even kriya ceremonies and uthalas were held over there which also led to security concern as outsiders used to frequent the temple. Their entry could not be stopped. Even defendants witnesses admitted these facts in their testimony. LC had been appointed who submitted his report. He too talked about nuisance being created and very meagre distance between temple and house of appellant. No objections were ever filed to the report. Ld. counsel had moved an application U/o 6 Rule 17 CPC seeking to incorporate his plea regarding nuisance but Ld. Civil Judge disallowed the application on 05.10.13. Ld. counsel for the appellant submitted that this Court should grant the relief which he had sought by way of amendment and that was part of his prayer in this Court. He stated that this appellate Court was competent to do so.
16. In the present appeal appellant also sought relief regarding application U/o 6 Rule 17 CPC which he had moved before the Trial Court and the same had been declined.
17. As per Section 105 of the CPC no appeal shall lie from an order made by Court in the exercise of its original or appellate jurisdiction but when appeal is filed against a decree, then any error defect or irregularity in any order which has affected decision of the case can be agitated. Alongwith the appeal that order can be challenged.
18. Order 43 Rule 1 CPC gives details of appealable orders. Appeal N.C. Jain Vs. P.N. Luthra pg. no. 8 of 13 9 against order passed under 6 Rule 17 CPC does not figure in it. Order 43 Rule 1A does not debar appellant from raising issue of his dismissal of his application U/o 6 Rule 17 CPC alongwith the appeal. Three Judge Bench of Hon'ble Supreme Court in case titled as "Dewaji Vs. Ganpat Lal : AIR 1969 SC 560 quoted from its previous judgment in case titled as Satya Dhyan Goshal Vs. Deo Rajin Devi as follows:
"An interlocutory order which does not terminate the proceeding and which has not been appealed from either because no appeal lay or even though an appeal lay, an appeal was not taken could be challenged in an appeal from the final decree or order"
19. In case titled as Nanduri Yogananda Lakshminarsimhachari & Ors. Vs. Sri Agathe swaraswamivaru: AIR 1960 Supreme Court 622 it was held that High Court was right in allowing at the appellate stage the amendment by addition of a new prayer in the prayer clause of the plaint, when all the allegations had been made in the plaint, requisite pleas had been raised by the appellant, an issue was framed on the question, the parties were fully cognizant of the points in controversy and they had led necessary evidence."
20. Hon'ble Supreme Court in Jai Jai Ram Manohar Lal Vs. National Building Material Supply : AIR 1969 Supreme Court 1267 had held " the court always gives leave to amend the pleadings of a party, unless it is satisfied that party applying was acting malafide or that by his blunder, he had caused injury to his opponent which may not be compensated by an order of cost. However, negligent or careless may have been the first N.C. Jain Vs. P.N. Luthra pg. no. 9 of 13 10 omission, and however, late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side.
21. So certainly appellant was well within in his rights to move the application before the Ld. Trial Court U/o 6 Rule 17 CPC to seek further relief regarding nuisance.
22. Ld. Counsel for appellant submitted that Court could still allow his application U/o 6 Rule 17 CPC and stop the nuisance. He submitted further that he had moved an application before Ld. Trial Court which did not allow the same though he had pleaded that he would not be leading any further evidence. He claimed that it was his fault that he had not moved the application earlier. He relied upon judgment delivered by Hon'ble Punjab and Haryana High Court in case titled as Ramanand Vs. Sidhu : 2010 (2) RCR Civil. Hon'ble High Court had held therein that litigant cannot be punished for errors of his counsel who despite receiving all relevant documents commits bonafide error.
23. Ld. Counsel for respondent relied upon case titled as Kailash Sharma Vs. Jagdish Lal Sharma: 2010 AD Delhi 622, Shriram Bhartiya Kalakendra Vs. Shubha Mudgal : 175 (2010) DLT 187, K.K. Sarin Vs. Neeta Sharma : 194 (2012) DLT 47, J.K. Kashyap Vs. Rajiv Gupta : 196 (2013) DLT 263, Ajendra Prasadji N. Pandey Vs. Swami Keshavprakeshdasji N. & Ors : (2006) 12 Supreme Court Cases 1, J. Samuel & Ors. Vs. Gattu Mahesh & Ors : 1(2012) SLT 356.
N.C. Jain Vs. P.N. Luthra pg. no. 10 of 13 11
24. All these judgments are to the effect that amendment application should not be allowed if the trial has started or the litigant was not due diligent. Here Ld. Counsel for appellant took the blame on himself and submitted that fault was not of the appellant but his.
25. Here plaintiff/appellant in para 15 of the plaint had claimed that construction of the temple infringed upon his right of privacy. He also claimed that there would be huge noise and sound pollution resulting from using of loudspeakers, musical instruments, kirtans and other activities. Respondents/defendants admitted in their cross examination that activities were going on in the temple. They admitted conducting of prayers and celebration of other festivals. Certainly appellant who stays around 15 to 20 feet away from the temple has to face brunt of loudspeakers, musical instruments, kirtans etc. day in and day out, everyday of the month. During festivals his agony would be multiplied. He has a right to live peacefully in his house and have proper undisturbed sleep and rest. Ld. Civil Judge ought to have allowed the application U/o 6 Rule 17 CPC since the application was not moved belatedly. DW-1 in his cross examination on 09.03.11 and DW-2 in his cross examination on 16.8.11 had admitted these activities created nuisance for the appellant. It was only thereafter appellant had moved the application which was disallowed. Ld. Trial Court did not exercise the discretion judiciously while disallowing the application U/o 6 Rule 17 CPC.
26. The last limb of submission of Ld. counsel was that Ld. Trial Court had ordered the parties to bear their own cost. Ld. counsel submitted that N.C. Jain Vs. P.N. Luthra pg. no. 11 of 13 12 all the issues were decided in his favour. Ld. Trial Judge had also observed that manipulations had been done by the defendants/respondents. According to him they should have been penalised with cost but the Ld. Trial Judge directed them to bear their own cost. Ld. counsel relied upon Salem Advocate Bar Association T.N. Vs. Union of India: (2005) 6 Supreme Court Cases 344.
27. If we take a look at page no. 32 and 40 of the judgment of the Ld. Trial court, we find that Ld. Judge had expressed his apprehension that may be some manipulations had been done by the respondent. This has been the conduct of the defendant/respondents. In the aforesaid case Hon'ble Supreme Court had held that Court must impose reasonable cost which have been incurred by successful party. The case has dragged on for almost 17 years. Appellant would have been made to run around numerous times to pursue the matter. He would have engaged good advocates and would have paid them well. He would have spent quite substantial amount on the present litigation. It would be appropriate that respondents No. 1, 2 and 3 are burdened with cost Rs. 50,000/-. Appellant who is an aged person has a right to live an undisturbed peaceful life. He has a right to have proper sleep and rest.
28. I allow the appeal and direct respondents No. 1 and 2 to immediately cease usage of loudspeaker and musical instruments in the temple. I, therefore, direct the respondents to immediately stop using any kind of musical instruments or loudspeaker in the temple. Till the time deities are shifted with due respect, the prayers shall be conducted without use of any N.C. Jain Vs. P.N. Luthra pg. no. 12 of 13 13 loudspeaker or musical instrument. Respondent shall ensure that least amount of disturbance is caused to the appellant. Within two months of today respondents should choose another site within or outside the society. After observing all religious rituals and while according due respect the statues of deities should be shifted to that chosen spot and the construction raised on the water tank should be removed. MCD is directed to implement the order passed and SHO/respondent no. 5 shall ensure compliance of order in letter and spirit. Respondent No. 1, 2 and 3 shall be paying cost Rs. 50,000/- to appellant.
Announced in the open court on the 02nd of July, 2015 (Pradeep Chaddah) District & Sessions Judge (North) Rohini Court, Delhi N.C. Jain Vs. P.N. Luthra pg. no. 13 of 13