ONKAR NATH v. RAM NATH — 1985 DIGILAW 31 (DEL)

S. N. Kapoor, J. ( 1 ) ORDER:- This revision by the plaintiff under S. 115 of the Civil P. C. is directed against the judgment and order dt. 23rd March, 1984 of the Additional District Judge confirming the order dt. 29th Nov. 1982 of the Subordinate Judge, Delhi, dismissing his application under O. 39 Rr. 1 and 2 of the Civil P. C. ( 2 ) THE brief facts as alleged are that the plaintiff is the owner of a three-storeyed house-bearing Municipal No. 4647/1 situated at 21 Darya Ganj, New Delhi and he has been residing on the first and second floors that the house has been in existence for the last 23 years and there have been three windows marked as A, B and C in the plan on the Eastern side of the first floor which are the only source of light and air to the living room and the dining-room of the plaintiff, that under the Building Bye-laws, no construction can be raised back to back and a person who wants to construct a building on an open plot of land is bound to leave at least 10 feet rear set back, and similarly, a front set back. The plaintiff alleges that defendants are in possession of an open plot of land situated on the East of his property marked x in the plan filed with the plaint; that defendants 1 to 3 on 20th Aug. 1982 collected building material with a view to raise unauthorised construction; that he came to know of their intention and warned them not to raise any unauthorised constructions without obtaining sanction of the Municipal Corporation of Delhi. The defendants however started raising unauthorised construction and the matter was reported to the police. The defendants were directed not to raise any unauthorised construction. It is alleged that the defendants again tried to raise unauthorised construction on 23rd Aug, 1982 and the matter was again reported to the police by residents and the defendants were again warned not to raise any unauthorised construction. The plaintiff alleges that the defendants are adamant to raise unauthorised construction contrary to the Building Bye-laws without obtaining the requisite sanction from the Municipal Corporation of Delhi. The plaintiff alleges that the defendants are adamant to raise unauthorised construction contrary to the Building Bye-laws without obtaining the requisite sanction from the Municipal Corporation of Delhi. It is further alleged that defendant 1 is an ex-employee, defendant 2 is an employee of the Municipal Corporation of Delhi and they have influence on the officials of the Corporation and therefore, they are adamant to raise unauthorised construction in connivance with the officers of the Municipal Corporation of Delhi, that defendants 1 to 3 have no right to raise any unauthorised construction and defendant 4, Municipal Corporation of Delhi is bound to take suitable action for the unauthorised construction contrary to the Building Bye-laws. The plaintiff further alleges that if defendants 1 to 3 are allowed to raise construction in contravention of the Building Bye-laws, his rights would be seriously affected as the unauthorised constructions without leaving front and rear set back will not only contravene the Building Bye-Laws but shall also seriously affect his rights as the light and the air which the plaintiff has been enjoying will be seriously affected and that it would cause nuisance; that it will materially affect his comfort; that the provisions for leaving front and rear set back have been made for the benefit of the neighbours, that the Municipal Corporation has no right to allow the construction without the front and rear set back contrary to Building Bye-Laws. On these grounds, the plaintiff prayed for a decree of perpetual injunction restraining the defendants 1 to 3 from raising any unauthorised construction without obtaining necessary sanction of the Municipal Corporation of Delhi on the plot of land situated on the East of his property, marked x in the plan annexed to the plaint. The plaintiff has further prayed for an injunction against defendant 4 restraining them from according permission or sanction to the defendants 1 to 3 in contravention of the Delhi Municipal Corporation Act and Bye-laws framed thereunder. Along with the plaint, the plaintiff filed an application under O. 39, Rr. 1 and 2 of the Civil P. C. for a temporary injunction restraining the defendants from raising any unauthorised construction during the pendency of the suit. Along with the plaint, the plaintiff filed an application under O. 39, Rr. 1 and 2 of the Civil P. C. for a temporary injunction restraining the defendants from raising any unauthorised construction during the pendency of the suit. ( 3 ) THE Municipal Corporation of Delhi did not contest the suit and has been proceeded ex parte, Defendants 1 to 3 in their written statement and in reply to the application for the grant of a temporary injunction have pleaded that the plaintiff himself was guilty of encroachment on the street and raising unauthorised construction in contravention of the building Bye-laws. It is denied that three windows are the only source of light and air; that the plaintiff does not have any right of easement on the property of the defendants; that the property of the defendants is not an open plot of land and it is surrounded by 11 1/2 feet high walls on all sides; that the walls has a tin roof and the defendants have removed the same in order to put a masonry roof permissible under the Building Bye-laws; and no permission is required to change the same; that the building existed within the jurisdiction of the Delhi Municipal Corporation from the very beginning; that the side plan was incomplete and incorrect; that the suit was filed in order to cause unlawful loss and harassment to the defendants. It is not disputed that defendants 1 to 3 had procured Badarpur sand and bricks in order to pave the floor of the building. They further state that they have no intention of making any unauthorised construction; that the first storey of the defendants property exists and if they make second storey then only the question will crop up as to whether by erection of the second storey the windows of the plaintiff would be blocked or not; that the second storey in any case, will not block the light and air of the plaintiffs property; that the claim was vague. The defendants further allege that they want to replace the roof which existed previously. The defendants further allege that they want to replace the roof which existed previously. The trial Court dismissed the application holding that the plaintiff had no prima facie case and by changing the roof and construction, the building was not likely to block the windows of the plaintiff; that the plaintiff could not make out his case for leaving the rear set back and front set back. On appeal, the Additional District Judge also dismissed the plaintiffs application holding that the plaintiff had no prima facie case; that the balance of convenience was not in his favour and he was not likely to suffer any irreparable loss or injury because of construction being raised without obtaining sanction. ( 4 ) LEARNED counsel for the petitioner submits that the approach of the courts below for the grant of the injunction is contrary to well established principles of law. He submits that he has a prima facie case; that the plaintiff shall suffer irreparable loss and injury in case the defendants are not restrained from raising unauthorised construction; that the balance of convenience is in his favour. The suit was filed on 24th Aug. 1982 and at the instance of the plaintiff, a local Commissioner was appointed who visited the spot on 29th Aug. 1982, which is very material for the decision of the application for the grant of the temporary injunction the local Commissioner prepared a rough sketch of the site and he reported that the height of the walls was 11 -6": and thickness was 9"; that there were four pillars of bricks of size 2". 1" 13"; that the flooring at the place marked x to y shown in rough sketch was dug measuring 18 long, 2 wide and 1 deep: that there was an old wooden gate which was 9 x 2" high and 6 x 7" wide. The height of the windows from the plinth level was 16 up to its lower side. That at the time of his visit there was no roof in the building and a single tin sheet of the size 6 x 2 1/4 only was lying. The height of the windows from the plinth level was 16 up to its lower side. That at the time of his visit there was no roof in the building and a single tin sheet of the size 6 x 2 1/4 only was lying. According to this report, it is apparent that the defendants have dug the earth about 18 long, 2 wide and 1 1/2 deep which alone shows that they intend to raise a wall or any other structure on this place marked x to y in the rough sketch prepared by the local Commissioner. There are already four pillars of the size 2 x 1 x13". It is not clear as to how and when these pillars were raised. The defendants admit that they never obtained any sanction for raising any construction, on this plot. Their case is that a single storey building already existed, but in fact there is no building. In the written statement, they have not given the size of the alleged tin shed, it is not mentioned what is its height or area. It appears that the defendants from time to time raised construction without obtaining any sanction from the Corporation and now they intend to raise further construction especially in view of the fact that they have dug earth on the plot to the extent of 18 long, 2 wide and 1 1/2 deep. From the report of the local commissioner, the intention of the defendants is clear that they want to raise construction. In the written statement they plead that they do not want to raise unauthorised construction. It is not stated what they want to do. They further say that they want to replace the tin shed by a masonry roof. The local Commissioner visited the spot on 29th Aug. 1982 and the written statement is dt. 1st Sept. 1982. On 29th Aug. 1982, there was digging on the floor for raising a wall, but there is no mention of such digging in the written statement. It shows that the defendants concealed the fact of digging the earth with a view to raise the wall on the portion marked x to y on the rough sketch. ( 5 ) THE plea of the defendants that they do not want to raise any unauthorised construction is vague. It shows that the defendants concealed the fact of digging the earth with a view to raise the wall on the portion marked x to y on the rough sketch. ( 5 ) THE plea of the defendants that they do not want to raise any unauthorised construction is vague. Their plea is that replacing of the tin shed by the masonry roof is a repair within the meaning of Building Bye-laws and no permission for such replacement is necessary. However, the report of the local commissioner leaves no doubt that their intention is to raise the construction at least on the portion marked x to y measuring 18 long, 2 wide and 1 1/2 deep. The tin sheet lying at the spot was of the size 6 x 2 1/2 only. In other words, it can be said that the size of the tin-shed was 6 long 2 wide. Learned counsel for the defendants/respondents submits that the plaintiff has not alleged what construction the defendants had intended to raise and, therefore, the plaint is vague and the plaintiff has not come to the court with clean hands and as such is not entitled to any discretionary relief I do not appreciate this defence. The plaintiff s case is that the defendants are raising or intending to raise unauthorised construction. It is in the knowledge of the defendants as to what structure they want to raise. Prima facie, the plaintiff, after the inspection by the local commissioner, has satisfied that the defendants want to raise a structure for which they have dug the floor of the size of about 18 long 2 wide and 1 1/2 deep. It is admitted that they have collected building material such as Badarpur sand and bricks, but they say that they have collected with a view to pave the floor of the building. For paving the floor of the building it was not necessary to dig the earth to the extent of 1 1/2 deep, 2 wide and 18 long. Prima facie, I am satisfied that the defendants intend to raise structure on this plot of land. The lower appellate Court had held that the site is only a plot of land and there is no building. Prima facie, I am satisfied that the defendants intend to raise structure on this plot of land. The lower appellate Court had held that the site is only a plot of land and there is no building. The lower appellate Court has further observed that the question of re-roofing does not arise and that it is only an attempt to cover unauthorised construction which was intended to be raised without having any sanctioned plan. The lower appellate Court however has held that the plaintiff a neighbour has no right to seek relief against the defendants restraining them from raising any unauthorised construction contrary to the Building Bye-laws. Learned counsel for the petitioner submits that the rights of the plaintiff are affected and, therefore, he is entitled to an injunction against the defendants respondents. His submission is that leaving of the front set back and the rear set back is a must and that the defendants cannot raise any construction on the plot without leaving the set backs in accordance with the Building Bye-laws for the Union Territory of Delhi under the jurisdiction of the Municipal Corporation of Delhi which came into force w. e. f. 23rd June 1983 (for short the Bye-laws of 1983 ) Bye-Laws 2. 03 provides that all mandatory Master Plan/zonal regulations regarding use, coverage FAR set backs, open spaces, height, number of storeys etc. will automatically be included as part of these bye-laws Extracts relating to these regulations providing for set backs etc. are given in Annexure j to these bye-laws. Annexure j provides that on a plot of land up to 60 feet depth minimum set back in front would be 10 feet. Similarly a set back of 10 feet is provided on the side set back line. Thus it appears that leaving of the set backs is mandatory according to the Bye-laws of 1983. The learned counsel for the defendants submits that Bye-law No. 25 of the Delhi Municipal Corporation (Building) Bye-laws 1959 (for short old Bye-laws) does not provide for any set back with respect to the building to be constructed on plots in the areas which prior to the establishment of the Municipal Corporation of Delhi were within the local limits of Municipal Committee. It is true that the plot of the defendants was within the local limits of Municipal Committee, but on a true interpretation of Bye-law No. 25, I am not inclined to hold that they were not required to leave the front set back or the rear set back as provided in the old Bye-laws. The proviso to old Bye-law No. 25 (2) 1a (e) (iii) applies only to the side set back and not to the front or rear set back. In any case, old Building Bye-laws 1959 stand superseded by Building Bye-laws of 1983. Building Bye-laws 1983 define alteration . It means change from one occupancy to another or a structural change such as addition to the area or height etc, etc. (Bye-laws 2. 3) Bye law No. 5. 1 provides that no person shall erect, re-erect or make alterations or demolish any building or cause the same to be done without first obtaining separate building permit for each such building from the Authority. Further Bye-law 6. 1 requires every person who intends to erect, re-erect or make alterations in any place in a building or demolish any building to give notice in writing to the authority of his intention to do so. Bye-law 6. 4. 1 however provides that no notice and building permit is necessary for the alteration mentioned thereunder. It provides that (a) plastering and patch repairs (b) roofing or renewal of roof including roof of intermediate floor at the same height, (c) flooring and re-flooring will not require any building permit. Under the old Bye-laws, Bye-law No. 2 (67a) defined repairs wherein it was provided that re-roofing or renewal of roof was permissible at the same height or by raising the height of the walls of room. It therefore appears that under the old building Bye-laws re-roofing by raising the height of the walls under certain conditions was permissible, but under the new Bye-laws 1983 re-roofing or renewal of roof is permissible at the same height. In the instant case, there is no, prima facie, proof or plea of the defendants that a tin-shed existed at the site, if so what was its area and what was its height. In the instant case, there is no, prima facie, proof or plea of the defendants that a tin-shed existed at the site, if so what was its area and what was its height. These are the facts which they have failed to plead and as such their allegation that they only want to replace the roof is not covered within the meaning of the word repairs under the old Bye-laws or under the new Bye-laws No. 6. 4. 1. ( 6 ) LEARNED counsel for the defendants submits that no injunction can be granted under S. 41 (j) of the Specific Relief Act (1963) as the plaintiff is not personally interested in this matter. Learned counsel for the plaintiff, on the other hand submits that the plaintiff has an interest as the defendants are bound by the Building Bye-laws, that they cannot raise any structure without obtaining sanction from the authority concerned and that under the Building Bye-laws 1983, the defendants are required to leave the set backs as the plot of the defendants is situated on the east adjoining to the property of the plaintiff. The question however remains whether a neighbour has a right to file a suit for restraining his neighbour from raising any construction contrary to the Building Bye-laws. In K. Ramadas Shenoy v. Chief Officer, Town Municipal Council, Udipi, AIR 1974 SC 2177 , it was observed as under:- "an illegal construction of a cinema building materially affects the right to or enjoyment of the property by persons residing in the residential area. The Municipal Authorities owe a duty and obligation under the statute to see that the residential area is not spoilt by unauthorised construction. The Scheme is for the benefit of the residents of the locality. The Municipality acts in aid of the scheme. The rights of the residents in the area are invaded by an illegal construction of a cinema building. It has to be remembered that a scheme in a residential area means planned orderliness in accordance with the requirements of the residents. If the scheme is nullified by arbitrary acts in excess and derogation of the powers of the Municipality the Courts will quash orders passed by Municipalities in such cases. It has to be remembered that a scheme in a residential area means planned orderliness in accordance with the requirements of the residents. If the scheme is nullified by arbitrary acts in excess and derogation of the powers of the Municipality the Courts will quash orders passed by Municipalities in such cases. ( 7 ) IT has been also observed that an injury may be caused either by the fulfilment of the duty cast by the statute or by failure to carry it out or by negligence in its performance. Learned counsel submits that the Municipal Corporation of Delhi has failed to fulfil the duty by its negligence as the unauthorised construction was not restrained by the Corporation. In Sm. Lakashmimoni DAssi, AIR 1941 Cal 391, it has been observed that where permission to build is given contrary to the bye-laws and whereby premises of adjacent owner is injured as to light, air, health and amenities, the Corporation owes a duty to the adjacent owner and there is in the adjacent owner a legal right, as to found an application for mandamus. In Krishna Kali Mallik v. Babu Lal Shaw, AIR 1965 Cal 148 , neighbour of plaintiff was constructing building in violation of municipal statutory rules relating to open space, back space side space to be kept open at a building. It was held that the plaintiff has a right to sue the defendants and ask for an injunction. ( 8 ) IN Smt. Ang Lhamu v. Smt. Ladena, AIR 1983 Sikk 5, the plaintiff was granted an injunction against his neighbour defendant who was constructing building contrary to bye-laws of the Municipality. From these authorities, it appears that the plaintiff has a right to seek the aid of the Court in restraining his neighbour from raising construction contrary to bye-laws or from raising unauthorised construction. Raising of unauthorised construction will effect the rights of the plaintiff as under the Building bye-laws 1983 leaving set backs is mandatory. Admittedly, there is no sanction plan in favour of the defendants. They have not made any application for obtaining any sanction for raising a building, but still their intention from the report of the local Commissioner is clear that they intend to raise structures. Such a structure cannot be raised without permission of the authorities concerned. If a structure is raised without permission it would affect the right of the plaintiff. They have not made any application for obtaining any sanction for raising a building, but still their intention from the report of the local Commissioner is clear that they intend to raise structures. Such a structure cannot be raised without permission of the authorities concerned. If a structure is raised without permission it would affect the right of the plaintiff. I therefore do not agree with the observation of the Lower Courts that the plaintiff has no prima facie case; that his right is not affected. The plaintiff is the owner of the building, while the defendants are alleged to be the owner of the adjoining plot. If the defendants are allowed to raise unauthorised structure, the right of the plaintiff is likely to be affected. Learned Counsel for the defendants refers to the judgment in Sarojini Market Shop-Keepers Association (Regd.) v. Union of India, (1964) 66 Pun LR 1144 wherein it has been observed that the objection about the construction of a building without the sanction of the local authority concerned cannot be raised by a third person and it can be raised only by the authority concerned. With due respect, I am not inclined to follow this judgment in view of the observations of the Supreme Court in K. Ramadas Shenoy v. Chief Officers ( AIR 1974 SC 2177 ) (supra) Learned counsel for the defendants submits that the plot of land is not an open plot of land and is a building and in this connection he refers to judgment dated 5-9-1969 of Mr. V. S. Aggarwal in re; - Jai Kishan v. Jitender, wherein it appears that the present plaintiff appeared as a witness who is alleged to have deposed that there was a Khoka. The lower appellate Court has concluded that there is an open plot of land. What is the significance of the statement of the plaintiff in the said litigation and in what context that statement was made are the matters to be gone into during the trial of the suit. But at this stage, it cannot be said that there was any tin-shed. This is a fit case where the Courts below ought to have injuncted defendants. From raising unauthorised construction on the plot in question. If the defendants are not restrained, it may be difficult later on to get the said structures demolished. But at this stage, it cannot be said that there was any tin-shed. This is a fit case where the Courts below ought to have injuncted defendants. From raising unauthorised construction on the plot in question. If the defendants are not restrained, it may be difficult later on to get the said structures demolished. The defendants have not been able to make out a case for carrying out the repairs within the meaning of old Bye-laws or to make out a case that no permit is required for the alleged construction or alteration under the new Bye-laws. The Courts below acted illegally in the exercise of their jurisdiction. The plaintiff has a prima facie case. Balance of convenience is in his favour. He will suffer irreparable injury if defendants are not restrained. I, therefore, set aside the impugned orders and restrain the defendants 1 to 3 from raising any construction over the plot marked x situated on the East of the property of the plaintiff bearing Municipal No. 4647/1 at 21 Darya Ganj, New Delhi without obtaining necessary permit or sanction from the concerned authorities till the decision of the suit. Parties are left to bear their own costs. Revision allowed.