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IN THE COURT OF MS. KADAMBARI AWASTHI : CIVIL
JUDGE-02, CENTRAL: ROOM NO. 231: TIS HAZARI COURTS :
DELHI
Suit No. 118/10
In the matter of :-
1. Smt. Kanta W/o Sh. Ram Niwas,
2. Sh. Ramesh Chand S/o Sh. Kapoor Chand,
(Both resident of House No. L-224, Shastri
Nagar, Delhi-52).
.................Plaintiffs
Versus
1. Smt. Meena Sharma,
W/o Sh. Dinesh Sharma,
2. Sh. Dinesh Sharma,
S/o Sh. Ratan Lal Sharma,
(Both R/o H.No. L-229, Shastri Nagar,
Delhi-110052).
3. M/s Reliance Infocom Ltd.
Hotel Ranjit, Room No. 102,
Maharaja Ranjit Singh Marg,
New Delhi-110002.
4. Municipal Corporation of Delhi,
through its Commissioner, Town Hall,
Chandni Chowk, Delhi-110006.
5. Delhi Pollution Control Committee,
through its Chairman, 4th Floor,
I.S.B.T Building, Delhi.
..................Defendants
Suit No. 118/10 Kanta Vs Meena Sharma 1/22
Date of Institution : 11.12.2003
Reserve for judgment on : 16.01.2014
Date of Judgment : 31.01.2014
SUIT FOR PERMANENT AND MANDATORY INJUNCTION
JUDGMENT
By this judgment, I shall dispose off the present suit filed for permanent and mandatory injunction.
1. It is stated that plaintiffs are resident of house no. L-224, Shastri Nagar, Delhi and are residing with their family members in the aforesaid premises. It is further submitted that defendant no.1 & 2 are wife and husband and they have purchased the property bearing no. L-225, Shastri Nagar, Delhi. It is further submitted that defendant no. 1 and 2 are running illegal factory of manufacturing the motors of heavy generator sets etc. in the premises bearing no. L-225, Shastri Nagar, Delhi without obtaining the licence from the concerned authority i.e. defendant no. 4.
2. It is further submitted that at the time of purchasing the property by the defendant no. 1 and 2, property bearing no. L-225, Shastri Nagar, Delhi was consisted of only ground floor and even the construction of the ground floor was in a very dilapidated condition. It is also stated that after purchasing the property in question, the defendant no. 1 and 2 raised illegal and unauthorized construction in the said property without any sanctioned site plan from the concerned authority and in gross violation of building bye-laws. It is further Suit No. 118/10 Kanta Vs Meena Sharma 2/22 submitted that defendant no. 1 and 2 raised a wall from the Chajja from 1st floor of the property in question to 5th floor and have not left any open space in the building as per municipal bye-laws.
3. it is also stated that plaintiff has already filed a suit seeking mandatory and permanent injunction against the defendants in a competent court of law and another suit has been filed by mother of plaintiff no.2 for recovery of Rs.4,95,000/- as damages, compensation alongwith permanent injunction defendant no.1 and 2 in another court of law. It is also submitted that defendant no. 1 and 2 also filed a suit for permanent injunction against plaintiff no.1 and 2. It is further stated that defendant no. 4 has filed filed the written statement in the suit filed by plaintiff against defendant which is listed before the court of Sh. Amit Bansal, then Civil Judge, Delhi. The MCD therein submitted that the unauthorized construction raised by defendant no. 1 and 2 in respect of ground floor and 1st floor has been booked vide file no. 156/B/UC/CLZ/96 dated 01.11.1996 and the unauthorised construction of a hall and staircase at second floor and third floor has been booked alongwith other property.
4. It is stated that inspite of these booking of unauthorised construction, defendant no. 1 and 2 in collusion with defendant no.3 raised unauthorised and illegal construction further of a room on the roof of 5th floor. It is also submitted that defendant no. 1 and 2 also raised unauthorised construction of pillars for constructing cellular tower and letting out the same to defendant no. 3. The defendant no. 3 is fixing cellular towers on the roof of 5th floor of property bearing no. L-225, Shastri Nagar Delhi, without taking any permission from defendant no. 4 and 5. It is also stated that defendant no. 3 also fix a Suit No. 118/10 Kanta Vs Meena Sharma 3/22 generator which is very heavy load for the said installation. It is also submitted that plaintiff and other persons of locality several times requested the defendant no. 1 and 2 not to raise any illegal construction of pillars for the purposes of fixing cellular tower but defendant no. 1 to 3 did not pay any heed to the request of plaintiff and other neighborers and work is still in progress.
5. It is submitted that plaintiff no.2 has filed a complaint to Commissioner MCD on 28.10.2003 bu the defendant no. 4 did not take any action on the said complaint. The defendant no. 1 to 3 are adamant to raise/set up the cellular tower on property bearing no. L-225, Shastri Nagar, Delhi. Plaintiff was compelled to make further complaint to commissioner MCD, Delhi and other higher authorities but inspite of the complaints, not action has been taken against defendant no. 1 to 3 by defendant no. 4 and 5.
6. It is stated that the cellular tower will effect the health of plaintiff and other neighborers. The cellular tower can fell at any time and the same can cause harm to plaintiff and other members of locality. It is stated that cellular tower has not been completed till date. It is further stated that defendant no. 1 and 2 have malafide intentions and they have handed over the possession of 5th floor to defendant no.3 for fixing cellular tower, so that defendant no. 4 could not demolish the unauthorised construction raised by defendant no. 1 and 2 in property bearing no. L-225, Shastri Nagar, Delhi which which was booked for demolition by defendant no.4.
7. It is submitted that defendant no. 1 and 2 are influential people Suit No. 118/10 Kanta Vs Meena Sharma 4/22 and claim to have good contacts with the officials of defendant no. 4 and 5. It is further submitted that present suit has been filed against defendant no. 4 and 5 who are necessary parties without serving the notice under Section 478 of Delhi Municipal Corporation Act and relief claimed is of urgent in nature.
8. it is further submitted that cause of action arose in favour of the plaintiff and against defendants on 26.10.2003 when defendant no. 1 and 2 collected the building material and started raising unauthorised and illegal construction of pillars for fixing the cellular tower. It is further submitted that the plaintiff and other locality members requested the defendant no. 1 to 3 not to raise any illegal construction and not to fix the cellular tower but the defendants did not pay any heed to the request of plaintiff and other locality members. It is further stated that cause of action again arose on 28.10.2003 when plaintiff made complaint to defendant no.4 and on 18.11.2003 when plaintiff was compelled to make another complaint to defendant no.4 as well as to higher authorities. As the work of cellular tower is still in progress, cause of action as well in subsistence.
9. A prayer is made before the court to pass a decree of permanent injunction in favour of plaintiff and against defendant no. 1 to 3 thereby restraining defendant no. 1 to 3, their agents, servants, attornies etc. from raising any illegal and unauthorised construction for fixing cellular tower and generator on the property in question.
10. it is also asked for passing a decree of mandatory injunction in favour of plaintiff and against defendant no. 4 and 5 thereby directing defendant no. 4 to demolish or remove the cellular tower fixed by Suit No. 118/10 Kanta Vs Meena Sharma 5/22 defendant no. 1 to 3 from premises No. L-225, shastri Nagar, Delhi alongwith cost of the suit.
11. Joint written statement on behalf of defendant no. 1 and 2 has been filed taking preliminary objection that the present suit for injunction filed by plaintiffs is also barred under Section 10 CPC as already filed number of suits for injunction, claiming almost the same relief before the other courts of law. It is stated that plaintiff has concealed the material facts from the court of pendency of previous litigation in between the parties pertaining to the same subject matter and on account of which concealment of facts and further the plaintiffs have falsely stated that they are residing at property no. L-224, Shastir Nagar, Delhi ; whereas the matter of fact is that they are running a business of manufacturing of steel almirah and other furniture and using the same for commercial purposes without obtaining licence as required under Section 416 and 417 of DMC Act read with Schedule 11. It is further stated that manufacturing of steel almirahs and other furniture is being carried out by using electric power and gas which has not only cause nuisance in the area but also caused damage to the adjacent property no. L-225, Shastri Nagar, Delhi owned by defendant no. 1 and 2.
12. It is stated that plaintiffs have also been prosecuted for running the said unlawful, illegal, unauthorised factory in the residential premises. The plaintiffs are thus concealing the material facts from the court.
13. It is further stated that plaintiff has filed the present suit to harass the defendants knowing fully that they have no cause of action Suit No. 118/10 Kanta Vs Meena Sharma 6/22 because the installation of antenna at the top roof of the property would not cause any inconvenience to the plaintiffs. Even otherwise the antenna has already been installed before the institution of the suit. It is further stated that prior to filing of the suit, one Sh. Jageshwar Parshad was in occupation of property no. L-226, Shastri Nagar, Delhi, who had filed similar suit at the instance of plaintiffs, vide suit no. 367/03 and the court declined to given any interim relief in the said suit to the plaintiff. It is stated that the similar suit was also declined by two other courts as stated in para 4 of WS. Now, the plaintiff has filed the present suit with same relief. It is further stated that there are number of litigations pending between the parties and all such litigations are clubbed together and are pending in the court of Sh. Raj Kumar, Ld. Civil Judge, Delhi. It is stated that the suit is not properly valued for the purposes of court fee and jurisdiction and is liable to be rejected. It is also stated that the present suit has been filed in the representative capacity of the plaintiff and the same can not be entertained by the court in compliance of Order 1 Rule 8 of CPC.
14. In para wise reply, it is submitted that it is wrong and denied that property no. L-224, Shastri, Nagar, Delhi is being used for commercial purposes by the defendant and the factory of manufacturing of steel almirah is being run by the plaintiff with the use of power supply and gas. It is also evident from advertisement given in the newspaper. The said factory is being run without any legal license by competent authority. It is stated that plaintiffs are not guilty of concealment of material facts but also misusing the property and violating the law. It is stated to be wrong and denied that defendants are running a factory of manufacturing of motor of heavy generator set etc. in the premises no. L-225, Shastri Nagar, without obtaining the licence from the concerned Suit No. 118/10 Kanta Vs Meena Sharma 7/22 authority. It is also stated in this regard that defendants have got more than one licence for running the factory at another premises No. L-229 and no business is being carried out in premises no. L-229, Shastri Nagar, Delhi. It is also stated that it is wrong and incorrect to state that at the time of purchasing the property no. L-225, Shastri Nagar, Delhi, it was only a single storey house and was in existence in the same condition as it exists today except the answering defendants have renovated the same to make it habitable, for which no permission was required from MCD. It is also incorrect that no illegal and unauthorised construction have been raised by the defendants in the property. It is stated that due to malafide intention, plaintiff has filed various litigations seeking demolition of said property but after the order of the Hon'ble High Court, MCD has not taken any action contrary to the law and apart from that defendant no. 1 and 2 have already applied for regularisation of unauthorized structure, if any, with defendant no.3.
15. Content of para 5 and 6 are not denied and are stated to be matter of record. However, it is submitted that the admission of the plaintiff itself shows that he has hardened litigants and in continuation of their unlawful and unauthorised action of malacious prosecution, has filed several litigations against defendant no. 1 and 2.
16. It is stated to be wrong and incorrect that defendant no.1 and 2 in collusion with MCD raised any unauthorised construction of room on 5th floor of property. It is further stated that the plea of defendant is vague as there is no mention in the property. However, a cellular tower has already been installed for which an agreement was arrived and such installation cannot be stopped at the instance of the plaintiff who has no locus standi. It is further stated that suit of the Suit No. 118/10 Kanta Vs Meena Sharma 8/22 plaintiff is without any cause of action.
17. It is stated that the alleged complaint made to the Commissioner, MCD was malafide and similarly subsequent complaints to the MCD or local police station, SDM etc. was not adhere to as the defendant has not violated any law.
18. It is incorrect to state that the cellular tower installed in the property would effect the health of the plaintiff or other neighbourers. It is further wrong and denied that the installation of cellular has not been completed. It is also submitted that content of para 10 and 11 are wrong and denied since no unauthorised construction, as falsely alleged, in property no. L-225, Shastri Nagar, Delhi.
19. All the allegations and averments made against defendant no. 1 and 2 are denied in toto and it is submitted that the plaintiff has misjoinder of parties as defendant no. 4 and 5 are not necessary parties and there is no cause of action in favour of the plaintiff and against any of the defendant. It is also submitted that court has no jurisdiction to try the matter and the suit is not properly valued for the purposes of court fee and jurisdiction.
20. A prayer is made to dismiss the suit of the plaintiff with cost since he is not entitled for the same.
Suit No. 118/10 Kanta Vs Meena Sharma 9/22
21. Written statement has also been filed on behalf of defendant no. 4.
22. Preliminary objections has been taken by the MCD stating that the suit is barred u/s. 477/478 of the DMC Act for the want of notice upon the defendant. It is further submitted that the suit filed by the plaintiff is without any cause of action against defendant MCD, since the MCD has already initiated action with respect to unauthorized construction carried out at the suit property.
23 It is submitted that the MCD booked the property no. L 225, Shastri Nagar Delhi vide file no. 156 /B /UC/CLZ /99 dated 01.09.99 and file number 122/B/UC/CLZ/99 dated 16.07.99 and further file no. 180/B/UC/CLZ/2003 dated 24.11.2003 in respect of the property in dispute and u/s. 343/344 of the DMC Act.
24. It is submitted that suit filed by the plaintiff is defective and suffer with many legal as well as technical defects. It is also stated that a similar suit is pending in another court of law.
25. In reply on mertis, it is submitted that the billing department of MCD has already initialted action u/s 343/344 of DMC Act. Hence, the avements of the plaintiff in this respect are not correct whereas the contents of para 5 and 6 are admitted by the defendant.
26. It is further submtited that in reply to para 7, it is submitted that the defendant MCD has not given any persmission to erccet, a cellular Tower at the suit premises. It is also stated that the defendant MCD has intitated action against celllular tower also.
Suit No. 118/10 Kanta Vs Meena Sharma 10/22
27. All the avements and allegations are denied in toto by the MCD and it is prayed befoer the court that suit of plaintiff against MCD be dismissed with cost.
28. Written statement has also been filed on behalf of defendant no. 5 Delhi pollution Control Committee.
29. The defendant no. 5 has taken preliminary objection that the suit filed by the plaintiff is not mainable as much as u/s. 43 of the Air ( prevention and control of Pollution ) Act 1981, and it is also stated that the jurisdiction of the Civil Court is barred under the said provision.
30. It is further submitted that the suit filed by the plaintiff is not maintiable u/s. 41 (h) specific Relief Act. It is further submitted that suit is not maintable as the plaintiff has not complied with the provisions of section 26 sub clause 4 CPC.
31. It is also stated that plaintiff has no cause of action against defendant no. 5 and no relief has been claimed against defendant no.
5. It is stated that suit of plaintiff is liable to be rejected u/o. 7 Rule 11 for the said reason.
32. Preliminary objection is also taken to the effect that the provisions of section 80 of CPC has not complied with by plaintiff.
33. In reply on merits, it is submitted that the contents of para 1 and 2 of the suit are denied by the defendant for the want of knowledge whereas the contents of para 3 and 5 are admitted. It is further submitted that after receiving the copy of the plaint, the officials of Suit No. 118/10 Kanta Vs Meena Sharma 11/22 defendant no. 5 inspected the suit premiss on 15.01.2004 and found that M/s Reliance Inforcom has installed mobile anteena at the top floor with the generator set of 30 KVA with acoustic enclosure with intention to provide cellular services, but the same was yet to be commissioned. It is fruther found that M/s. Reliance Inforcom had not taken any mandatory consent under the Air ( prevention and control of Pollution ) Act from defendant No. 5 and has planned to operate cellular service in residential area. A show cause notice u/s. 31 (A) of the Air ( prevention and control of Pollution ) Act was issued to M/s Reliance Inforcom on 20.02.2004. that is why the operation of DG Set may not been enclosed with immediate effect. It is also stated that the notice has returned unserved .
34. It is also stated that contents of para 8 and 9 are wrong and denied. It is further stated that defendant no. 5 has failed to take any action as per law, since they has initiated proceedings u/s. 31 (A) of the Air Act.
35. It is further denied that the defendant no. 5 has been approached by defendant no. 1 and 2 for any sort of influence. The contents of para 12 and 13 are also denied.
36. A prayer has been made before the court to dismised the suit of the plaintiff qua the defendant no. 5.
37. The replication to the written statemtn filed on behalf of defenant no. 1 and 2 , defenant no. 4 and defendant no. 5 has been filed by the plaintiff whereby the averments of the WS has been denied in toto and the content of plaint has been reaffirmed and reiterated by the plaintiff.
Suit No. 118/10 Kanta Vs Meena Sharma 12/22
38. Vide order dated 15.12.2004 issued were framed by my Ld. Predecessor .
1 Whether the plaintiff is entitled for a decree of mandatory injuction for removal of the cellular tower affixed by the defendants no. 1-3 as prayed for ? OPP 2 Whether the suit is barred under section 10 of CPC ? OPD 3 Whether the plaintiff has not approached to this court with clean hands? OIPD 4 Whether the suit has not been properly valued for the purpose of court fee and jurisdiction?OPD 5 Whether the suit is hit by order 1 Rule 8 CPC and as such not maintainable ? OPD 6 Whether the suit is barred u/s. 477/478 of the DMC Act?
OPD 7 Whether the suit is not maintainable in view of section 43 of the Air ( Prevention and Control of Pollution ) Act, 1981? OPD 8 Whether the suit is bad for non compliance of provisions of section 26 (2) and section 80 of the CPC ? OPD 9 Whether the suit is not maintainable u/s. 41 (h) of the Specific Relief Act? OPD 10 Whether the plaintiff is entitled to any relief , if so, what relief?
39 In support of its case plaintiff has examined PW 1 Sh. Ramesh Chand whereas the defendant no. 1 and 2 examined Sh. Dinesh Sharma as DW 1 and defendant no. 4 has also examined as DW 2 Sh. G S Yadav, Assistant Engineer Building, MCD.
40 PW 1 has tendered his affidavit in evidence along with the document Ex. PW 1/A. On cross examination by Ld counsel for defendant no. 4, PW 1 has deposed that he personally has given the notice to MCD before initiating the suit in 10th or 11th month of the year 2003. he admitted that mark A is the copy of the complaint and not the notice. He showed his ignorance about the appeal preferred by the occupants of the suit premises in the appellant tribunal of MCD. He Suit No. 118/10 Kanta Vs Meena Sharma 13/22 denied the suggestion of Ld. Counsel for defendant MCD that no notice was given to MCD and he has filed the present suit in order to harass the MCD.
41 On cross examination by Ld. Counsel for defendant no. 5, PW 1 admitted that he made a complaint before DPCC but he showed his ignorance about the visit of officials of DPCC to the premises to check whethere there was pollution or not, after his complaint and whether DPCC gave any notice u/s. 31 A to defendant no. 3. He denied the suggestion that DPCC is in collusion with defendant no. 1 and 3.
42 On cross examination by Ld. Counsel for defendant no. 1 and 2, PW 1 deposed that he along with Kanta has filed three cases against defendant no. 1 and 2. He admitted that in other suits he has alleged that defenant no. 1 has raised unauthorized constructions in L-225. He further admitted that in the suit pending in the court of Sh. A S Yadav, he sought compensation of Rs. 4 lacs for causing damages to his property by defendant no. 1. it is stated during the course of cross examination that the PW 1 has not mentioned in his plaint about the dismissal of the suit because at the time when the present suit was instituted no such order was passed by the court. It is denied by the witness that the corporation did not pay any heed to his complaint in this fact of unauthorized construction at there was no unauthroized construction raised by defendant no. 1. PW 1 express his unawarness to the fact that the MCD has not taken any action in pursuant to some order of the Hon'ble High court. He claimed that suit has been filed because an anteena has been put on the roof of the defendant no. 1 's property . He denied the suggestion that on his behest , his neighbour has filed a suit for compenstion on the same grounds against defendant no. 1. he also express his unwarness as to the proceedings in the said Suit No. 118/10 Kanta Vs Meena Sharma 14/22 suit. He admitted that the house number of the said neighbourer namely sh Joginder is 226 and his house number is 224 and the house no of defendant no. 1 and 2 is 225. He denied the suggestion that since no injunction was granted in the case filed by Joginder , plaintiff filed the present suit to obtain the same. He denied that the anteena was installed before the filing of the suit by him. He also admitted that the tower is to be demolised vide file 180/B/UC/CLZ/2003.
43 He also denied that the MCD made policy in 2002 regarding installation of cellular towers in the buildings. He also admitted that a tower was installed at the roof of Sh Dinesh. He admitted that the house no. 229 belongs to defendant no. 1 and 2. He denied the suggest that no factory is running on the said premises.
44 The witness was further recalled for creoss esamination by Ld. Defendant no. 1 and 2. the witness has denied the suggestion that he had no knowlege about the factory of Sh Dinesh Shama at Maya Puri. He admitted that his mother filed the suit against defendant no. 1 and 2 regarding the damages caused by the illegal factory run by defendant no. 1 and 2 and the said suit was dismissed by the court of law. However, it is stated that an appeal is pending in respect of the that order. He also admitted that the suit is pertains to the illegal cellular tower and generator. It is stated that the MCD, defendant no. 4 had not granted any permission for installation of cellular tower and generator . He also admitted that his neighbours have not lodged any complaint regarding installation of cellurrarl tower and generator with MCD. He also claimed to have made a complaint in the month of October- November 2003 regarding the nsallation tower when the work of installation was in process. He also submitted that it took about 1 ½ Suit No. 118/10 Kanta Vs Meena Sharma 15/22 month to install the tower after making his complaints.
45 DW 1 Sh Dinesh Sharma was examined and during the course of his cross examination, he stated tha property bearing no. L-225, Shastri Nagar, Delhi comprised Ground floor, first floor, second floor and third floor. It is also admitted that there is only room constriucted on the roof of property bearing no. L- 225, Shastri Nagar , Delhi . It is stated that tower of cellular is on the roof of the room situated on the third floor of the property mentioned above. DW 1 claimed that no construction was made by him for fixing the tower. He claimed to have not seen whether the cellular tower was fixed on the pillar constructed on the roof of the room of third floor. However, it has been admitted that he has visited the property in question about a week ago. He denied the suggestion that the pillars of the roof of the room on the thrid floor was constructed by him and further that the has seen the pillars and purposely deposing falsely. DW 1 later on admitted that the cellular tower was fixed on his property in the month of January, 2005. however, he cannot confirm the exact date. He admitted that he along with his wife are the joint owners of the property bearing no. L- 225 Shastri Nagar. He also admitted that the property was constructed on the land measuring 200 sq yards. He claimed that at the time of purchase of the property in question all the floors were in existence. He denied that no site plan was attached along with the sale deed by which he purchase the property in question by the earlier vendor. It is stated that on the ground floor of this property only a room and a toilet is constructed. On the first floor of the prorpety two rooms are there along with the toilet and on the second and third floor similar accommodation is in existence. It is claimed that there is no lift in the property in question. He denied the suggestion that no lift is installed in Suit No. 118/10 Kanta Vs Meena Sharma 16/22 the property in question. The witness in his testimony admitted to have engaged in the business of alternator from property no. L- 225 , Shastri Nagar which is the property admeasuring 100 sq yards.
46 The witness was further recalled for further cross examination on 23.09.2011 where he deposed on oath that he has not brought the sale deed of property no. L 225, Shastri Nagar, Delhi nor the photocopy of the same has been placed. He denied the suggestion that he purposely avoiding to place the same on record since, the site plan is enclosed with the sale deed. He claimed that no site plan in the area of Shastri Nagar is required. He admitted that the shastri nagar area falls under the jurisdiction of MCD . He has further admitted that he has not taken any building stability certificate prior to the fixing of cellular tower from the concerned authority. He claimed that the cellular tower was installed by defendant no. 3. He also admitted to have not taken any NOC from residence welfare association, nor have taken any clearance from the pollution board and MCD. He improved upon his earlier testimony and stated that MCD permission was obtained by defendant no. 3 but he express his enability to produce the said permission so taken.
47 He admitted that the cellular tower is installed at the top of the building at the site which is mark A 1 as shown in Ex. DW 1/X . HE also admitted that suit for the damanges filed by him against the present defendantn has been dismissed . The witness cannot confirm the date of installation of the cellular tower and its completion. He denied that any commercial activity is going on in L- 225 Shasti Nagar , Delhi. He also denied that there is any unauthorized constrution in L 3225. He admits that MCD has already demollised unauthorized construction Suit No. 118/10 Kanta Vs Meena Sharma 17/22 over his property. The witness cannot confirm wehther the MCD has sealed the cellular tower or he has broken the seal and consequently any case was registered against him. He also denied that due to the rays emitted by the cellular tower , the father of the plaintiff no. 2 wa s effected and fallen ill . The cellular tower is liable to be removed.
48 DW 2 Sh G S Yadav, Asst. Engineer Building, was examined by the counsel for the plaintiff. He deposed that permission of MCD is required for the installation of cellular tower. He also admitted that defendant no. 1 to 3 has not taken any permission to install the cellular tower. He proves the complaint dt. 28.10.2003 as per the record where by it is revealed that unauthorized construction in the shape of erection of cellular tower and steel structure was booked by the department for unauthorized construction. He also deposed that due to the shortage of time or diversion of force to other premises, no action could be taken. He admitted that action was taken on 12.06.2002, 11.09.2002 and 10.12.2009. As per record the action taken on 10.12.2009 where by the roof of 4th floor and wall were demolished. As per the record the cellular tower was still in existence and that has not been removed by the MCD.
My issuewise finding is as under :
For the sake of convenience, issue no. 6, 7 and 8 would be decided first.
6. Whether the suit is barred U/s 447/476 of DMC Act? OPD
7. Whether the suit is not maintainable in the view of section 43 of the Air (Prevention and Control of Pollution) Act, 1981 ? OPD
8. Whether the suit is bad for non compliance of provisions of section 26 (2) and section 80 of CPC? OPD
49. Needless to say that the onus to prove the above said issues were cast on the defendant, however, material available on record Suit No. 118/10 Kanta Vs Meena Sharma 18/22 reflects that the MCD was aware of the illegal constructions raised at the suit premises by the defendant, and even the same was booked by the MCD for demolition. More over the present suit filed by the plaintiff is in respect of the permanent and mandatory injunction.
"Clause 3 of Section 447 of DMC Act clearly provides that nothing in sub-section (1) shall be deemed to apply to a suit in which the only relief claimed is an injunction of which the object would be defeated by the giving of the notice or the postponement of the institution of the suit."
50 Moreover the plaintiff has complained several time to the MCD concerned of taking appropriate action against the defendants for raising unauthorized construction at the suit premises which were in the clear contravention to the norms of building by laws and policy.
51 As far as the objection raised in respect of section 46 AIR act is concerned, the defendant no. 5 has not given any suggestion to the witness in respect of the notice under section 80 of the CPC. More over the present suit was filed along an application U/s 80 sub clause 2 seeking exemption from giving the statutory notice to the above said authorities stating that the matter is of urgent nature and if the plaintiff waits for the expiry of the notice period the suit of the plaintiff would become infructuous. The court has allowed the application which is a matter of record.
For the reasons above stated, issue no. 6 , 7 and 8 are decided against the defendant and in favour of the plaintiff. Issue no. 2, 3 and 4 :
2. Whether the suit is barred under section 10 of the CPC?
OPD
3. Whether the plaintiff has not approached to this court with clean hands ? OPD
4. Whether the suit has not been properly valued for the purpose of court fees and jurisdiction? OPD Suit No. 118/10 Kanta Vs Meena Sharma 19/22 52 During the cross examination, the plaintiff / PW-1 and the defendant both had admitted to the fact that there are multiple litigation pending between the parties. However, the material available on record reflects that the suit filed by the plaintiff against the present defendant was of different nature than the present one. Since one suit pertains to recovery / damages filed by the mother of the plaintiff no. 2 and the other suit filed by the plaintiff that relates to the unauthorised construction raised on the first and second floor of the suit property.
The cause of action reflected in all the suit are different and similarly no bar is in existance as stipulated under section 10 of CPC.
53 It is claimed by the defendant that plaintiff has not approached the court with the clean hands, as he himself engaged in the commercial activites from his residence without taking any necessary license from the competent authority.
54 It is deposed on oath by the plaintiff that he is not engaged any commercial activities from his residence. No independent witness in support of his claim has been bring forth by the defendant. Neither any cogent documentary evidence to support and prove the same was brought on record. In absence of this, the averment made by the defendant are nothing more than the bald assertion.
55 The issue no. 4 was framed in respect of the the proper valuation, court fee and jurisdiction of the Court. No suggestion in respect of the above said objection raised by the defendant was given to the plaintiff. The valuation and the court fee was not challanged during the entire testimony, however, the objections taken on the point of jurisdiction already settled by deliberations in previous issues. For the reasons Suit No. 118/10 Kanta Vs Meena Sharma 20/22 above stated issues are decided in favour of the plaintiff and against the defendant.
Issue no. 5 and 9 :
5. Whether the suit is hit by order 1 rule 8 CPC and as such not maintainable? OPD
9. Whether the suit is not maintainable under section 41
(h) of the Specific Relief Act ? OPD
56. Issue no. 5 was framed to the effect that the suit is hit by order 1 rule 8 CPC and as such the suit itself is not maintainable. The onus to prove these issues was cast on the defendant. Not a single suggestion in respect of the above said objections was put to PW-1 during his entire cross examination, what to say of a direct question. It is established principle of law that he who assert, must prove the same. The defendant meserably failed to prove the above said issues and since no evidence was led on these aspects. For the reasons above stated issues are decided in favour of the plaintiff and against the defendant.
Issue No. 1 :
1. Whether the plaintiff is entitled for a decree of mandatory injunction for removal of the cellular tower fixed by the defendants no. 1-3 as prayed for ? OPP
57. The present suit is filed by the plaintiff seeking a decree of mandatory injunction for the removal of cellular tower affixed by the defendant no. 1 to 3. From the deliberations in the previous issues it is established that plaintiff has raised unauthorised construction which was even booked by MCD for demolishing the same. The testimony of DW-2 Shri G.S. Yadav, Asstt. Engineer Building clearly reflects that no commission was taken by the MCD for installation of the cellular tower by the MCD. It is also deposed that as per the official record authorized Suit No. 118/10 Kanta Vs Meena Sharma 21/22 construction in the shape of errection of cellular tower, steel structure was booked by the department for unauthorized construction dated 24.11.2003 vide file no. 180/B/UC/ CLZ/2003. It is also stated on oath that either due to shortage of time or diversion of forces to the other premises the action against the abovesaid illegal construction could not be taken. He further depose that as per the official record, the demolition action was taken on 10.12.2009 whereby roof at the 4th floor was demolished but the cellular tower is still in existence and that has not been removed by the MCD.
58. Nothing more is required on the part of the plaintiff to prove that he is entitled to the relief sought, permanent and mandatory injunction. For the reasons above stated issues are decided in favour of the plaintiff and against the defendant.
Relief :
59. The suit of the plaintiff is decreed against the defendants. Since it is established that the plaintiff has been successful in proving his case against the defendants. Consequnetly, he is entitled for the decree of permanent injunction in his favour and against defendant no. 1 to 3 whereby restraining their agents, servant attornies etc from raising any illegal and unauthorized construction for fixing cellular tower and generators on the suit property i.e. 225, Shastri Nagar, Delhi.
60. The plaintiff is also entitled for decree of mandatory injunction whereby defendant no. 4 and 5 are directed to demolish and remove the cellular tower fixed by defendant no. 1 to 3 from the suit property as mentioned above as reflected in site plan PW1/1.
Decree sheet be prepared accordingly.
Suit No. 118/10 Kanta Vs Meena Sharma 22/22 File be consigned to Record Room after due compliance.
Announced in Open Court (KADAMBARI AWASTHI)
today i.e. 31st January 2014 Civil Judge-02/Central
Tis Hazari Courts : Delhi
Suit No. 118/10 Kanta Vs Meena Sharma 23/22
16.01.2014
Present : None.
No order can be passed as regular stenographer is on leave.
Come up for orders on 31.01.2014.
(KADAMBARI AWASTHI )
Civil Judge-02/Central/Delhi
16.01.2014
Suit No. 118/10 Kanta Vs Meena Sharma 24/22
31.01.2014
Present : None.
Vide separate judgement announced in the open court today, the suit of the plaintiff is decreed against the defendants. Since it is established that the plaintiff has been successful in proving his case against the defendants. Consequnetly, he is entitled for the decree of permanent injunction in his favour and against defendant no. 1 to 3 whereby restraining their agents, servant attornies etc from raising any illegal and unauthorized construction for fixing cellular tower and generators on the suit property i.e. 225, Shastri Nagar, Delhi.
The plaintiff is also entitled for decree of mandatory injunction whereby defendant no. 4 and 5 are directed to demolish and remove the cellular tower fixed by defendant no. 1 to 3 from the suit property as mentioned above as reflected in site plan PW1/1.
Decree sheet be prepared accordingly.
File be consigned to Record Room after due compliance.
(KADAMBARI AWASTHI )
Civil Judge-02/Central/Delhi
31.01.2014
Suit No. 118/10 Kanta Vs Meena Sharma 25/22