Delhi District Court
Sh. Naresh Pal Chhabra vs Sh. Sunil Babbar on 11 February, 2016
IN THE COURT OF CIVIL JUDGE07,
CENTRAL DISTT., TIS HAZARI COURTS, DELHI.
Presiding Officer : Ms. AANCHAL, DJS
Civil Suit No. : 374/13
Unique ID No. : 02401C6037732004
Sh. Naresh Pal Chhabra,
S/o Sh. Bhawan Dass,
R/o 1951, Outram Lines,
Kingsway Camp, Delhi110009. .......Plaintiff
Vs.
1. Sh. Sunil Babbar,
S/o Sh. Charanjit Singh Babbar,
C/o M/s Babbar Saree Sangam,
10131015, First Floor, Kucha Natwan,
Chandni Chowk, Delhi110006.
2. M/s Bharti Cellular Ltd.
H5/12, Qutab Ambience,
Mehrauli Road, New Delhi110030.
Also at :
D184, Okhla Industrial Area,
PhaseI, New Delhi110020.
3. Municipal Corporation of Delhi
Through its Commissioner
Town Hall, Chandni Chowk,
Delhi. .......Defendants
Date of Institution of suit : 26.08.2004
Date on which reserved for judgment : 03.02.2016
Date of Judgment : 11.02.2016
JUDGMENT
(1) Vide this judgment, this court shall decide the aforesaid suit filed by Naresh Pal Chhabra Vs. Sunil Babbar & Ors. Suit No. 374/13 Page 1/13 plaintiff claiming following reliefs :
(i) Decree for mandatory injunction against the defendants nos. 1 and 2, directing them to remove second and third floor and the installation of micro light post and other items on the terrace of third floor of property no. 10131015, Kucha Natwan, Chandni Chowk, Delhi and defendant no. 3 to take action as per law against the unauthorized construction raised in property no. 10131015, Kucha Natwan, Chandni Chowk, Delhi.
(ii) Decree of permanent injunction against the defendants thereby restraining the defendants nos. 1 and 2, its officials, servants, employees, agents, associates from installing cellular phone tower/antenna on the terrace of the third floor of the building bearing no. 1013 to 1015, Kucha Natwan, Chandni Chowk, Delhi110006 which is more clearly shown in red colour in the site plan annexed with the plaint.
(2) In brief, the facts as pleaded by the plaintiff in the plaint are following :
(a) That the plaintiff is running his proprietorship business under the name and style of M/s Chhabra Saree Centre at Shop no. 1013, Ground Floor, Kucha Natwan, Chandni Chowk, Delhi110006 and is also owner of the aforesaid shop no. 1013, more specifically shown in green color in the site plan annexed with the plaint.
(b) That the defendant no. 1 is in possession of first floor of property no. 1013 to 1015, Kucha Natwan, Chandni Chowk, Delhi110006 and claims to have purchased the same. He is also running his business under the name and style of M/s Babbar Saree Sangam in the said property.
(c) That the aforesaid shop of the plaintiff and that of defendant no. 1 formed part of the same building. On the ground floor of the said building, there are two other shops bearing Municipal No. 1014 and 1015 besides the shop of the plaintiff. The ground floor and first floors of the building consists of shops no. 1013 to 1015 is having a very old and poor Naresh Pal Chhabra Vs. Sunil Babbar & Ors. Suit No. 374/13 Page 2/13 construction as it is not supported by any concrete pillars.
(d) That defendant no.1 has very illegally and unlawfully constructed second and third floors on the aforesaid building bearing municipal no. 1013 to 1015, Kucha Natwan, Chandni Chowk, Delhi (hereinafter called as suit property) in between 01.08.2004 to 16.08.2004 taking benefit of absence of the plaintiff as he was out of station from 01.08.2004 to 12.08.2004 and his shop remained closed from 13.08.204 to 15.08.2004 on account of Independence Day. The illegally constructed second and third floors are shown in red colour in the site plan. The plaintiff has lodged complaint with number of Govt. Authority in this regard. That the defendant no. 1 has raised unauthorized construction of second and third floor raising one side wall on Chhajja without obtaining any sanction from defendant no. 3 and defendant no. 3 has failed to take action against the unauthorized construction of second and third floor.
(e) That already poor structure of the building in question has now become a danger to the lives and properties of passersby, neighborhood people and the persons working therein.
(f) That the defendant no. 1 has now illegally and unlawfully entered into a contract with defendant no. 2 to install their cellular phone tower on the terrace of third floor of the building in question.
(g) That the plaintiff came to know of the intention of the defendants to install aforesaid cellular phone tower/antenna on 22.08.2004 when some officials of the defendant no. 2 visited the suit property for the purpose of conducting survey. When the plaintiff asked the defendant no. 1 about the purpose of visit of the officials of the defendant no. 2, he disclosed to the plaintiff about the installation of the cellular phone tower/ antenna on the terrace of the third floor of the property in question.
(h) That the plaintiff had immediately objected to the intended act of the defendants nos. 1 and 2 and asked them not to install any tower/antenna Naresh Pal Chhabra Vs. Sunil Babbar & Ors. Suit No. 374/13 Page 3/13 on the terrace of the building in question.
(i) That despite the objections of the plaintiff, the defendant no. 1 and 2 are adamant on installing the cellular phone tower/antenna on the terrace of the third floor of the building in question for which they have no right or authority.
(j) That on 25.08.2004 the plaintiff noticed while passing through the street that in furtherance of their illegal activities, the defendants nos. 1 and 2 have installed "Earth" by boring in the street on the Northern side of the building, whereafter the plaintiff immediately went to police station concerned to report the matter, but he was advised by the police officials present there that the matter is of a civil nature and he should approach the Civil Court. However, on the same day some officials of defendant no. 2 again visited the suit property with a view to implement their illegal threat of installing the cellular phone tower/antenna but due to timely intervention of the plaintiff and neighbors the defendants nos. 1 and 2 could not implement their threat, however, they are still bent upon to install cellular phone tower/antenna, on the terrace of third floor of the building in question. The defendants nos. 1 and 2 have put a micro light post on the terrace of the third floor of suit property and the defendant no. 1 and 2 have no right to use the terrace which has been constructed unauthorizedly.
(k) That as already stated the building is having very poor construction and is a very old one and can not bear the extra load of tower/antenna of cellular phone and may collapse under the heavy weight/pressure of the same. For uninterrupted electricity supply an electricity generator is also installed alongwith other heavy equipments with the cellular phone tower/antenna and as such the installation of cellular phone tower/antenna, if not restrained, shall cause irreparable loss and injury to the plaintiff.
(l) That the defendants nos. 1 and 2 have no right or authority to install the Naresh Pal Chhabra Vs. Sunil Babbar & Ors. Suit No. 374/13 Page 4/13 cellular phone tower/antenna in the suit property and cause damage to the said property and life of the passersby and persons working in the suit property. Therefore, aggrieved with these acts, plaintiff is left with no other efficacious remedy except to file the present suit.
(3) Defendant no. 1 filed the written statement and on merits, denied the facts as stated by the plaintiff in plaint and it is submitted that when defendant no. 1 purchased the property, the construction was already in existence in the attached site plan and there is no new construction over the building and he has got simply repaired the same and plaintiff has no right, title or interest in any manner to create disturbance in the agreement and business with defendant no. 2. Defendant no. 2 has installed/kept 2 little instruments on the roof of the building of defendant no. 1 and in side of the portion of plaintiff and there is no danger and effect of any kind to the side of plaintiff and defendant no. 2 has got the certificate of structural stability from concerned authorities and being satisfied with the assurance of defendant no. 2, defendant no. 1 has allowed to install/keep the instruments on the roof as per rules and plaintiff had never objected to install the instruments over roof and building of defendant no. 1 was totally safe and not old constructed and in deteriorated condition and finally suit of the plaintiff is prayed to be dismissed.
(4) Despite making appearance at the initial stage, no Written Statement is filed by defendant no. 2 and it was proceeded exparte vide order dt. 17.01.2011 passed by ld. Predecessor of this court.
(5) Defendant no. 3 filed Written Statement and the suit of the plaintiff is preliminary objected on the ground that the suit is barred u/s 477/478 of DMC Act for want of mandatory notice. On merits, suit of the plaintiff is denied and it is submitted that defendant has already initiated the action against the unauthorized Naresh Pal Chhabra Vs. Sunil Babbar & Ors. Suit No. 374/13 Page 5/13 construction carried out in the suit premises no. 1015 Kuccha Natwa, Chandni Chowk, Delhi and the same has been booked vide file no. 116/113B/B/UC/CZ/2004, dated 04.10.2004 in the shape U/c of one hall at second and third floor s with stair case and after following due process of law contained under Section 343/344 demolition orders have been passed and served upon the owner of the builder who failed to comply with the instructions contained therein and the unauthorized construction has become liable to be demolished and the same shall be demolished in due course of time as per policy.
(6) On the basis of pleadings, following issues were framed vide order dated 05.04.10 passed by Ld. Predecessor of this Court:
1. Whether there is no cause of action qua defendant no. 1, therefore, the suit is liable to be dismissed? OPD1.
2. Whether the suit is barred u/s 477/478 of the DMC Act for want of mandatory notice? OPD3
3. Whether the plaintiff is entitled for a decree of permanent and mandatory injunction as prayed in the suit? OPP
4. Relief.
(7) Plaintiff appeared in witness box as PW1 and he relied upon the following documents :
1. Site plan as Ex. PW1/1.
2. Reply to the RTI application as Ex.PW1/2 He was not crossexamined on behalf of defendant no. 3 and during the crossexamination conducted on behalf of defendant no.1, plaintiff has also relied upon copies of complaint given to the Office of Governor, Director (Vigilance) MCD as Ex.PW1/D1.
Naresh Pal Chhabra Vs. Sunil Babbar & Ors. Suit No. 374/13 Page 6/13(8) On the other hand, defendant no. 1 examined himself as DW1, Sh. Charanjeet Lal Babbar as DW2, Sh. Satish Verma as DW3 and Sh. Dharmender as DW4 and defendant relied upon the following documents :
1. Sale deed alongwith site plan as Ex. DW1/1.
2. Copies of documents reflecting chain of title of the property alongwith site plan as MARK A. (originals are with previous owner)
3. Receipt of regularization dt 29022008 as Ex. DW1/3.
4. House tax since 1978 as Ex. DW1/4.
5. Master plan MCD 2021 as Ex. DW1/5.
6. Copy of the orders of writ petition no. WPC8934/07 in similar matter as Ex. DW1/6.
But despite opportunity given, none of the witnesses is examined by defendant no.3 and DE was closed vide order dated 01.06.2015 passed by this Court.
(9) Final arguments are heard and record is perused carefully. Now the issue wise findings of this court are as under : ISSUE No. 2 (10) The Onus to prove this issue lies upon the defendant no. 3.
Neither any evidence is led by defendant no. 3 nor plaintiff as PW1 is cross examined on his behalf to prove the facts necessary to decide the issue under consideration otherwise. Hence, the necessary and relevant facts remain unproved and the issue under consideration is decided against defendant no. 3.
Naresh Pal Chhabra Vs. Sunil Babbar & Ors. Suit No. 374/13 Page 7/13 ISSUE No. 1and ISSUE No. 3 (11) Onus to prove issue No.1 lies upon the defendant No.1 whereas the onus to prove the issue No.3 lies upon the plaintiff. These two issues are being taken up together as in the opinion of this Court these issues are connected to each other.
Arguments are opened on behalf of the plaintiff submitting that the plaintiff does not intend to press any relief against defendant No.2 and the relief restraining the installation of microlight post and cellular tower/antenna. Hence, the plaintiff is held not entitled for any relief to this extent being not pressed for.
Now this Court shall examine the material in respect of the subsisting controversies between the parties.
In his Written Statement, It is pleaded by defendant no.1 that the construction was already in existence and no new construction is raised over the building. Defendant no.3 submitted Written Statement that this property has been booked for unauthorized construction on second and third floor and during the course of proceedings, filed two action taken reports on 14112006 and 0412 2007 and two photographs and it was stated that the roof of the third floor of the suit property has been demolished. Defendant no.3 is further directed to file ATR in respect of second floor of the suit property vide order dated 16012008 passed by Ld. Predecessor of this Court. It is only at this stage on 25.02.2008, the defendant no.1 moved an application u/s 151 CPC and it is stated that he has applied to defendant no.3 for regularization of premises/ shop bearing no. 1013 to 1015, second floor, Kucha Natwa, Chandni Chowk, Delhi and regularization proceedings are lying with the office of MCD, Delhi. This is the deemed admission on the part of defendant no.1 that second floor of the suit property has Naresh Pal Chhabra Vs. Sunil Babbar & Ors. Suit No. 374/13 Page 8/13 been constructed illegally and unauthorizedly and this being such, the question of construction raised on third floor to be legal or authorized does not arise. Further, in view of existence of this glaring admission on the part of defendant no.1, the facts, as deposed by defendant no.1 as DW1 in his affidavit from para nos. 2 to 14 are neither trustworthy nor could be believed. Therefore, the defence of defendant no.1, as made by him in his Written Statement stands demolished and it stands proved with these admissions that there exists a cause of action against defendant no.1 and consequently, issue no. 1 is decided in favour of plaintiff and against defendant no.1.
Now, the limited question which remains to be determined is that whether the plaintiff is entitled for permanent injunction against defendant no.1 & defendant no.3. It is vehemently argued on behalf of defendant no.1 that defendant no.3 has already demolished the third floor and defendant no.1 has applied for regularization of the construction as per Master Plan for Delhi 2021. Therefore, no order for removal of construction on suit property till the disposal of the application for regularization may be passed and reliance is placed upon the order passed by Hon'ble High Court of Delhi in WP(C) No.8934/2007, dated 30.11.2007 to substantiate the lines of arguments.
This Court has given the thoughtful consideration to the contentions made.
As per the report of defendant no.3 filed on 04.12.2007, the property was booked for the unauthorized construction on 04.10.2004 in the shape of one hall at second floor and third floor with stair case and the roof of third floor has been demolished but second floor is occupied. Plaintiff in his affidavit, has deposed that defendant no.3 has not demolished the second floor and stairs and no application for regularization filed by defendant no.1 is pending before MCD, as per reply given by defendant no.3 to his application filed under Right to Information Act and he produced the copy of this reply as Ex.PW1/2. The Naresh Pal Chhabra Vs. Sunil Babbar & Ors. Suit No. 374/13 Page 9/13 plaintiff is not crossexamined on behalf of defendant no.1 in respect of any of these facts but certain suggestions have been given to plaintiff, PW1 which have been answered by him as following: "It is correct that defendant no.1 has constructed second and third floors on the property nos. 1013 to 1015, unauthorizedly, Khucha Natwa, Chandni Chowk, Delhi. It is correct that due to holiday of Independence Day, our shop was lying closed. It is correct that defendant no.1 has raised the unauthorized construction on the property in question without sanction plan from MCD. It is correct that the building where the suit property is situated is very old. Earlier the defendant no.1 tried to letout the terrace of third floor of the building to Bharti Airtel to install their tower while the building is in dilapidated condition. I have raised the objections and filed the present suit. I have lodged the police complaint. The police complaint is on record and the same is Ex.PW1/D1. Therefore, I have filed the present suit."
Ex.PW1/D1 is the complaint addressed to the Governor, Director (Vigilance) MCD, etc. where it has been specified by the plaintiff that defendant had caused the construction on second and third floors of the property over a wall of four inches thickness on Verandah of three feet. This fact was also deposed by plaintiff in sub para of para no.5 of his affidavit. Thus, the suggestions given to plaintiff on behalf of defendant no.1 and deposition and evidence led by plaintiff, the factum of unauthorized construction on the second floor by raising one side wall of chhajja/ Verandah inferring the alteration and change in the construction existing on the second floor at the time of purchase of same by defendant no.1 and further construction on the third floor by the defendant no.1, is held proved by the plaintiff and since the defendant no. 1 has not proved the factum that defendant no.3 MCD has demolished the remaining third floor except the demolition of its roof, it is held proved that at present, illegal and unauthorized construction on the Naresh Pal Chhabra Vs. Sunil Babbar & Ors. Suit No. 374/13 Page 10/13 second floor and on third floor exists.
The examination of record reveals that alongwith the application filed on 25.02.2008, defendant no.1 had filed the carbon copy of an application addressed to the Commissioner, MCD for regularization of second floor portion only. Therefore, admitted case of defendant no.1 is that he has not moved to defendant no.3 for regularization of construction on third floor, so this being illegal and carried without sanction plan, must go and the pendency of application of regularization, if any, as claimed by the defendant no.1 is no bar for grant of injunction against defendant no.1 for removal of construction existing on third floor.
Defendant no.1 has neither filed the counter signed copy of regularization application reflecting/ suggesting the filing of the same in the office of defendant no.3 nor summoned any witness from the office of defendant no.3 to prove the filing or pendency of the same before defendant no.3. Not only this, during his crossexamination defendant no.1 deposed as follows: "I have not applied anything for the second floor. I have not filed any Site Plan with the MCD for regularization. I have not taken any step for sanctioning/ regularization of unauthorized construction i.e. the suit property."
In view of this deposition of defendant no.1 and omission on his part to prove the filing of the application, this Court is of the considered opinion that defendant no.1 has failed to prove by the preponderance of probability that he has filed any application for regularization of even second floor of the property. Therefore, this Court is of the opinion that order passed by Hon'ble High Court of Delhi, as relied by defendant no.1, is not applicable under the facts and circumstances under consideration and the defendant no.1 may be directed to remove the illegal and unauthorized construction raised on second floor of the Naresh Pal Chhabra Vs. Sunil Babbar & Ors. Suit No. 374/13 Page 11/13 property. Otherwise too, it is not the case of the defendant no.1 that he has ever followedup his such application, if filed in the office of defendant no.3 or he had taken any reasonable step to know the fate of the same or he has ever approached to any authority or competent Court of law to raise his grievance for omission on the part of defendant no. 3 to process or to decide his application for regularization for the second floor and in such case, it can be inferred that despite the existence of the provisions of getting the 100% ground coverage of the construction regularized in Master Plan for Delhi 2021, the defendant no.1 is not interested to get the same regularized and to seek such benefit. Hence, for the proved fact of existence of unauthorized construction on second floor and third floor (since it is the admitted case of defendant no.1 that only the roof of third floor has been punctured and the remaining portion exists as such) which has not been regularized and that such construction is likely to affect the plaintiff who is working on the ground floor of the same building, it is held that such illegal and unauthorized construction should go and the defendant no. 1 ought to be compelled for removal of the same.
In view of the above discussion, the plaintiff is held entitled for mandatory injunction against defendant no. 1 to the extent that defendant no. 1 be directed to remove second and third floors of the property no. 10131015, Kucha Natwa, Chandni Chowk, Delhi and in case of their omission, defendant no. 3 be caused the same to be removed and issue no.3 is decided accordingly.
ISSUE No. 4 (Relief) (12) In view of the decision of the above issues, the suit of the plaintiff is decreed to the extent that a mandatory injunction is passed against defendant no. 1 whereby he is directed to remove second and third floors of the property no. 1013 1015, Kucha Natwa, Chandni Chowk, Delhi within six weeks from today and in case of such failure on the part of defendant no.1, defendant no. 3 is directed the Naresh Pal Chhabra Vs. Sunil Babbar & Ors. Suit No. 374/13 Page 12/13 cause the same to be removed, as per law. Rest of the suit stands dismissed. Plaintiff is also held entitled for the cost of the suit.
Decree Sheet be prepared accordingly. Thereafter, file be consigned to Record Room.
Announced in Open Court on 11.02.16 at 3:30 p.m. ( AANCHAL ) CIVIL JUDGE07(CENTRAL) DELHI/11.02.2016 Naresh Pal Chhabra Vs. Sunil Babbar & Ors. Suit No. 374/13 Page 13/13 CS No. 374/13 11.02.2016 Present : None for the parties.
Vide separate judgment passed on even date, the suit of the plaintiff is decreed to the extent that a mandatory injunction is passed against defendant no. 1 whereby he is directed to remove second and third floors of the property no. 10131015, Kucha Natwa, Chandni Chowk, Delhi within six weeks from today and in case of such failure on the part of defendant no.1, defendant no. 3 is directed the cause the same to be removed, as per law. Rest of the suit stands dismissed. Plaintiff is also held entitled for the cost of the suit.
Decree Sheet be prepared accordingly. Thereafter, file be consigned to Record Room.
(AANCHAL) Civil Judge07 Delhi/11.02.16 Naresh Pal Chhabra Vs. Sunil Babbar & Ors. Suit No. 374/13 Page 14/13