IN THE COURT OF SH. BHUPINDER SINGH
              SENIOR CIVIL JUDGE­CUM­RENT CONTROLLER
              NEW DELHI DISTRICT, PATIALA HOUSE COURTS
                              NEW DELHI
Suit No.57555/2016

In the matter of:
Vikas Kalkal
S/o Sh. Khajan Singh
R/o H. No.89, Street No.6D/4
K­Block Mahilpalpur Extension
New Delhi­37                            ..........Plaintiff.
                        VS.

1. Government of NCT, Delhi
Through its Chief Secretary
Inderprast, Delhi Sachivalya
IP Estate, New Delhi                    (deleted from the array of parties
                                        vide order dt. 23.05.2015))

2. South Delhi Municipal Corporation
Through its Commissioner
Shayama Prasad Mukharjee Civic Centre
Din Dayal Upadhaya Marg, New Delhi      (deleted from the array of parties
                                        vide order dt. 23.05.2015)

3. The Deputy Commissioner
South Delhi Municipal Corporation
Nazafgarh Zone, Over Head Tank
Tilak Nagar Road, Nazafgarh, Delhi      (deleted from the array of parties)
                                        vide order dt. 23.05.2015)
4. The Assistant Commissioner
South Delhi Municipal Corporation
Nazafgarh Zone, Dhasa Bus Stand
Nazafgarh, New Delhi                    (deleted from the array of parties)
                                        vide order dt. 23.05.2015)
5. The Deputy Commissioner
Department of Revenue
South West District
Kapashera, New Delhi                    (deleted from the array of parties)
                                        vide order dt. 23.05.2015)
6. SDM Department of Revenue
Vasant Vihar, New Delhi

                                                               Page 1 of 16
 7. BDO South West
Offices Complex
Nazafgarh, New Delhi

8. Delhi Jal Board, Varunalay
Jhandewalan, Karol Bagh, Delhi
Through its CEO

9. Delhi State Industrial and Infrastructure
Development Corporation
Through its Managing Director
419, Udyog Sadan, FIE
Patparganj Industrial Area, New Delhi­92

10. The Chief Engineer
Irrigation and Flood Department,
Government of NCT of Delhi
4th Floor, ISBT, Kasmiri Gate, Delhi                (deleted from the array of parties)
                                                    vide order dt. 23.05.2015)
11. Delhi Pollution Control Committee
ISBT, Kasmiri Gate, Delhi­06

                                                    .........Defendants.

Date of Institution       : 17.10.2014
Date of arguments         : 08.07.2019
Date of Judgment          : 03.09.2019

JUDGMENT

1. Vide this judgment, the present suit for permanent and mandatory injunction as well as damages has been disposed of. The plaintiff has filed the present suit with the following prayer:

" (a) Pass a decree for permanent and mandatory injunction thereby directing all the defendants to remove the illegal sewerage pipeline and;

(b) Pass a decree for permanent / mandatory injunction thereby directing all the defendants to take appropriate action to stop the effluence of illegal sewerage;

(c) Pass a decree of permanent or mandatory injunction thereby directing the defendants to remove the water logging into the Gram Sabha land and;

(d) Pass a decree of damages after making enquiry about the quantum of damages and thereby directs the defendants to make payment of damages Page 2 of 16 as adjudicated by the Court;

(e) Cost of the suit may also be awarded in favour of plaintiff and against the defendants.

2. The brief facts of the case are that plaintiff is the owner of a plot bearing part of khasra no.1229, situated at the revenue estate of village Malikpur kohi, abadi known as B Block Rangpuri Extension, New Delhi­11037. As per the plaint, there is a vacant piece of land, which belongs to gram sabha which is situated to the south side of the plot of the plaintiff. Site plan attached to the plaint describes illegal sewage as red color, green color describes the land of plaintiff and yellow color describes the gram sabha land. That in the year 2010; some property grabbers/ property dealers and local residents, in the active connivance with the delinquent government officials laid down a fully illegal sewer line without taking any permission of the governmental body. The outlet of the pipeline is on the gram sabha land and a constant source of environment hazard. Plaintiff had approached the Hon'ble High Court by writ petition bearing no. 5564/2010 which was disposed of by the order dated 14/09/201 with directions that MCD, flood control department, DSIDC and DPCC to take appropriate measures for controlling the discharge of untreated effluent in the open spaces. That due to water logging, there was demolition of the constructed room of the plaintiff where the meter was also situated.

Further, the plaintiff also requested the Hon'ble public grievance commission for redressal of his grievance about the stoppage of discharge of effluent through illegal sewer pipelines. There was also a restraint order dated 30.05.2011 for restraining the land grabbers from carrying the laying of illegal sewer pipelines he had directed the BDO (SW) being custodian of Gram Sabha Land and requested to take steps to stop the laying of illegal sewer line on the Gram Sabha Land. It is stated that Executive Engineer (SW II) , Delhi Jal Board informed that the sewer pipe line does not pertain to DJB and that the land owning authority i.e. MCD may be asked for necessary action. It is stated that the SDM, Vasant Vihar, on the basis of inspection carried out by him stated that the unauthorised sewer pipe line is vested in Gram Sabha Land. It is stated that BDO (SW) stated that the demarcation was carried out by TSM and he further assured that appropriate action for construction of boundary wall shall be taken and subsequently informed that the Gram Sabha land has been handed over to irrigation and flood control department and the wall will be erected by DSIIDC. It is stated that none of the aforesaid government Page 3 of 16 agencies/defendants took any action and as such the present suit was filed.

3. Summons were issued to defendant no.2, 7, 8 and 9 vide order dt. 17.10.2014 and WS was filed on behalf of defendant no.7, 8 and 9 while defence of defendant no.2 for non­filing of WS was struck off vide order dt. 16.04.2016. Vide order dt. 16.04.2015, summons were issued to defendant no. 6,10 and 11 as well. Defendants no.1 to 5 and defendant no. 10 were deleted from the array of parties vide order dt. 23.05.2015. WS was filed on behalf of defendant no.11 on 04.08.2015. An application u/o 1 rule 10 CPC r/w Section 151 CPC was filed on behalf of the plaintiff seeking impleadment of Gram Sabha and notice was issued vide order dt. 08.09.2015. Vide order dt. 20.07.2016 it was apprised that the Gram Sabha had already been dissolved and was ordered to be served through DDO, South West, Nazafgarh. The application u/o 1 rule 10 CPC moved for impleading Gram Sabha was disposed of as dismissed being not pressed. Defendant no.2 was proceeded exparte vide order dt. 10.08.2017.

4. Written statement filed on behalf of defendant no.1 i.e. Govt. of NCT of Delhi. Defendant no. 1 have strongly objected to their impleadment as a party. They have submitted that they have nothing to do with the matter in hand. Further, they submitted that illegal sewer pipeline was laid down by the residents of unauthorized colony; and the outlet was towards the vacant land which belongs to gram Sabha and therefore the remedial action needs to be taken by the gram Sabha which is being represented by defendant no

7. Further, they denied being the competent authority under the various provisions of Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013.

5. Written Statement filed on behalf of the defendant no. 7 i.e. BDO South West, Najafgarh, New Delhi wherein they have submitted that they are not the necessary party in the present case. Further, the defendant no.7 was not served prior notice under Section 99 of the Delhi Panchayati Raj Act. They have further submitted that suit of the plaintiff is vague as they have not mentioned any khasra number of Gaon Sabha land.

6. Written Statement filed on behalf of the defendant no.8 Delhi Jal Board Page 4 of 16 wherein they have submitted that suit is not maintainable against them since the property in question is not within their jurisdiction. Further, they submitted that pipeline does not belong to them and land owning agency should be asked to take necessary actions.

7. Written Statement filed on behalf of the defendant no. 9 i.e. DSIIDC wherein they have submitted that plaintiff has no cause of action against plaintiff them. They have submitted they have not approached the courts with clean hands. Further, DSIIDC has no jurisdiction to stop any illegal activity. They have further submitted that ownership of said colony lies with The Urban Development Govt of GNCTD and hence the action to remove the encroachment is under the jurisdiction of urban development department and revenue GNCTD.

8. Written Statement filed on behalf of the defendant no. 11 Delhi Pollution Control Board wherein defendant no.11 have taken the stand that plaintiff has not come with the clean hands. They have submitted that the plaintiff has deliberately not named the land grabbers. Also, the proper remedy for the plaintiff is to file a complaint before the designated court Ld. ACMM Central Tis Hazari Courts after fulfilling mandatory requirements prescribed under the Water Act, 1974 ; Air Act, 1981, The Environment Act, 1986. Therefore, the suit filed by the plaintiff is not maintainable by virtue of Section 41(h) of Specific Relief Act.

9. Vide order dt. 10.08.2017, after the completion of pleadings of the parties, following issues were framed­:

1. Whether the suit is bad for mis joinder and non­joinder of necessary parties? Opd 7 &11

2. Whether the suit is hit by Section, 41(h) of Specific Relief Act? OPD No. 11

3. Whether the plaintiff is entitled for a decree of permanent and mandatory injunction as prayed for in clause a, b, and c of prayer clause? OPP

4. whether the plaintiff is entitled for decree of damages as prayed for in clause (d) of prayer clause? OPP

5. Relief.

10. Thereafter, matter was fixed for PE wherein the plaintiff has examined four witnesses including himself. He was examined as PW1 whereby he tendered his evidence way of affidavit. He has relied upon the following documents:

(a) Copy of GPA as Mark A;

(b) Order dated 17.08.2019 passed in Civil writ petition no.5564/2010 as Ex.PW1/A;

(c) Copy of status report as Ex.PW1/B;

(d) Status report containing rough site plan as Ex.PW1/B1.

(e) Photograph annexed with the status report as Ex.PW1/C;

(f) Download copy of order dated 06.09.2010 and order dated 14.09.2010 as Mark C;

(g) The orders passed by PGC as Ex.PW1/D;

(h) Restraining order dated 30.05.2011 and letter issued by SDM as Ex.PW1/E;

(I) copy of complaints made to the SHO as Ex.PW1/F (colly);

(j) Copy of legal notice dated 05.08.2014 along with postal receipt dated 12.08.2014 as Ex.PW1/G (colly);

(k) Copy of reply of DPCC as Ex.PW1/H; and

(l) The download copy of the judgment dated 10.12.2015 as Ex.PW1/J.

In his cross­examination by ld. Counsel for defendant no.11 he deposed that the laying of the pipe line was started somewhere in July­August, 2010. He admitted that he lodged a complaint dt. 10.08.2010 to the SHO which he proved as Ex.PW1/D1. He denied the suggestion that he was not averse to laying down the said pipe line and volunteer to say that before laying down of the pipe line the people of the locality had come to him and promised that they will discharge the waste water away from his plot and the pipe line would be 2 feet below the ground. He deposed that he had no objection if that was so. He admitted that the laying of the pipe line was stopped by complaints to different authorities. He admitted that the complaints filed by his father and him as PW1/D2­D3. In his cross­examination by ld. Counsel for defendant no.8 he admitted that the colony is an Page 6 of 16 unregularised colony and that there is no sewerage system of Delhi Jal Board there. In this cross­examination by ld. Counsel for defendant no.9 he deposed that he has not made the party, the persons whom he had named in his complaints Ex.PW1/D1 to D3. He deposed that he did not know if the sewer line was laid down by the people who are named in the said complaints. He deposed that he did not know which of the Government agency invested the fund for said sewer line or that if the same was laid at the expenses of RWA. He admitted that none of the member of RWA or the persons named in the complaint have been impleaded as defendants. He deposed that wall of his house fell down due to the laying down of the sewer lines and therefore he get it repaired. He deposed that no certificate was obtained by him from structure engineer regarding the cause of falling down of the wall.

11. PW2 Sh. Khajan Singh tendered his evidence by way of affidavit Ex.PW2/1. In his cross­examination by ld. Counsel for defendant no.9 deposed that he has not brought the record regarding ownership of the property. He denied the suggestion that the structure of the building of the plaintiff was collapsed due to the open discharge of affluent/dirty water logged at the Gram Sabha Land. He deposed that he did not know who had laid down the sewer line in their colony. He admitted that none of the defendant had laid down the sewer line. In his cross­examination by ld. Counsel for defendant no.11 he deposed that he did not know when the structure built on the plot collapsed. He deposed that the plaintiff suffered loss of Rs. 2­2.5 lakhs.

12. PW3 Sh. Manjeet Singh, Kanoongo, SDM Office, Vasant Vihar, New Delhi in his testimony deposed that he has brought the summoned record i.e. restrained order dt. 30.05.2011 passed by the then Sub Division Magistrate, Vasant Vihar, New Delhi. Attested copy of the restrained order was proved by him as Ex.PW3/A. He was not cross­examined despite opportunity.

13. PW4 Surender Kumar Gaur, Record Clerk, Executive Engineer M­3, Nazafgarh Zone, SDMC, Secto­12, Dwarka, New Delhi deposed that he has brought the Page 7 of 16 list of work done in ward no. C­144, now renamed as Ward No. 50S in year 2014­15, 2016­17, 2017­18 & 2018­19 and same was proved as Mark PW4/A (colly). He was cross­ examined only on behalf of ld. Counsel for defendant no.7 Delhi Jal Board. Thereafter, PE was closed vide order dt. 04.08.2018 and matter was listed for DE.

14. In DE, defendants have examined Sh. S. K. Dahiya EE (SW), Delhi Jal Board on behalf of defendant no.8 as DW1 wherein he tendered his evidence by way of affidavit Ex.DW1/A. He was examined wherein he deposed that there is no water pipe line of Delhi Jal Board in Rangpuri Area, B Block and that the water is supplied through water tankers. Further that there is no sewage network in the said Rangpuri area and that the sewage management of this area is not looked after by them. He denied the suggestion that the sewage management of the area within their jurisdiction is looked after by them only. He volunteered to say that it is only in those cases where sewage network is laid out by DJB. He deposed that his department do not issue challans for illegal sewage disposal in the suit area. Thereafter, DE was closed on 14.01.2019.

15. After completion of evidence of both the parties, the case was adjourned for final arguments.

16. I have heard the contentions of Ld counsel for both the parties and perused the record file.

17. My issue wise findings are as under:

ISSUE NO 1:

Whether the suit is bad for mis joinder and non­joinder of necessary parties? OPD 7 &11 The onus to prove whether the suit is bad for misjoinder is on defendant no. 7 and 11. As per Order 1 rule 10 of the CPC, the court may at any stage of the suit order that the name of any part improperly joined whether as plaintiff or defendant be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or Page 8 of 16 defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.

Thus, a necessary party is one without whom no order can be made effectively; a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the questions involved in the proceedings. Coming to facts of the case, the plaintiff has sought for the directions that the said defendants be directed to remove the illegal sewerage pipeline and to take appropriate actions to stop the effluence of illegal sewerage. With further directions to remove the water logging into Gram Sabha land. As far as defendant no 7 is concerned they have not lead any evidence to the effect why the suit for the plaintiff is bad for misjoinder. Further, in their own submissions, they have admitted that they are the dealing agency for all the matters pertaining to Gaon Sabha. In addition, it was brought to the notice of the court that Gaon Sabha has been dissolved and is being represented by the BDO Najafgarh that is by defendant no 7.Moreover, the defendant no. 7 have submitted that " That plaintiff did not serve the notice under the mandatory provisions of section 99 of the Delhi Panchayat Raj Act. Section 99 of the Delhi Panchayat Act read as; "No suit or other legal proceedings shall be instituted against a Gaon Sabha or a Gaon Panchayat or a Circle Panchayat or against a member, Panch Officer, servant of the Gaon Panchayat or Circle Panchayat or against any person acting under its or his directions for anything done or purporting to have been done in any official capacity under the act, until the expiration of two months next after notice, in writing has been, in the case of a Gaon Sabha or Gaon Panchayat or Circle Panchayat, delivered in or left at the office of the Gaon Panchayat or Circle Panchayat and in the case or a member, Panch, Officer, servant or any person acting under this directions or the directions of the Gaon Panchayat or Circle Panchayat, delivered to him or left at his office or place of abode, explicitly stating the cause of action , the nature of the relief sought, the amount of compensation, if any claimed and the name and place of abode of the intending plaintiff and the plaint shall contain a statement that such notice has been so delivered or left.

18. The general provisions of Section 80 of code of Civil Procedure r/w section Page 9 of 16 99 of the Delhi Panchayat Raj Act, 1959 are only the procedural requirements. A common maxim that procedural laws are handmaids of justice. The suit cannot be dismissed only due to procedural lapses.

Further, the defendant no 11 have shrugged off its responsibility by submitting before the court that they are not competent authority in the present matter and the plaintiff has not approached the court in good faith. They have further submitted that plaintiff has malafidely not named the names of land grabbers. Even if court takes into account that plaintiff has not named the land grabbers, it does not discharge the burden of the defendants. The court cannot ignore the fact that the outlet of the illegal sewer pipeline is towards the land of Gaon Sabha, which has become a source of environment hazard. Further, the stand taken by the defendant no 11 that the competent authority under the act the designated court Ld. ACMM (Spl. Acts)/ Central, Tis Hazari Courts after fulfilling mandatory requirement prescribed under The Water (Prevention and Control of Pollution) Act, 194 and other allied acts.

It would be in interest of justice to have a quick glance over relevant provisions of the Water Prevention and Control of Pollution Act, 1974.

19. Section 2(g) of the act defines sewage effluent as means affluent from any sewage system or sewage disposal works and includes spillage from open drains. Section 2(dd) defines outlets includes any conduit pipe or channel, open or closed carrying sewage or trade effluent or any other holding arrangements which causes or is likely to cause, pollution;

Further, Section 58 which deals with bar of jurisdiction mandates that no civil court shall have jurisdiction to entertain any suit or proceedings in respect of any matter which an appellate court constituted any this act is empowered by or under this act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act. Undoubtedly Section 58 has mentioned bars the jurisdiction of the court. However, the jurisdiction is barred only with respect to those matters, which the appellate authority is empowered to deal with. Under Section 58, it has been provided when a person is Page 10 of 16 aggrieved by an order of the board, then that person can appeal to the appellate authority within 30 days from the order passed by the court. In the present case, there is no order whose validity is disputed by him. In these circumstances, in the opinion of the court Section 58 does not apply.

Hence, the suit is not bad for misjoinder of the parties. Hence, defendant no 7 and 11 are a necessary party in order to deal with the matter effectively. As such this issue is decided against defendants no.7 and 11 and in favour of the plaintiff.

ISSUE NO 2:

Whether equally efficacious remedy is available under section 41(h) of Specific Relief Act, 1963? OPD No.11

20. The onus of proving this issue was on defendant no 11. In the written statement, it has been submitted that the plaintiff had an equal and efficacious remedy available for himself in the form of filing a complaint under section various provision of Water Act, Air Pollution Act etc. It is a matter of record that before knocking the doors of this court, the plaintiff has approached various forum in order to avail the relief sought for in this present case. The plaintiff had filed a writ petition bearing no 5564/2010 before the Hon'ble High Court Of Delhi, which was disposed on 14/09/2010. The plaintiff had also filed grievances before the Hon'ble Public Grievances Commission, ITO, Delhi; wherein the number of the orders were passed and the same were collectively exhibited as PW1/G (colly). It is again a matter of record that the plaintiff had also approached before the Hon'ble NGT for redressals of his grievances disclosing the pendency of the present case. The case was however not admitted being barred by limitation of NGT Act, 2010. The copy of judgment dated 10.12.2015 is exhibited as Exhibit PW1/ M.

The issue is therefore decided in favour of plaintiff and against defendant no.11.

ISSUE NO 3:

Whether the plaintiff is entitled to relief of permanent and mandatory injunction? OPP

21. The plaintiff stated in evidence by affidavit exhibited as Ex.PW1/1 that he is the owner of plot bearing part of khasra no. 1229, situated at the revenue estate of village, Malikpur Kohli, Abadi known as B Block Rangpuri Extension, New Delhi­110037. However, it is interesting to note that the plaintiff has not produced any documents to prove his ownership with regard to the said land. Further, the plaintiff has only brought before the court copy of the GPA which is marked as Mark "A". Further, the plaintiff got examined Mr. Khajan Singh; as PW2. In his cross­examination, PW2 admitted that he has not brought any documents to prove his ownership. Thus, it remains clear that the plaintiff has not brought any documents to prove his ownership all along. Further, the stand taken by defendants all along have been that the plaintiff has not come to this court with clean hands. It was submitted by the defendants in the present case, that the plaintiff has been living in the unregularized colony, which is admitted by the plaintiff in his cross­ examination by defendant no 8 as well.

22. Further, it has also come to the court attention that the plaintiff was initially a party to laying down of illegal sewer line. The plaintiff had admitted in his cross­ examination by the Defendants no. 11 that he was not aware to laying down of said pipeline. He had admitted in his cross examination that couple of people had approached him regarding laying down of the pipeline and he was promised that they will discharge the waste water away from the plot of the plaintiff and the said pipeline would be two feet below the ground. However, when the water was discharged on plaintiff land contrary to as promised to him, he got alarmed and initiated actions against various government agencies left right and center. It intrigues the court till today, as why plaintiff did not initiate actions against people who acted contrary to their promise and instead moved against government agencies who had no iota of happenings. The plaintiff in his cross­ examination has submitted that sewer lines were laid down by govt funds. However, no prove to that effect has been brought to courts notice. Various courts have been strict in Page 12 of 16 granting injunction, which has the effect of permitting illegal of occupation of public land. In this regard, the case of Rajinder Kakkar Vs. DDA 1994 (1) AD (Delhi) 432 is relevant, wherein, it was held: "where a person is an encroacher and never had any right to legal possession of public land, the courts should not grant any injunctions or relief which will have the result of permitting or protecting the continued illegal occupation of public land.

Thus, significant question, which arises in the present case, is that whether the injunction can be granted in favour of person who has occupied public land without prior permission.

23. The housing problem can be considered to be universal since, to date, no country has yet managed to completely meet his basic human needs. Adequate housing serves the crucible for human well being and development, bringing together elements related to ecology, sustained and sustainable development. It serves as the basic unit of human settlements and as an indicator of the duality of a city. Unfortunately, in spite of its importance, there exists and enormous deficit through out the world.

It would not be out of place to traverse though some of the international concerns over the world housing situations.

National General Assembly in 1948 made explicit reference to housing as a fundamental human rights. Article 25(1) states : "everyone has the right to a standard of living adequate for the health and well being of himself and his family, including food, clothing, housing and medical care, necessary social services.

Further, Article 11 of the international covenant on economic, social, and cultural rights expanded on Article 25(1) of the universal direction read as, " the state parties to the present covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing and to the continuous improvement of living conditions".

In 1987, the International year of shelter for the homeless, the United Nations spoke of the right of all individuals to: "a real home is one which provided protection from the elements, has access to safe water, sanitation, provided for secure tenure and personal safety".

Right to shelter is considered a fundamental right to life. Food, shelter and clothing are basic human needs. In Olga Tellis Vs Municipal Corporation of Greater Bombay, PG Gupta and State of Gujarat; it was emphasized that problem of homeless people is globally recognized. Absence of sufficient and cost effective housing has led to surge in needs of slums, jhuggis and un­regularized colonies. At the same time, public property cannot be allowed to encroach and concerned authorities have to ensure constant vigilance on encroachment. However, once encroachment is allowed, they cannot be easily evicted without giving them an alternative accommodation.

In Chameli Singh Vs State of UP, Apex Court observed that right to shelter is encompassed within article 21 of the Constitution of India. Further, the court observed that right to live in a civilized society implies right to food, water, decent environment, education, medical care and shelter. Thus, civil, political and cultural rights enshrined in the Universal Declaration of Human Rights and Conventions or under the Constitution of India cannot be exercised without these basic human rights. Right to shelter, therefore includes adequate living space, safe and decent structure, clean and decent surroundings, sufficient light, pure air and water, electricity, sanitation and other civic amenities like roads etc. so as to have easy right to shelter .

24. However, the court is facing the dilemma that whether right to shelter which is encompassed within Article 21 of the Constitution of India can withstand the settled proposition of law that encroachers have no vested right in the public land and therefore claim no relief from the court. The court concede to the fact that outlet of illegal sewer is source of water pollution in the land of gram sabha and is a natural hazard to the residents of regularized colony. The current theme of this era is to protect safe and conserve the environment, however this court feels hesitant to grant any relief sought. The plaintiff has not approached the court with clean hands. He himself admitted in his cross­examination that before laying down of the pipe line the people of the locality had come to him and promised him that they will discharge the waste water away from his plot and that the pipe line would be 2 feet below the ground. Knowingly well, that the same is not the job of the RWA and necessary permission has to be taken from the concerned authority, he gave his no objection and complained only later on, allegedly on breach of their promise. To the Page 14 of 16 reasons best known to him, none of those persons who had approached him for taking his 'No Objection' and laid down the pipe lines were not made party to the suit. The Government agencies cannot be expected to oversee/maintain any structure/pipe lines which have not been laid down by them as laying down of the pipe line for sewerage or otherwise requires detailed planning and deliberations. It is not that public may be allowed to lay down the same as per their wish and desire, according to their plan/design and then shift the burden of their maintenance etc. to the public agencies.

25. As the plaintiff has not been able to prove his ownership, the fact that his occupation of the property has not been authorised by the competent authorities, he himself was a party to the laying of sewer pipe lines, without any prior permission of any authorised agency, the issue is decided against the plaintiff and in favour of the defendants.

ISSUE No.4 Whether the plaintiff is entitled for decree of damages as prayed for in clause (d) of prayer clause? OPP

26. As observed above, plaintiff has not proved his ownership over the plot, whose wall has been alleged to have been broken due to the water logging. The extent of construction over the said plot has not been proved. No evidence has been led that the wall has indeed been broken/collapsed or the reasons thereof. No evidence has been led as to the cost of its reconstruction. PW2 in his cross­examination denied the suggestion that the structure of the building of the plaintiff collapsed due to the open discharge of the affluent/dirty water logged at the Gram Sabha Land. He also deposed that he did not know as to when the structure built on the plot collapsed. No photographs of the debris of the alleged collapsed wall has placed on record. The photographs so placed i.e. Ex.PW1/C which otherwise have been objected to by the ld. Counsel for the defendant no.9 does not show the status of the plot of the plaintiff or any of its wall having fallen down. As such, the plaintiff has failed to discharge the onus upon him. Accordingly, the issue is decided Page 15 of 16 against the plaintiff and in favour of the defendants.

RELIEF

27. In view of the above observations and discussions, the plaintiff has failed to prove that he is entitled to the permanent/mandatory injunction as prayed for. Accordingly, the suit is disposed of as dismissed. Decree Sheet be prepared accordingly.

However, at the same time the court is concerned about the rights of the plaintiff to live in a healthy environment and enjoy pollution free air. The court cannot ignore that each citizen of this country is entitled to some common law rights, which includes right to healthy environment. As such, the court deems it expedient to impress upon the defendant no.7 i.e. DDO South­West, defendant no.8 Delhi Jal Board and Defendant no.11/DPCC to assess the situation of the concerned area and take appropriate steps to ensure that there is no health hazard caused to the public at large in the vicinity of the area where such sewerage waste is being discharged.

Copy of this judgment be sent to aforesaid defendants.

File be consigned to record room.

Announced in the open court                             (Bhupinder Singh)
on dt. 03.09.2019                                Senior Civil Judge/Rent Controller,
                                                 New Delhi District, Patiala House Courts,
                                                          New Delhi




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