Final Order 6

Order Details: COPY OF ORDER
Pdf Text: CS SCJ 1443/23 RAGVINDAR V S VIKAS BHARDWAJ & ANRS
24.11.2023
Present : Ms. Shikha Sharma Ld. Proxy Counsel for plaintiff.
Arguments already heard at length on the maintainability of suit.
Put up for orders at 04:00 PM.
(Rakesh KumarII)
JSCC/ASCJ/Gudn. Judge
North, Rohini Courts, Delhi/24.11.2023
At 4.00 P.M.
Present : None for the plaintiff.
1. Brief facts of the case are that the plaintiff is a peaceloving citizen
having faith in the law of the land is permanent resident of the above address for the
last protracted period time. It is further averred that the defendant no. 1 has been
carrying out illegal and unlawful construction in the property/flat bearing No. I1/20
(FF), situated in Rohini, Delhi110089 hereinafter referred to as the 'Flat' with the
connivance and collusion of the defendant no. 2 and wherein the initial structure of
this Janta Flat has been entirely changed and unfortunately four floors have been
illegally and unlawfully built by the defendant no. 1 on top of the above flat in
connivance and collusion with defendant no, 2 by flouting and defying the prescribed
laws and rules.
It is further averred that although the property/Flat in question being a Janta
Flat, the owner/defendant no. 1 has, under the shelter, support and connivance of the
defendant no. 2, who has been purposefully dormant/lethargic to take any action
against the defendant no. 1, and the defendant no. 1, by encroaching public land and
also by putting pillars on the public land and encroached the public land and the
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illegal and unlawful construction has been carried out thereon. Notably, the flat in
question is three side corner flat and there being absolutely no support from any
adjoining properties, it has been reduced to a very dangerous state by carrying out
unscrupulous and illegal construction. In the event of any earth quake or natural
calamity the flat has been transformed to a position through illegal construction
where it has immense load of illegal extra floors saddled on top of it and given the
fact that the ground floor construction has been raised by DDA keeping in view that
construction will not be carried out beyond first floor, this flat has quite hazardous
and may result in substantial loss of life and limb of surrounding people as this illegal
structure has now reached 5 floors to the defiance of all norms of law and rules. It is
further averred that in order to carry out the construction, the building plan etc. has to
be approved/sanctioned by the defendant no. 2 and there has been specific conditions
as per the initial lease agreements with the DDA that the construction/structural
changes etc. if any, have to be strictly in conformity and compliance with the rules
and byelaws prescribed in this behalf (though there is no deviation/structural
changes/construction etc permitted in this regard and any such activity is purely
illegal and obnoxious) but unfortunately the illegal construction as above has been
carried out/is still ongoing in regard to the above Flat under the nose of the
defendants no. 2 and sadly the defendant no. 2, instead of taking action as per the
provisions flaw is simply watching the same as silent spectator. In this regard, e
concerned Junior Engineers (Building & Works) of the defendant 0.2 have been
approached and apprised several times as regards the above illegal construction but
unfortunately the defendant no. 2 have miserably failed to take any preventive
measures and t force the law of the land and the corrupt malpractices/lethargy of th
Eendant no. 2 in initiating any legal action has given illegal and unlawful leeway to
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the land grabbers, encroachers and unscrupulous so called builders etc including the
defendant no. 1 herein.
It is further averred that encroaching public land and also raising illegal
construction by defying the rules of the law is not permissible as there has not been
any sanction or approval by the defendant no. 2 in this regardMoreover, in the
absence of sanction or approval the safety and security of the Flat in question and the
other flats in its near vicinity as well as on the top of it have also been compromised
and which has resulted in jeopardizing the life and limb of inhabitants in the area.
The plaintiff being a local resident living nearby the above flat, is also feeling quite
unsafe vulnerable and insecure due to such illegal actions of the defendants. That
several requests made to the officials of defendants no. 2 hay fallen on deaf ears and
even written complaints in this regard have al proved futile.
It is further averred that the plaintiff has approached the defendant no. 2
through various complaints, verbal and otherwise but the same had little impact onthe
officials of defendants no. 2 and that such a lethargic attitude on part of the
defendants no. 2 beyond any shadow shows its a FILE connivance with the defendant
no. 1. It is submitted that on 11th OCT 2023 purpose of making requestcomplaints
against the above against the above illegal activity, the plaintiff has many times made
verbal and other complaints but unfortunately no action has so far been initiated in
this regard by the defendant no. 2 and the unlawful act as above is thriving
dauntlessly, unfettered and undeterred. It is submitted that the defendants no. 2 has
absolutely no right to impliedly or expressly allow/promote and patronize any such
illegal construction and/or encroachment and any such actions on the part of the
defendants are anlawful, illegal, vexatious, unwarranted and hence obnoxious. As the
natter is also of imminent urgency whereupon the public land is being ncroached and
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safety and security of inhabitants has been ompromised due to illegal and unlawful
construction, request is being ade through this paragraph to exempt the service of
mandatory notice any to be served upon the defendant no. 2 who is a governmental
ody/organization.
It is further averred that the Honb'ble Apex Court has expressed its deep concer
out the menace of unauthorized construction in the country. Hon'bl pex court has
cautioned the authorities to ensure zero tolerance polic wards menace of unauthorized
construction Reliance is placed up pak Kumar Mukherjee Vs. Kolkata Mun.Corp.&
Ors, date ision: 8 October, 2012 in Civil Appeal No. 7356 of 2012 (Arising out of
SLP(C) No. 23780/2011) wherein Hon'ble Apex Court has held that: "In last four
decades, the menace of illegal and authorised constructions of buildings and other
structures in different parts of the country has acquired monstrous proportion. This
Court has repeatedly emphasized the importance of planned development of the cities
and either approved the orders passed by the High Court or itself gave directions for
demolition of illegal constructions." It is clear that the established principles of law
are being flouted and defied by the defendants which is highly unethical and
corruptly unlawful. It is submitted that there being no action initiated on the part of
the defendant no. 2 amounts to corruption. It is further averred that the Supreme
Court in the case of Union of India Vs. K.K.Dhawan AIR 993 SC 1478 has
mentioned the circumstances under which an inference an be drawn for initiating
prosecution for the offences under Clause (iii) of ec. 13(1)(d) of Prevention of
Corruption Act 1988. They are as follows:
(i) Where the Officer had acted in a manner as would not reflect on his tion for
integrity or good faith or devotion to duty.
(ii) It there is a prima facie material to show recklessness or misconduct in the
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discharge of his duty;
(iii) If he has acted in a manner which is unbecoming of a Government Servant.
(iv) If he had acted negligently or that he omitted the prescribed conditions which
are essential for the exercise of the statutory powers;
v) If he had acted in order to unduly favour a party; and
vi) If he had been actuated by a corrupt motive however small the bribe may
be. The Supreme Court further observed that they are not exhaustive and
only illustrative. In this connection, it can be further considered to make use
of thisClause (iii) in a wider sense whenever it is found that the evidence is
not sufficient to attract the offence under clause (1) and (ii) of Sec.13 (1)(d)
of P.C. Act 1988. Abuse has to be inferred from the following
circumstances:(a)
Absence of power; (b) Exceeding jurisdiction, (c) Irrelevant consideration;
(d) Leaving out relevant consideration, (e) Mixed consideration; (f)
Malafide; (g) Improper performance; (h) Colourable exercise of power; (i)
Nonobservance of natural justice, and (i) Unreasonableness." So it is clear
that there is the undisputed element of corruption evident in this matter.
It is further averred that the cause of action in regard to the above arose on
various dates at outlined above when the illegal construction/ encroachment in respect
of the above Flat was initiated. The cause of action further arose, when the plaintiff
approached the officials of defendant no. 2 and requested to stop the illegal
construction and encroachment and the cause of action is still continuing as the illegal
construction/ encroachment is still ongoing and there is no action against the
defendants and the illegal construction is being carried on in full swing withose mere
being any preventive lawful measures having been taken by the defendant no. 2. It is
further averred that the suit properties mentioned above are situated in Delhi and
within the territorial jurisdiction of this Hon'ble Court, the defendants as well as the
plaintiff also reside and work for gain in Delhi and the defendants also have their
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offices situated in Delhi and as such this Hon'ble Court has necessary jurisdiction to
entertain and try the present case.
It is, prayed by the plaintiff that:
(a) pass a decree of Permanent Injunction, in favour of the plaintiff and against the
defendants, thereby restraining the defendants, their servants, officials, attorneys, etc.
from allowing/carrying out any illegal construction and/or encroachment qua the
property/flat bearing No. 11/20 (FF), situated in Sector16, Rohini, Delhi110089
hereinafter referred to as the 'Flat' and shown in the photograph annexed as
AnnexureA, which is necessary in the interest of law and justice;
(b)pass a decree of mandatory injunction, in favour of the plaintiff and against the
defendants, thereby directing the defendants, their agents, servants, officials,
attorneys, etc. to demolish/remove the illegal constructions and encroachment as
outlined above having been carried out in the suit property/flat bearing No. 11/20
(FF), situated in Sector 16, Rohini, Delhi110089 hereinafter referred to as the 'Flat'
and shown in the photograph annexed as AnnexureA which necessary in the interest
of law and justice.
ANALYSIS AND FINDINGS.
4. Perusal of the plaint and the memo of parties reveals that property of
plaintiffs are not adjacent to the suit property. It is also clear from the material on
record that plaintiffs are neither the immediate neighbours nor their property is
adjoining to the suit property. It is clear from the plaint as well as the material on
record that the plaintiffs have no personal interest in the suit property as no personal
rights of the plaintiff have been infringed. Perusal of the averment in the plaint
nowhere shows infringement of personal right of plaintiffs. Perusal of plaint as well
as material on record does not show that any legal rights of plaintiffs have been
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effected by alleged construction. The plaintiffs have not mentioned that their property
or any of their legal right is going to be adversely effected by the alleged illegal
construction raised by the defendant no.2. Thus, the plaintiffs have no personal
interest in the suit property.
5. Since the plaintiff has no personal interest in the suit property, the
present suit is barred under the provisions of Section 41 (j) of the Specific Relief Act.
More over, the plaintiff has no cause of action to file the present suit as no right of
plaintiff has been infringed. The present suit has been filed without any locus. A
plaint without a cause of action and without locus is also liable to be rejected under
Order 7 Rule 11 CPC. Moreover, if any illegal construction is going on in the suit
property then certainly it will give cause of action in favour of Municipal Authority
as Municipal Authorities are duty bound to look into the issue of illegal construction,
however, it does not give cause of action in favour of plaintiff as no personal right of
the plaintiff have been infringed.
7. In the judgment titled as Rajinder Motwani vs. MCD RSA No.243/17
dated 16.10.2017, the Hon'ble Delhi High Court in para no. 8 held as under :
“an illegal construction in itself does not give any legal right to
a neighbour. An illegal construction always no doubt gives
locus standi to the local municipal authorities to seek removal
of the illegal construction, but a right of a neighbor only arises
if the legal rights of light and air or any other legal right is
affected by virtue of the illegal construction of the neighbor.
Legal right to light and air is only in terms of section 15 of the
Easement Act, 1882 which requires a cause of action to be laid
out and proved that right to light and air has been enjoyed for
20 years and only on completion of 20 years there is right to
acquisition by prescription in the easementary rights. It is
relevant to note that even after acquisition of easemenatry
rights of prescription, yet, right to injunction for a neighbor is
not absolute and is covered by Section 33 of the Easement Act
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which requires that disturbance to the easementary rights must
actually cause substantial damage to a neighbor and the infraction
materially diminishes the value of the dominant heritage with the
fact that there is material interference in the physical comfort of the
neighbor of living in his own house or prevents the neighbor from
carrying on his accustomed business in the dominant heritage/his
own house. All these are factual aspects and admittedly there is no
cause of action which is laid out in the plaint in terms of section 15
and 33 of the Easement Act that right to easement of the
appellants/plaintiffs has become absolute as it has been enjoyed for
20 years and that in fact after rights to easement are acquired by
prescription there is also a substantial damage to the
appellants/plaintiffs or there is material interference in the physical
comfort of the appellants/plaintiffs or the appellants/plaintiffs being
prevented from carrying on his accustomed business in their own
dominant heritage/own property.”
8. Thus, from the above judgment passed by the Hon'ble High Court of Delhi, it
is clear that merely by virtue of being neighbour or resident of locality, a person does not
become entitled to file a suit to restrain other from carrying illegal construction. In order to
have locus, the party filing the suit must show that by virtue of such construction his legal
right to air or water or light has been affected or such construction is going to be detrimental
to his own property or his safety.
In the case in hand plaintiffs have made general and vague allegations
regarding infringement of personal rights. In view of the court, no personal right of
plaintiffs have been infringed or threaten to be infringed therefore plaintiffs have no locus to
file the present suit as no cause of action arises in their favour. Therefore, the present plaint
is rejected under Order 7 Rule 11 CPC.
File after due compliance be consigned to Record Room.
Decree sheet be prepared.
(Rakesh KumarII)
JSCC/ASCJ/Gudn. Judge
North, Rohini Courts, Delhi/24.11.2023
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