Delhi District Court
Rajesh Saxena vs Kamal Maurya on 20 February, 2026
CS SCJ 450/20 RAJESH SAXENA VS. KAMAL MAURYA AND ORS.
IN THE COURT OF SH. AJEET NARAYAN
JSCC-ASCJ-GJ, SOUTH EAST DISTRICT, SAKET COURTS,
NEW DELHI
DLSE030009612020
CS No. 450/2020
CNR No. DLSE03-000961-2020
(1) SH. RAJESH SAXENA
S/o Late Sh. Jagdish Chand Saxena
R/O 1103/10, Govindpuri, Kalkaji, New Delhi - 110019.
(2) SH. VIRENDER SARPAL
S/o Late Sh. Prakash Sarpal
R/o 1107B, Govindpuri, Kalkaji, New Delhi-110019.
(3) SH. SURINDER SINGH
S/o Late Sh. Tarshem Singh
R/o 1102/B, Gali No. 10,
Govindpuri, Kalkaji, New Delhi-110019.
(4) SH. KRISHAN KHURANA
S/o Sh. O.P. Khurana
R/o 1107-A/10, Govindpuri, Kalkaji, New Delhi-110019.
(5) SH. AMARJEET SINGH
S/o Sh. Harbans Singh
R/o 1049-F, Govindpuri, Kalkaji, New Delhi-110019.
(6) SH. JOGA SINGH
S/o Sh. Phalel Singh
R/o 1049, Gali no. 10, Govind puri, Kalkaji, New Delhi- 110019.
(7) SH. GURVINDER SINGH
S/o Late Sh. Pyare Singh
R/o 1049A, Gali No. 10, Govindpuri,
Page No. 1 of 25
CS SCJ 450/20 RAJESH SAXENA VS. KAMAL MAURYA AND ORS.
Kalkaji, New Delhi - 110019. ...Plaintiffs
VERSUS
1. SH. KAMAL MAURYA
Contractor /Owner
2. SH. FARE SINGH
Contractor /Owner
Both R/o: 1107/1107-A, Gali No.10,
Govindpuri, Kalkaji, New Delhi-110019.
3. SOUTH DELHI MUNICIPAL CORPORATION
Through Commissioner,
K.D. Colony, Sector -9, Rama Krishan Puram, New Delhi- 110022
4. THE EXECUTIVE ENGINEER BUILDING DEPARTMENT,
Room No. 207, SDMC, Jal Vihar, Central Zone, New Delhi-110029
5. THE COMPETENT AUTHORITY
Director Revenue,
Delhi Jal Board, Headquarters, Jhandewalan, Karol Bagh, New Delhi.
6. THE COMPETENT AUTHORITY
Joint Director (Revenue), DJB, S/W/PIO, GK-I, New Delhi - 110048.
7. THE COMPETENT AUTHORITY,
BSES Rajdhani Power Ltd.
C-Block, 1st Floor, BSES Bhawan, Nehru place,
Behind DTC Bus Terminal, New Delhi-110019. ...Defendants
Date of Institution : 21.03.2020
Date of Reserving Judgment : 08.01.2026
Date of Judgement : 20.02.2026
Final order : Suit Dismissed.
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CS SCJ 450/20 RAJESH SAXENA VS. KAMAL MAURYA AND ORS.
SUIT UNDER SECTION 91 OF CPC FOR DECLARATION, PERMANENT
AND MANDATORY INJUNCTION.
JUDGMENT
1. Vide this judgment, I shall dispose of the instant civil suit under Section 91 of Civil Procedure Code, 1908, filed by 7 plaintiffs, namely Rajesh Saxena, Virender Sarpal, Surinder Singh, Krishan Khurana, Amarjeet Singh, Joga Singh, Gurvinder Singh against the defendant No 1 and defendant No. 2, who are Kamal Maurya, Fare Singh, respectively and other authorities SDMC, Delhi Jal Board, BSES Rajdhani Power, who are defendant No. 3 to defendant No. 7, for declaration, permanent and mandatory injunction. During trial, defendant No. 3 and 4, i.e., SDMC and Building department of SDMC were proceeded ex-parte.
PLAINTIFF'S VERSION
2. It is submitted on behalf of the plaintiffs that the plaintiffs are permanent residents of the locality and have been residing with their respective families at their respective addresses for last many years. The property bearing No. 1107/1107-A, Gali No.10, Govindpuri, Kalkaji, New Delhi- 110019 (hereinafter referred as suit property) is a big property, measuring area 240 sq. yds. approx. It is submitted that for obtaining new 13 electricity meters, the defendants no.1 & 2 submitted the address of suit property, as 1107A, Gali No.10, Govindpuri, Kalkaji, New Delhi. It is further submitted that, the defendants no.1 & 2 are stated to be the contractors/owners of the suit property and initially they renovated and reconstructed the old existing structure and constructed four flats on each three floors. The basement and ground floor has been already constructed and there is no public nuisance with respect to the basement and Page No. 3 of 25 CS SCJ 450/20 RAJESH SAXENA VS. KAMAL MAURYA AND ORS.
ground floor. In this way there are total 12 flats on the aforesaid land, besides the basement and the ground floor. The defendants no.1 & 2 started to construct two more floors upon the existing structure of three floors/building. In this regard the building materials have been collected over the top floor. The defendants no.1 & 2 have covered almost 99.9% of the area of total area 240 sq. yds., which is completely illegal and unauthorized in view of provision of SDMC. It is submitted that the defendants no. l & 2, probably did not obtain the permission to construct the existing flats from the SDMC, hence the construction is illegal and unauthorized. The illegal and unauthorized construction is going on very speedily by the defendants no. 1 & 2 in connivance of other defendant no. 3 & 4, who are supposed to keep strict vigil over the construction in the concerned area. It is submitted that as per law passed by the South Delhi Municipal Corporation/defendant no.3, wherein maximum height of construction is up to 15 metres, when there is no space for parking and on other hand, the maximum height of construction is permitted up to 17.5 meter, in case of provision of parking at ground level.
2.1. It is further submitted that despite the multiple flats in the building, there is no provision of parking at the ground level of the suit property, hence in the absence of proper parking, the vehicles of the occupants shall be at public place, which is a case of public nuisance. It is further submitted that the defendants no.1 & 2 have constructed balconies of length about 3 feet on each floor, which was not constructed in the earlier construction and in order to construct the balconies, the defendants no. l & 2 had demolished the respective area of the linter to construct approx. 3 feet balcony, by way of implanting iron angle in the linter and thereafter a fresh linter over the said area has been constructed. So, in Page No. 4 of 25 CS SCJ 450/20 RAJESH SAXENA VS. KAMAL MAURYA AND ORS.
this way the original linter weakened which is dangerous for the construction. It is further stated that the defendants no.1 & 2 have installed water meters in the common street which has been covered by iron fencing of approx. 36 x10 inch, so it always causes great inconvenience to the public at large. It is further submitted that the defendants no.1 & 2 had got sanctioned 13 electricity meters beside three electricity meters from BSES Rajdhani Power Ltd. without the due verification. The defendants no.1 & 2 misused the electricity by taking the electricity through the said three meters for construction of the rest of the flats. This is a clear case of misuse of electricity.
2.2. It is further submitted that it is high probable that the flat owners/occupants will park their vehicles in the adjoining street which is 17-18 feet wide because there is no parking space at ground and due to which it can be prudently assumed that the condition of the street, in case of parking, became miserable and will cause great inconvenience to the public. It is further submitted that it can be safely presumed that, in case of fire, fire extinguishing van cannot access the concerned area, which is completely against the public safety and against the environment. It is further submitted that the stairs in the building are of approx. 3.1/5 feet in width i.e. single stairs, which is not sufficient for proper exit of the inhabitants. It is further submitted that the electricity meters are also installed above the stair place. There are likely possibilities of casualties because of non-availability of proper and sufficient space in case of fire or untoward incident.
2.3. It is further submitted the defendants no. 1 & 2 had also taken the illegal construction of water supply of Delhi Jal Board. It is the settled law that the water supply shall be given to the constructed portion with consideration of all Page No. 5 of 25 CS SCJ 450/20 RAJESH SAXENA VS. KAMAL MAURYA AND ORS.
legal majors. In case, the water connection has been given to the said constructed floor and also some other portions of the said house, that shall affect the water flow and water supply to locality. There are strong possibilities that the illegal DJB connections have been managed between the defendants no. 1 & 2 and DJB officials, because there is already connection of Delhi Jal Board Water pipeline. It is stated that the plaintiffs have been facing great difficulties due to unauthorized illegal construction of the defendants no.1 & 2, at the locality witnessing the suit property. The illegal and unauthorized act of the defendants no.1 & 2 has been badly affecting the common street width approx. 17-18 feet. It is further stated that in the absence of provision of parking in case all the flats are purchased by their prospective buyers, the vehicles of the flat owners/occupants shall be on the nearby street which shall cause great inconvenience and hardship to the public and the plaintiffs who have been living in the same locality. It is submitted that present suit is purely in the nature of public convenience and for the sake of safety and prosperity of the public at large. Hence, the present suit is filed by the plaintiff seeking following reliefs:
a) to pass a decree of permanent injunction in favour of plaintiffs and against the defendants thereby restraining the defendants, their family members, labours, masons, executors, assignee etc. from raising further illegal and unauthorized construction upon the existing fourth floors of suit property i.e. bearing No.1107/1107-A, Gali No.10, Govindpuri, Kalkaji, New Delhi-110019;
b) to pass a decree of permanent injunction in favour of plaintiffs and against the defendants thereby restraining the defendants no. 5 to 7, not to grant more than 12 electricity and water connections at the suit property bearing No.1107/1107-A, Gali Govindpuri, Kalkaji, New Delhi-110019;Page No. 6 of 25
CS SCJ 450/20 RAJESH SAXENA VS. KAMAL MAURYA AND ORS. c) to pass a decree of mandatory injunction in favour of plaintiffs and
against the defendants thereby directing the defendants, their family members, labours, masons, servants, executors, assignee to remove the illegal and unauthorized construction carried out by the defendants no.1 & 2, above the fourth floors of suit property bearing No.1107/1107-A, Gali No.10, Govindpuri, Kalkaji, New Delhi-110019 and further direct the defendants to remove the electricity motor situated in street covered by 36x10 iron jaali: and
d) to pass a decree of declaration in favour of plaintiffs and against the defendants thereby declaring the construction raised by the defendants no.1 & 2 above 15 meters from ground level at the suit property bearing No.1107/1107-
A, Gali No.10, Govindpuri, Kalkaji, New Delhi-110019, as illegal and unauthorized construction;
DEFENDANT'S VERSION
3. The defendants appeared before the court pursuant to service of summons. However, separate written statements were only filed by the defendant no.(s) 1, 2, 3, 5 and 6. Defendant No. 7/BSES did not file any written statement in the present case.
3.1. Joint WS has been filed on behalf of the defendant no.(s) 1 and 2 , wherein it is stated that the suit filed by the plaintiffs is an extreme abuse of process of court. No cause of action arose to the plaintiff to file the suit in hand. The plaintiffs have not come to the court with clean hands and have concealed material facts from this Court. It is further submitted that the defendant no.(s) 1 and 2 have already completed the construction and all property/flats already have been sold to the purchasers respectively, so the present suit is not Page No. 7 of 25 CS SCJ 450/20 RAJESH SAXENA VS. KAMAL MAURYA AND ORS.
maintainable in the present form. It is further stated that suit is not maintainable as the plaintiff has mis- represented facts before this court, made false and frivolous averments and concocted story just to mislead the Court. It is further stated that the plaintiffs are neighbours and are land grabber of the area. They are used to extorting money from the local residents who raise any construction in the locality, whereas they all have constructed various building and houses, but when other persons raise any construction or build house, the plaintiffs demand money from them and on refusal, they file false complaints against the local residents and this litigation, too, is a result that mischievous mind of the plaintiffs. The construction, if any has been completed with due consent and information of the authority concerned. The suit is bad for misjoinder and non- joinder of the necessary parties. The suit of the plaintiffs is not maintainable as the plaintiff have not paid the ad-valorem court fees and site plan. That suit of the plaintiffs is in fructuous and no injunction can be granted for the past legal and valid acts. All the constructions made by the defendants No.1 and 2, have been made with prior permission and sanction from the authority concerned and no authorities have ever declared, the construction made by the defendants, as illegal and all the flats have been constructed as per the by-laws and provisions of the concerned authorities. Defendant No. 1 and 2 have denied all the averments made in the plaint. It is further stated that all the electricity meters were installed on different flats which were installed in the names of different flats buyers/ owner and there is no misuse of electricity by the defendants. It is submitted that construction was made as per sanctioned plan approved by concerned authorities and all the construction has already been completed and presently no construction is going on. It is further submitted that water connection has been sanctioned as per sanction plan by the concerned Page No. 8 of 25 CS SCJ 450/20 RAJESH SAXENA VS. KAMAL MAURYA AND ORS.
authorities. It is further submitted that there is sufficient parking space on the ground for vehicles of all the flat owners/occupants and no vehicle is being parked on the street. It is prayed that suit of the plaintiff may be dismissed.
3.2. Written statement has been filed on behalf of the defendant no. 3/SDMC, (defendant No. 4 also is the Building Department of SDMC), the stating that the suit of the plaintiffs is not maintainable in the present form against the defendant and is liable to be dismissed at the very onset, as the plaintiff is guilty of Suppressio Veri and Suggestio Falsi. It is stated that the plaintiff has cooked false & fabricated story before this Court. The plaintiff has no cause of action to file the present suit against the answering defendant. The present suit of plaintiff is barred by the provisions contained under Section 477 and Section 478 of the DMC Act for want of service of statutory notice upon the answering defendant and as such the suit filed is not maintainable and is liable to be dismissed qua the answering defendant. The plaintiff with ulterior and malafide motives has filed the instant suit before this Court in order to cause undue harassment to the answering defendant and as such the suit is nothing but a gross abuse of process of law. Thus, the instant suit filed by the plaintiff is not maintainable and same is liable to be dismissed. It is stated that as per the records of the Building Department maintained by the answering defendant SDMC, the suit property has already been booked under Section 343/344 of the Delhi Municipal Corporation Act vide U/C File No 220/UC/EE(B)-I/CNZ/20 dated 15.09.2020, for the unauthorized construction in shape of Fourth Floor (Basement to third floor is old and occupied). It is stated that in respect of property in question, the answering defendant had issued work stop notice to SHO/PS Govind Puri, Delhi, for getting the construction activity stopped and to confiscate the material Page No. 9 of 25 CS SCJ 450/20 RAJESH SAXENA VS. KAMAL MAURYA AND ORS.
and also to remove the work force engaged in construction activity. It is further submitted that as per the record of the above said department of the answering defendant, demolition and sealing action has also been carried out against the suit property on 16.10.2020 and 11.12.2020 and that during the course of action dated 16.10.2020, part demolition of the 4th floor roof and two RCC panel of the 4th floor has been done and the said floor has also been sealed by the answering defendant. It is further submitted that the on 11.12.2020, fourth floor of the property in question was sealed at 5 points. The status report with this effect has already been filed before this Court. Hence the answering defendant have already initiated the action as per the applicable law and has prayed to dismiss the suit.
3.3. Joint written statement has been filed on behalf of the defendant no.(s) 5 and 6/Delhi Jal Board (DJB) stating that the plaintiff has not approached the Court with clean hands and had suppressed some material facts which are very vital for the proper adjudication of the case. It is submitted that no cause of action had ever accrued against the defendant/DJB and in favour of the plaintiff and as such the suit of the plaintiff is liable to dismissed. It is denied by the defendants that defendant No. 1 and defendant No. 2 had taken illegal water supply of DJB for construction and has submitted that at the time of giving the supply of water, the cost of water was calculated against K. No.2286451484, and the bills of the same are attached, which is in the name of company i.e. EBP India Pvt. Ltd., having its address as 1107/10, Ground Floor, Back Side, RHS (Right Hand Side), Govindpuri, New Delhi-110019 and the cost of the water was calculated as Rs.50,000/- and it is further submitted that the said cost has Page No. 10 of 25 CS SCJ 450/20 RAJESH SAXENA VS. KAMAL MAURYA AND ORS.
not been paid by the said company since 27.11.2019 and the answering defendant/DJB will take appropriate actions against it.
It is further submitted that 25 water connections were sanctioned with respect to property bearing No. 1107/10, Ground Floor, Back Side, RHS (Right Hand Side), Govindpuri, New Delhi-110019, which are in the name of different consumers. It is further submitted that out of 25 connections, 8 connections are in the name of M/s Blue Rose Construction Pvt. Ltd., and rest with the other consumers. As far as, anything regarding the illegal construction stated in the said Para, the MCD will take appropriate actions against the same and not the answering defendants/DJB. It is further submitted that the property bearing No.1107/10, Ground Floor, Back Side, RHS (Right Hand Side), Govindpuri, New Delhi-110019, consist of six floors having eight units in it and there are six water connection meters attached with the same. It is not out of place to mention here that in the said property 25 water connection bill was passed.
4. Separate replications have been filed by the plaintiffs to the written statements of the defendant no(s). 1, 2, 3, 5 and 6, wherein denying the allegations of the defendants.
5. On the basis of pleadings of the parties, the following issues were framed vide order dated 19.05.2023: -
(i) Whether the suit is not maintainable in the present form? OPD.
(ii) Whether the Plaintiffs are entitled to the relief of Permanent Injunction in the nature of restraint against raising of further illegal and unauthorized construction at the suit property as prayed for in the clause (a) of the plaint? OPP.Page No. 11 of 25
CS SCJ 450/20 RAJESH SAXENA VS. KAMAL MAURYA AND ORS.
(iii) Whether the Plaintiffs are entitled to the relief of Permanent Injunction restraining the Defendant No. 5 to 7 from granting more than 12 electricity and water connections at the suit property? OPP.
(iv) Whether the Plaintiffs are entitled to the relief of Mandatory Injunction in the nature of directions to the Defendants for removal of unauthorized construction carried out in the suit property above fourth floor as prayed for? OPP.
(v) Whether the Plaintiffs are entitled to the relief of declaration against the Defendants declaring the construction raised by Defendant No.1 and 2 above 15 meters from the ground level at the suit property as illegal and unauthorized? OPP.
(f) Relief.
PLAINTIFF'S EVIDENCE
6. The plaintiffs have only examined the plaintiff no. 6/Joga Singh as PW-6 and tendered his evidence by way of affidavit Ex.PW6/A and relied upon the following documents:
(a) Copy of photograph showing water motor jaals are Mark A;
(b) Copy of photograph electricity meters installed in the building are Mark B;
(c) Copy of photograph showing stairs of the building is Mark C;
(d) Photograph of water motors jaal is Mark D;
(e) Copy of Aadhar Card of plaintiff No. 6 is Ex. PW6/5 (OSR);
(f) Office Copy of legal notice dated 20.01.2020 is Ex. PW6/6;Page No. 12 of 25
CS SCJ 450/20 RAJESH SAXENA VS. KAMAL MAURYA AND ORS.
(g) Copy of postal receipts showing sending legal notice and post to the defendants are Ex. PW6/7.
7. Thereafter, on 22.07.2025 right to PE was closed, as many opportunities have been granted to the plaintiff for leading further PE.
DEFENDANT'S EVIDENCE
8. Defendant No. 5 and 6/Delhi Jal Board chose to lead evidence and examined Mr. M.K. Arora, ZRO as D6W-1 who tendered his evidence by way of affidavit Ex. D6W1/A and has relied upon copy of DJB Bill against K. No. 2286451484 as Ex. D6W1/1 (colly). D6W-1 was duly cross-examined by learned Counsel for the plaintiff. Apart from defendant no 5 and 6, no defendant had led any evidence. Thereafter, DE was closed vide order dated 01.12.2025 and the matter was put up for final arguments. After hearing the final arguments, matter was listed for Judgment.
FINDINGS
9. I have heard the arguments advanced by Ld. Counsel for the parties and carefully perused the record. My issue-wise findings are as under: -
Issue Nos. 2 to 5 shall be taken together and decided at the same time as they are inter-connected and same appreciation of evidence is required to decide these issues: -
ISSUE NO. 2 to 5 Page No. 13 of 25 CS SCJ 450/20 RAJESH SAXENA VS. KAMAL MAURYA AND ORS.
(ii) Whether the Plaintiffs are entitled to the relief of Permanent Injunction in the nature of restraint against raising of further illegal and unauthorized construction at the suit property as prayed for in the clause (a) of the plaint? OPP.
(iii) Whether the Plaintiffs are entitled to the relief of Permanent Injunction restraining the Defendant No. 5 to 7 from granting more than 12 electricity and water connections at the suit property? OPP.
(iv) Whether the Plaintiffs are entitled to the relief of Mandatory Injunction in the nature of directions to the Defendants for removal of unauthorized construction carried out in the suit property above fourth floor as prayed for? OPP.
(v) Whether the Plaintiffs are entitled to the relief of declaration against the Defendants declaring the construction raised by Defendant No.1 and 2 above 15 meters from the ground level at the suit property as illegal and unauthorized? OPP.
10. The burden of proving the issue no. 2 to 5 lies upon the plaintiffs. It is the case of plaintiffs that the present suit has been filed under Section 91 CPC, jointly by 7 plaintiffs, herein, alleging public nuisance primarily against the defendant No. 1 and 2, that they are constructing property bearing No. 1107/1107-A, Gali No.10, Govindpuri, Kalkaji, New Delhi- 110019, i.e., suit property and while constructing the said property, public nuisance is being committed by both the defendants and other defendants who are statutory authorities are not taking any action against them. It is claimed by the plaintiffs that public nuisance is being committed in following manner by defendants No. 1 and 2:
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(i) that they are doing illegal and unauthorized construction in the suit property, and;
(ii) that, there is no provision of parking at the ground level of the suit property, hence, in the absence of proper parking, the vehicles of the occupants shall be parked at public place, and;
(iii) that, in order to construct the balconies, approx. 3 feet balcony in the building, the defendants no. l & 2 had demolished the respective area of the linter by way of implanting iron angle in the linter and thereafter a fresh linter has been constructed, due to which building has become dangerous, and also, it is claimed that the stairs in the building are of approx. 3.1/5 feet in width i.e. single stairs, which is not sufficient for proper exit of the inhabitants causing inconvenience, and;
(iv) that, defendants no.1 & 2 have installed water meters in the common street which has been covered by iron fencing of approx. 36 x10 inch, so it always causes great inconvenience to the public at large, and;
(v) that, defendants no.1 & 2 had got sanctioned 13 electricity meters beside three electricity meters from BSES Rajdhani Power Ltd., without the due verification, so, they have misused the electricity by taking the electricity through the said three meters, for construction of the rest of the flats, and;
(vi) that, defendants have taken the water supply illegally from Delhi Jal Board, for the construction of the building, thereby misusing the water connection.
Now, before coming to the facts of the present case, law regarding public nuisance under Section 91, CPC needs to be discussed. Section 91 of CPC provides that:
Page No. 15 of 25CS SCJ 450/20 RAJESH SAXENA VS. KAMAL MAURYA AND ORS.
"Section 91: Public nuisances and other wrongful acts affecting the public.
(1) In the case of a public nuisance or other wrongful act affecting, or likely to affect, the public, a suit for a declaration and injunction or for such other relief as may be appropriate in the circumstances of the case, may be instituted,
(a) by the Advocate-General, or,
(b) with the leave of the Court, by two or more persons, even though no special damage has been caused to such persons by reason of such public nuisance or other wrongful act.
(2) Nothing in this section shall be deemed to limit or otherwise affect any right of suit which may exist independently of its provisions."
By way amendment in 1976, the scope of Section 91 came to be expanded, in two ways. First, in addition to the Advocate General instituting a suit, such suit can now be instituted with the leave of the Court, by two or more persons. Second, the word 'wrongful act' was added as a ground for action in public interest in addition to "Public Nuisance". Resultantly two or more persons with the leave of the Court can institute a suit in respect of wrongful acts which affect the public, apart from cases of public nuisance. But it is very important to note that even wrongful acts which are alleged should affect the public at large.
Now, as per Section 3(48) of the General Clauses Act, 1897, the definition of "public nuisance" is derived from Section 268 of the Indian Penal Code (IPC). This definition is adopted to satisfy the objectives of Section 91 of the Civil Procedure Code (CPC), which deals with public nuisances or other wrongful acts affecting the public.
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Section 268 IPC defines public nuisance as a person is guilty of a public nuisance who:
(i) does any act or is guilty of an illegal omission;
(ii) which causes (a) any common injury, (b) danger or (c) annoyance, to,
(iii) the public or to the people in general, who dwell or to occupy property in the vicinity; or
(iv) causes injury, obstruction, danger or annoyance to persons who may have any occasion to use any public right.
The term 'public' is defined in Section 12 of IPC, 1860. The word 'public' includes any class of the public or any community. Thus, a class or community residing a particular locality may come within the term 'public'.
Hence, Public nuisance is an act of doing something that tends to the annoy the whole community in general or neglecting to do anything that the common good of whole community requires. It is an act or omission affecting the public at large, or considerable portion of general public, and interferes with rights which the members of the community might otherwise enjoy. Public nuisance is based on the principle embodied in the maxim of civil law " Sic utere tuo ut rem publikum non laedas", which means 'enjoy your property in such a way as not to injure the rights of the public.' In M/s Adani Wilmar Ltd. and Anr. Vs. Mr. A. S. Hansraj and Anr., 2018 SCC On Line Mad 1788, it has been held by Division Bench of the Hon'ble Madras High Court that:
"11. We are of the considered view that the language as used under Section 91(1) of CPC is clear and unambiguous and the same can be understood in its natural and ordinary sense. There is no requirement Page No. 17 of 25 CS SCJ 450/20 RAJESH SAXENA VS. KAMAL MAURYA AND ORS.
to refer to the General Clauses Act or the Penal Code, 1860 in order to understand the meaning of the words employed under Section 91 (1) of CPC. The word wrongful acts have to be understood as any legal wrong that prejudicially affects a legal right of any person. The averments made in the plaint by the plaintiffs against the defendant's sufficiently falls within the scope of the word "wrongful acts". Even for the purpose of understanding the word "public nuisance" it is not necessary to employ the meaning to it under Section 268 of IPC for the reason that it is a criminal statute where rules of strict interpretation is followed. The ordinary meaning of the "public nuisance" will encompass any act affecting the public at large which seriously interfere with the health, safety, comfort or convenience of the public generally by virtue of an act of any person or entity. The plaintiffs have made necessary averments in the plaint touching upon the aspect of the "public nuisance" also against the advertisement given by the defendants.
12. The scope of a suit filed under Section 91 CPC by the very language used in the provision gives a very wide amplitude. A plain reading of the Section would go to show that in case of a "public nuisance" or other "wrongful acts" affecting, or likely to affect the public, false within the scope of Section 91(1) CPC. The word "other"
also assumes significance as it clearly drawn a distinction from the word "public nuisance". Similarly, the words "likely to affect" taken within its sweep will include any possible act in future. Thus, the overwhelming factor is that of public interest. This is once again made clear by dispensing with the personnel injury termed "special damage". Two or more persons can file a suit on this nature with the leave of the Court even though no special damage has been caused to such persons by reason of such "public nuisance" or "other wrongful acts". In our considered opinion, even an advertisement which is likely to affect the public at large can fall within the scope of Section 91 CPC.....".
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In Fayzan Khan and Ors v. Superintendent of Land Records and Ors, IA No. 3533 of 2023 it has been held by Hon'ble Bombay High Court that:
"16. There can be no duality of opinion that the enabling provision contained in Section 91(1) of the Act serves a salutary purpose. With the amendment of 1976, the scope of the said provision stands expanded to subsume in its fold wrongful acts as well. A case of public nuisance does not present much difficulty as ordinarily public nuisance affects public interest as a matter of necessary corollary. It is in the case of wrongful acts, the applicability of the provisions contained in Section 91(1) is required to be tested. From the text of Section 91(1) it becomes abundantly clear that the wrongful act contemplated by the said section ought to have the propensity to affect the public. It is this potentiality of harm to public in contradistinction to injury to a person or group of persons, which furnishes the test for application of the said provision. Focus is not on the wrongful act but the effect such act has on the public. Therefore, in my view, when the Court is confronted with the question as to whether leave under Section 91(1) of the Code, 1908 deserves to be granted, it has to pose unto itself the question as to whether the alleged wrongful act either affects the public or has the propensity to affect the public. If the answer to the question is in the affirmative, ordinarily leave ought to be granted. ..."
Hence, in a nutshell, acts that seriously interfere with public health, safety, comfort, or convenience can be categorized as public nuisance. Also, there should be material interference with the physical comfort of the community, if any, which must be considerable and injurious immediately and not hypothetical. Hence, plaintiff has to prove imminent danger or actual nuisance and mere apprehension may not suffice, unless immediate harm is shown.
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11. Coming to the facts of the case, in order to prove his case, plaintiffs have examined only one plaintiff, plaintiff No. 6/Joga Singh, who has mainly relied upon the copy of photographs showing water motor jaals which are Mark A, showing electricity meters installed in the building which is Mark B, photograph showing stairs of the building which is Mark C and photograph of water motors jaal which is Mark D. Apart from photographs, the other documents are merely Adhar card, copy of legal notice, postal receipts etc, which are formal documents, which cannot prove the case of plaintiff. Coming to the evidence of PW-6, he has deposed on the line of his plaint, however, perusal of copy of photographs relied upon by plaintiffs shows that the said photographs only depict that there are some water motors in iron box, there is electricity meter and there are stairs shown in the photographs and nothing else.
It is the case of plaintiff that defendants are making illegal and unauthorised construction in the suit building by constructing balconies etc., and there is no parking available in the building, and they have caused public inconvenience by installing water motors in common street and also that defendants have taken electricity and water connection illegally. However, by no stretch of imagination, the said facts can be proved, only by filing copy of photographs by the plaintiff. The said copy of photographs is also not proved as per law and are not admissible in evidence without any Section 65-B, Indian Evidence Act Certificate, which is not on record. There is not even an iota of evidence on record to prove the contention of the plaintiffs that defendants are causing public nuisance or inconvenience by installation of water motors in public street or there is no parking space in the ground for parking of vehicles of occupants of the suit property and they are parking their cars on main road. The allegation of causing public inconvenience by installation of water motors in Page No. 20 of 25 CS SCJ 450/20 RAJESH SAXENA VS. KAMAL MAURYA AND ORS.
public street cannot be only proved by photographs of the same. Plaintiffs have only examined only one witness, i.e., plaintiff No. 6 and no other person or witness have been examined to show that defendant no. 1 and 2 are committing any public nuisance or any wrongful act by installation of water motors in the public street. No public witness or any other person living in the vicinity has been examined by the plaintiffs to support its case. It is pertinent to note that the suit under Section 91 CPC was filed jointly by seven plaintiffs, however, apart from plaintiff no. 6, no other plaintiff has been examined. This shows that the provision under Section 91 CPC has been misused by the plaintiffs.
Coming to the cross examination of the PW-6, he has admitted in his cross-examination that he has no relation with the defendant no. 1 and 2 and the distance between the suit property and his property is about 15 feet. He has further deposed that his father had filed a complaint against the defendant no. 1 and 2 about the illegal construction to MCD, however the said complaint has not been filed with the present suit. PW-6 has further deposed that he cannot admit or deny that the defendant no. 7 BSES has sanctioned the electricity connection to the defendant no. 1 and 2 without verification. PW-6 has further deposed that he does not know the rules and regulations and bye-laws of MCD. Further, when a question was asked to PW-6 as to on what basis he has stated that property in question is illegally and unauthorizedly constructed, to which the witness had replied that since the building was being constructed up till 4 th floor, so on that basis the property is illegal and unauthorized construction . He has further deposed that he has only once visited the property in question, when construction was going on. PW-6 has further stated that he has not seen any document on the basis of which he has stated that the Delhi Jal Board has given illegal connection to defendant no. 1 and 2 for construction of suit property.
Page No. 21 of 25CS SCJ 450/20 RAJESH SAXENA VS. KAMAL MAURYA AND ORS.
PW-6 has further deposed that he does not know who is the owner of the property in question and his house is opposite side of the suit property.
With respect to the contention of plaintiff that defendants have taken water connection and electricity connection in unauthorised manner or illegally without due verification, it cannot be termed as public nuisance, as it is inconceivable that it affects the public or community at large or it causes public inconvenience. However, even otherwise, plaintiffs have failed to prove even the said fact that the electricity connection and the water connection have been taken illegally by the defendant no. 1 and 2. No documents or official witness has been examined by plaintiffs to show that defendant No 1 and 2 have taken electricity connection or water connection illegally or in unauthorised manner. However, Delhi Jal Board has come to depose in this case and has filed DJB water bill in evidence and in cross examination of D6W-1, nothing favourable has been elicited by the plaintiff. D6W-1 has denied the suggestion given to him that water connection has been provided by the DJB despite property being booked by MCD. Hence, there is not even admission on the part of Delhi Jal Board.
As far as contention of plaintiffs that defendant no. 1 and 2 have committed public nuisance as the building is unauthorizedly and illegally constructed, no relevant witness has been examined by the plaintiffs or any document has been filed in evidence to prove the same. Although, the defendant no. 3 who is the SDMC, has filed its written statement and stated that the property in question was booked by MCD vide order dated 15.09.2020 for the unauthorized connection in the shape of 4th Floor and work stop notice was already issued and demolition and sealing action has already been carried out against the suit property on 16.10.2020 and 11.12.2020. However, the defendant Page No. 22 of 25 CS SCJ 450/20 RAJESH SAXENA VS. KAMAL MAURYA AND ORS.
no. 3 as well as 4 (Building Department, MCD) were proceeded ex-parte during the trial and plaintiffs have not summoned any official witness from MCD to prove the unauthorized construction in the suit property and only by filing a WS by the defendant no. 3 cannot prove the fact of unauthorized construction in the suit property. However, even for the sake of arguments, if the said fact of unauthorized construction in the suit property is admitted, same cannot amount to a public nuisance or a wrongful act affecting the public at large. Not every kind of unauthorized construction can be termed as public nuisance, as in this case, even as per admission of plaintiff, defendant no. 1 and 2 were constructing 4th Floor on the property illegally, hence, by the said act it cannot be assumed that the said illegal construction affects the public at large. It is not the case of plaintiffs that due to the said illegal construction, there is any issue of public safety or there is any structural deficiency in the building due to which building has become dangerous. Hence, even if it assumed that the defendant no. 1 and 2 are making illegal or unauthorized construction in the suit property, the same cannot be considered as public nuisance or any wrongful act affecting the public at large.
Now coming to the other contentions of the plaintiffs that there is no sufficient parking available in the building or the stairs in the building are not proper, the same cannot be considered as public nuisance by any means, as these are mere apprehension and nothing has been proved by the plaintiffs. Also, due to alleged insufficient parking or improper stairs in the building, only the residents of the building are going to be affected and by no stretch of imagination, any public nuisance is being committed by the said act.
In the present case, only plaintiff No. 6/Joga Singh has come to depose in evidence and no other plaintiff has come forward to prove the case of Page No. 23 of 25 CS SCJ 450/20 RAJESH SAXENA VS. KAMAL MAURYA AND ORS.
plaintiffs. Also, it is admitted by plaintiff no. 6 in evidence that his father had earlier filed a complaint against the defendant no. 1 and 2, about the illegal construction to MCD, however same has not been filed with the suit. It is settled position of law that courts cannot be used by any party as a tool to settle its personal score in the garb of public interest. Section 41(j) of Specific Relief Act provides that no injunction can be granted when plaintiff has no personal interest in the matter and such a bar cannot be overcome by joining two or more persons, who are interested in causing loss to the other party than to cause any public benefit. In the present case, more than 2 persons have been joined to file the case, however other plaintiffs have not pursued the case except plaintiff no. 6, showing lack of bonafide in the present case. It is the settled the principle that a person who does not come to the court with clean hands is not entitled to any relief.
Therefore, plaintiffs have miserably failed to prove that defendant no. 1 and 2 have committed any public nuisance or any wrongful act by the alleged acts stated by plaintiffs, hence, plaintiffs have failed to prove that they are entitled to relief of permanent injunction or declaration in their favour. Accordingly, issue no. 2, 3, 4 and 5 are decided against the plaintiff and in favour of the defendants.
12. ISSUE NO. 1(i) Whether the suit is not maintainable in the present form? OPD.
The onus to prove this issue is on defendants. Defendant no. 1 and 2 have not led any defence and only defendant no. 5 & 6 i.e. Delhi Jal board has led defence evidence. The evidence led by D6W-1 is only on the lines that the Delhi Jal Board has sanctioned water connection in a proper manner and no illegality Page No. 24 of 25 CS SCJ 450/20 RAJESH SAXENA VS. KAMAL MAURYA AND ORS.
has been done in this regard. In this case, no evidence has been led on this aspect that whether the suit is not maintainable in the present form or not. The present suit is filed under Section 91 CPC on the ground that public nuisance has been committed by the defendant no. 1 and 2 and which is aided by other defendants who are the statutory authorities. As per plaintiffs, the present suit has been filed in the public interest and after fulfilling the requirements of Section 91 CPC. After filing of the suit, the leave was granted in terms of Section 91 (1) (b) CPC to plaintiffs to pursue the present matter. Hence, it cannot be said that the present suit is not maintainable. The maintainability of the suit and the proving of the case by the plaintiffs are two different things. In the present case, the suit was maintainable as it was filed by more than two persons claiming the act of public nuisance or wrongful act by the defendants. However, ultimately plaintiffs could not prove its case after evidence and trial and are not entitled to the relief. In view of aforesaid discussion, issue no. 1 is decided against the defendants and in favour of the plaintiffs.
RELIEF
13. In view of the above discussions, the suit of the plaintiffs is hereby dismissed.
No order as to costs.
Decree sheet be prepared accordingly. File be consigned to Record Room after due compliance.
Digitally signed by AJEET NARAYANAJEET Announced in the open court Date:
NARAYAN 2026.02.20 16:59:52 +0530 today i.e. 20-02-2026 (Ajeet Narayan) JSCC-ASCJ-GJ: South-East Saket Courts: Delhi Page No. 25 of 25