Delhi District Court
Hayat Yar Khan vs N. D. M. C. Ors on 24 December, 2024
IN THE COURT OF SH. UMESH KUMAR, JSCC-CUM- ASCJ-CUM-
GUARDIAN JUDGE-02/CENTRAL, TIS HAZARI COURTS/ DELHI
Suit No. 97641/16
In the matter of:-
Mr. Hayat Yar Khan,
S/o Late Nawab Sultan Yar Khan,
R/o 5182, Ballimaran, Chandni Chowk
Delhi-110006 .....Plaintiff
Vs.
1. North Delhi Municipal Corporation,
Through its Commissioner,
Civic Centre, 4th Floor, Minto Road,
New Delhi-110002
2. The Zonal Engineer (Building)
North Delhi Municipal Corporation
Sadar Paharganj Zone, Idgah Road,
Near Sadar Thana, Delhi-110006
3. Mehtab Alam
S/o Abdul Gafoor,
R/o 2347, Gali Meer Madari
Rodgran, Farash Khana, Delhi-110006
4. Mrs. Chaman Begum,
W/o Mohd. Zahoor,
5078, Kucha Rehman, Chandni Chowk,
Delhi-110006
5. Ruksar Begum
W/o Mohd. Rizwan
3994, Gali No.19, Ajeet Nagar,
Gandhi Nagar, Delhi-110031
6. Pappan
S/o Ahmed Nabi Digitally signed
UMESH by UMESH
KUMAR
KUMAR Date: 2024.12.24
16:17:43 +0530
CS SCJ No. 97641/2016 Hayat Yar Khan Vs. NDMC & Ors Page 1 of 16
R/o E-190, Janta Colony, New Jafarabad,
Delhi-110053 ...Defendants
Date of institution of Suit : 20.05.2015
Date on which Judgment was reserved : 23.12.2024
Date of pronouncement of the Judgment : 24.12.2024
(SUIT FOR MANDATORY AND PERMANENT INJUNCTION)
JUDGMENT
1. The present suit had been instituted by Sh. Ram Lal, Attorney on
behalf of the plaintiff for the relief of mandatory injunction
directing the defendant no.1 and 2 to take the immediate action as
per law to get demolished, removed and dismentled all the illegal
and unauthorized construction which has been carried in property
no. 5182, Ballimaran, Delhi-110006 so raised by defendant no.3 to
6. The plaintiff has also sought mandatory injunction directing the
defendants no.3 to 6 to remove the entire constructions so raised
without getting the sanction from the competent authority of MCD
in the aforesaid property. The plaintiff has also sought a decree of
permanent injunction directing the defendant no.3 to 6 not to raise
any further illegal construction without getting the plan sanctioned
from the competent authority of MCD and taking permission from
defendant no.1 and 2 in the aforementioned property. During the
course of proceedings, previous attorney Sh. Ram Lal had expired
and Sh. Masroor Ul Siddiqui was appointed as new attorney by the
plaintiff.
Plaintiff’s Case
2. Pleaded case of the plaintiff is that the plaintiff is the owner of
UMESH Digitally signed by
UMESH KUMAR
KUMAR Date: 2024.12.24
16:17:49 +0530
CS SCJ No. 97641/2016 Hayat Yar Khan Vs. NDMC & Ors Page 2 of 16
southern portion of property no. 5182, Ballimaran, Chandni
Chowk, Delhi and defendant no.3 is similarly the owner of another
portion of the same property as he had bought it from Naved Yar
Khan, who is the younger brother of the plaintiff. It is stated that
the entire property No. 5182 belonged to the father of the plaintiff
Late Sh. Nawab Sultan Yar Khan and he was also the owner /
landlord of the properties bearing municipal no. 5188, 5189 to
5195 and 5196 (half), situated in ward no. VI, Ballimaran,
Chandni Chowk, Delhi. It is stated that after the death of father of
the plaintiff, the aforesaid property alongwith other properties was
partitioned among all his legal heirs by way of family settlement in
the year 1999 and the aforesaid property no. 5182 came to the
shares of the plaintiff and his brother Naved Yar Khan. It is alleged
that after buying the said property, defendant no.3 to 6 raised
construction and deliberately and willfully encroached upon the
adjoining open roof of the common passage which leads to the
residence of the plaintiff and his sisters Tahoora Kawaja and
Rubina Sultan. It is further alleged that while carrying on the
constructions, the defendant no.3 to 6 went to the extent of raising
two residential floors on the aforementioned open roof of the said
covered passage without getting a duly sanctioned plan from the
competent authority of MCD. It is stated that that the constructions
so raised by the defendants is absolutely illegal and unauthorized.
It is stated that the open area of the roof of passage which has been
encroached by the defendants no.3 to 6 has an area of 56 sq. feet
and it had neither been sold by the plaintiff, nor any of his brothers
and sisters. It is further stated that the structure which the
UMESH Digitally signed by
UMESH KUMAR
KUMAR Date: 2024.12.24
16:17:56 +0530
CS SCJ No. 97641/2016 Hayat Yar Khan Vs. NDMC & Ors Page 3 of 16
defendant no.3 to 6 has constructed the two floors is more than 100
years and is too weak to bear that excessive load and there is
likelihood of the same may be collapsed in case of even minor
tremors of an earthquake which may result in tremendous loss of
precious life and property as it is densely populated and congested
area.
3. It is further stated that it was the statutory duty of the defendant
no.3 to 6 to obtain permission u/s 343/344 of the DMC Act before
raising any kind of construction from defendant no.1 and 2. On
01.10.2014, plaintiff sent a legal notice to defendant no.3 calling
him to remove the illegal construction so raised by him, but no
action has been taken by defendant no.3 for removal of the
aforesaid illegal construction. Thereafter, plaintiff sent a complaint
dated 23.02.2015 calling upon the defendant no.1 to 2 to take
action against the aforesaid illegal constructions so raised in the
suit property by defendant no.3 to 6, but defendant no.1 and 2 have
also failed to take any action despite having full knowledge about
the aforesaid illegal construction. Hence, the present suit.
4. Summons of the suit were sent to the defendants which stood
served upon all the defendants. Upon service of summons of the
suit, the defendant no.1 and 2 contested the present suit of the
plaintiff and filed the written statements
Written statement of defendant No.1. and 2
5. In the written statement filed on behalf of defendant no.1 and 2, it
UMESH Digitally signed by
UMESH KUMAR
KUMAR Date: 2024.12.24
16:18:01 +0530
CS SCJ No. 97641/2016 Hayat Yar Khan Vs. NDMC & Ors Page 4 of 16
is stated that the suit is barred as no statutory notice under Section
477/488 of DMC Act was served upon the defendant no.1 and 2. It
is stated that suit of the plaintiff is not maintainable as the property
bearing no. 5182, Ballimaran, Delhi-06 was inspected by the field
staff of the defendant 02.05.2014 and during the inspection,
unauthorized construction in the shape of entire third floor and
fourth floor was noticed, the same has been booked under Section
343/344 of the DMC Act and show cause notice was issued to Sh.
Mohd. Rizwan but he did not file any reply to the same, as such
after following the due process of law, the demolition order was
passed on 26.06.2014. It is stated that the action shall be taken in
due course of time as per law. It is stated that the property was
lastly inspected on 03.09.2015 and was found occupied and no
ongoing construction activity was seen in the property. Finally the
written statement prayed that there is no cause of action arise
against the defendant no.1 and 2 and same is liable to be dismissed
under Order 7 Rule 11 CPC.
6. Replication was filed on behalf of plaintiff to the written statement
of the defendant no.1 and 2 wherein plaintiff has denied all the
averments made by the defendant no.1 and 2 in the written
statements and has reiterated the statement of facts as mentioned in
the plaint. The same is not repeated herein for the sake of brevity.
7. Defendant no.3,4,5 and 6 have not filed their written statement
despite several opportunities being granted. Accordingly, the
defence of the defendant no. 3,4,5 and 6 has been struck off vide
Digitally signed
UMESH by UMESH
KUMAR
KUMAR Date: 2024.12.24
16:18:07 +0530
CS SCJ No. 97641/2016 Hayat Yar Khan Vs. NDMC & Ors Page 5 of 16
order dated 19.02.2016 for non filing of the written statement on
their behalf.
8. Upon completion of pleadings, the following issues were framed vide
order dated 31.05.2018 by the Court:-
(i) Whether the plaintiff is entitled for the relief of permanent
injunction as prayed for in the plaint?OPP.
(ii) Whether the plaintiff is entitled for the relief of mandatory
injunction as prayed for in the plaint?OPP.
(iii) Whether the suit of the plaintiff is barred by the provision of
Section 477/478 of the DMC Act for want of statutory notice?
OPD-1 and 2.
(iv) Relief. Plaintiff's evidence
9. To prove its case, plaintiff examined his attorney Sh. Masroor Ul
Hasan Siddiqi as PW-1 and filed his evidence by way of affidavit
which is Ex.PW1/A, and relied upon the following documents:-
i) Original GPA dated 20.05.2021 Ex. PW1/1 (OSR)
ii) Site Plan Ex. PW1/2
iii) Photographs of unauthorized construction Ex. PW1/3
iv) Photographs of unauthorized constructed Ex. PW1/4
v) Legal notice dated 10.05.2014 sent to defendant no.3 Ex.
PW1/5
vi) Postal receipt with respect to sending the legal notice Ex.
PW1/6
vii) Returned AD card regarding legal notice Ex. PW1/7
viii) Inspection carried out by defendant no.1 with respect to the
suit property Mark A
ix) Show cause notice dated 02.05.2014 with respect to the
notice issued by defendant no.1 Mark B.
x) Notice issued under Section 343 (1) of DMC Act Mark C
xi) Demolition notice dated 16.05.2014 issued by defendant
UMESH Digitally signed by
UMESH KUMARKUMAR Date: 2024.12.24
16:18:12 +0530
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no.1 with respect to the suit property Mark D
xii) Demolition notice dated 27.06.2014 issued by defendant
no.1 with respect to the suit property Mark E
10. During the course of trial, defendant no.3, 4,5 and 6 have failed to
appear before the court on several occasions. Accordingly,
proceedings against the defendant no.3,4,5 and 6 were set ex-parte
vide order dated 23.01.2020.
11. PW-1 was duly cross examined on behalf of defendant no.1 and 2 /
MCD. Defendant no.1 and 2 did not lead any defence evidence
despite opportunity being given. Thereafter the matter was posted
for final arguments.
Final arguments
12. During the course of final arguments, Ld counsel for plaintiff
relied upon the exhibited documents of the plaintiff alongwith the
deposition of PW-1 and prayed for a decree of the suit. On the
other hand, counsel appearing on behalf of defendant no.1 and 2
prayed for dismissal of this suit.
13. Heard the arguments advanced by the Ld. Counsels for parties.
This Court has carefully perused the entire records in light of the
pleadings of the parties and considered the oral submissions
advanced by Ld. counsel for both the parties.
14. The issues are decided as under:-
Issue no. (i) & (ii):
UMESH Digitally signed by
UMESH KUMARKUMAR Date: 2024.12.24
16:18:19 +0530CS SCJ No. 97641/2016 Hayat Yar Khan Vs. NDMC & Ors Page 7 of 16
Whether the plaintiff is entitled for the relief of permanent
injunction as prayed for in the plaint?OPP.
Whether the plaintiff is entitled for the relief of mandatory
injunction as prayed for in the plaint?OPP.
15. Issues no.(i) and (ii) are taken up together for discussion as both
the issues are interconnected and require appreciation of common
facts and evidence.
16. The onus to prove these issues was upon the plaintiff.
17. Before adverting to the discussion on the aforesaid issues, it is
necessary to deal with the objection raised by Ld counsel for
defendant no. 1 and 2 / MCD during the course of final arguments
regarding the authenticity of power of attorney executed by the
plaintiff in favour of PW-1 Sh. Masroor Ul Hasan Siddiqi. Ld.
Counsel for defendant no.1 and 2/ MCD had submitted that the
power of attorney was executed by the plaintiff in Dubai (UAE) on
20.05.2021 whereas the stamp paper was purchased on 14.06.2021
and therefore the GPA Ex. PW1/1 (OSR) is not valid in the eyes of
law. On the other hand, Ld counsel for plaintiff had stated
otherwise and had submitted that the GPA executed by the plaintiff
is within the four corners of law.
18. It is relevant to refer the applicable provisions of Section 85 of the
Indian Evidence Act, Section 3 of the Diplomatic and Consular
Officers (Oath and Fees) Act, 1948 and Section 18 of the Indian
Stamps Act and are reproduced as below:-
Digitally signed
UMESH by UMESH
KUMAR
KUMAR Date: 2024.12.24
16:18:24 +0530
CS SCJ No. 97641/2016 Hayat Yar Khan Vs. NDMC & Ors Page 8 of 16
“Section 85 of Indian Evidence Act.
Presumption as to power of attorney.:- The Court
shall presume that every document purporting to be a
power-of-attorney, and to have been executed before,
and authenticated by, a Notary Public, or any court,
Judge, Magistrate, Indian Consul or Vice-Consul, or
representative of the Central Government, was so
executed and authenticated.
Section 3 of the Diplomatic and Consular Officers
(Oath and Fees) Act, 1948.
Powers as to oaths and notarial acts abroad:-
(1) Every diplomatic or consular officer may, in any
foreign country or place where he is exercising his
functions, administer any oath and take any affidavit
and also do any notarial act which any notary public
may do within [a State]; and every oath, affidavit and
notarial act administered, sworn or done by or before
any such person shall be as effectual as if duly
administered, sworn or done by or before any lawful
authority in [a State].
(2) Any document purporting to have affixed,
impressed or subscribed thereon or thereto the seal
and signature of any person authorised by this Act to
administer an oath in testimony of any oath, affidavit
or act, being administered, taken or done by or before
him, shall be admitted in evidence without proof of
the seal or signature being the seal or signature of
that person, or of the official character of that person.
Section 18 of the Indian Stamps Act.
18. Instruments other than bills and notes executed
out of India.- (1) Every instrument chargeable with
duty executed only out of India and not being a bill
of exchange, or promissory note, may be stamped
within three months after it has been first received in
India.
(2) Where any such instrument cannot, with
reference to the description of stamp prescribed
UMESH Digitally signed by
UMESH KUMAR
KUMAR Date: 2024.12.24
16:18:29 +0530
CS SCJ No. 97641/2016 Hayat Yar Khan Vs. NDMC & Ors Page 9 of 16
therefor, be duly stamped by a private person, it may
be taken within the said period of three months to the
Collector, who shall stamp the same, in such manner
as the State Government.”
19. In the present case, the GPA Ex.PW1/1 (OSR) was executed by
the plaintiff before an official of Consulate General of India in
Dubai (UAE) which bears authentication by the official regarding
the manner of execution. Combined reading of Section 3 of the
Diplomatic and Consular Officers (Oath and Fees) Act, 1948 and
Section 18 of the Indian Stamps Act prescribe that every
diplomatic or consular officer may do any notarial act which any
notary public may do within a State and such act shall be effectual
as if duly done by an lawful authority in a State. Also, such
document which is executed out of India may be stamped within
three months after it has been first received in India.
20. Perusal of GPA Ex. PW1/1 (OSR) shows that the document was
executed by the plaintiff on 20.05.2021 and was stamped and
notarized on 14.06.2021 i.e. within three months of its execution.
Therefore, all the essential condition regarding the authenticity of
GPA Ex. PW1/1 (OSR) stand satisfied. Hence, the objection of Ld
counsel for defendant no.1 and 2 /MCD regarding the authenticity
of power of attorney Ex. PW1/1 (OSR) is not tenable and deserves
to be rejected.
21. Now coming back to the issues at hand, it is the case of the
plaintiff that he is the owner of Southern portion of property no.
5182, Ballimaran, Chandni Chowk, Delhi and defendant no. 3 is
Digitally signed
UMESH by UMESH
KUMAR
KUMAR Date: 2024.12.24
16:18:34 +0530
CS SCJ No. 97641/2016 Hayat Yar Khan Vs. NDMC & Ors Page 10 of 16
the owner of another portion of the same property. The plaintiff
has claimed his ownership on account of family settlement
happened in the year 1999 after the demise of his father. The
grievance of the plaintiff is that the defendant no.3 to 6 have
encroached upon the open roof of the common passage which
leads to the residence of plaintiff and his sisters and defendant no.3
to 6 have raised illegal construction over the property.
22. At the outset, it is pertinent to mention here that the plaintiff has
neither placed on record any document / family settlement to show
his ownership over any portion of property bearing no. 5182,
Balllimaran, Chandni Chowk, Delhi nor he has filed any document
qua his possession, be it actual or even constructive, over the suit
property. Nothing has been brought on record by the plaintiff to
show that the passage, as mentioned in the plaint, was common
between the parties. Therefore, the plaintiff has failed to
substantiate his averments regarding ownership over the portion of
the property and consequently, has failed to show his locus to file
the present suit.
23. As far as unauthorized construction by defendant no.3 to 6 is
concerned, the plaintiff has not mentioned any specific date of
raising unauthorized construction by defendant no.3 to 6. The
testimony of PW1 is vague in this regard. The limitation period
for filing a suit for mandatory injunction in 3 years from the date
of accruing of cause of action in favour of the plaintiff. Therefore,
mentioning of the date of alleged unauthorized construction was
Digitally signed
UMESH by UMESH
KUMAR
KUMAR Date: 2024.12.24
16:18:43 +0530
CS SCJ No. 97641/2016 Hayat Yar Khan Vs. NDMC & Ors Page 11 of 16
also material for considering whether the present suit is within the
period of limitation. Further, it is not the case of the plaintiff that
he did not have the knowledge of the alleged unauthorized
construction in the suit property. Hence, it cannot be presumed that
he did not have the knowledge of the date of starting or completion
of the alleged unauthorized construction by defendant no.3 to 6. In
the normal course of circumstances, the plaintiff ought to have
filed the suit at the time when alleged unauthorized construction
was in progress in the suit property and would not have waited till
its completion. It is pertinent to mention here that in the plaint an
averment has been made to the effect that defendant no.3 to 6 had
went on to the extent of raising two residential floors on the open
roof of the common passage whereas in the show cause notice
dated 02.05.2014 i.e. Mark B and demolition notice dated
16.05.2014 i.e. Mark D, both issued by defendant no.1 and relied
upon by the plaintiff, it can be inferred that construction has been
made till fourth floor over the suit property. The present suit has
been filed by the plaintiff on 20.05.2015 and for reasons best
known to the plaintiff, it is stated in the plaint that unauthorized
construction upto second floor has been made by defendant no.3 to
6. Further, in the replication filed on behalf of the plaintiff to the
written statement of defendant no.1 and 2, it is stated that
unauthorized construction upto fourth floor has been made by
defendant no.3 to 6. Hence, there is a material discrepancy
regarding the exact number of floors constructed over the suit
property at the time of filing of the present suit. It is apparent that
the plaintiff has filed the present suit without disclosing the entire
UMESH Digitally signed by
UMESH KUMAR
KUMAR Date: 2024.12.24
16:18:50 +0530
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true facts for seeking the relief of injunction.
24. The power of attorney holder of the plaintiff i.e. PW-1 has also
relied on certain photographs i.e. Ex. PW1/3 and Ex. PW1/4 qua
unauthorized construction but they are not supported by certificate
under Section 65-B of Indian Evidence Act, hence, cannot be
relied upon. Therefore, in the absence of any corroborative
evidence, it is unsafe to rely upon the role testimony of PW-1/
power of attorney holder of plaintiff.
25. The relief of injunction is a discretionary relief and the party
seeking the relief of injunction is required to bring all the relevant
facts before the Court and it is settled law that the party seeking the
relief of injunction must come before the Court with clean hands.
As per Section 101 of Indian Evidence Act, the onus is upon the
plaintiff to prove his case by leading cogent evidence, however,
the plaintiff has failed to prove his averments as the plaint itself is
lacking with material and relevant facts and no cogent evidence
has been led by the plaintiff in support of his averments.
26. In view of the above there are glaring loopholes in the case of the
plaintiff, hence, issue no. (i) and (ii) are decided against the
plaintiff and in favour of defendant no.1 and 2.
Issue no. (iii)
Whether the suit of the plaintiff is barred by the provision of
Section 477/478 of the DMC Act for want of statutory notice?
OPD-1 and 2.
UMESH Digitally signed by
UMESH KUMAR
KUMAR Date: 2024.12.24
16:18:57 +0530
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27. The onus to prove this issue was upon the defendant no.1 and 2.
28. The plaintiff has filed the present suit for permanent and
mandatory injunction. Section 478 of the DMC Act is relevant in
this regard which reads as follows:-
“478. Notice to be given of suits.- (1) No suit shall
be instituted against a Corporation or against any
municipal authority or against any municipal officer
or other municipal employee or against any person
acting under the order or direction of any municipal
authority or any municipal officer or other municipal
employee, in respect of any act done, or purporting
to have been done, in pursuance of this Act rule,
regulation or bye-law made thereunder until the
expiration of two months after notice in writing has
been left at the municipal office and, in the case of
such officer, employee or person, unless notice in
writing has also been delivered to him or left at this
office or place of residence, and unless such notice
states explicitly the cause of action, the nature of
this relief sought, the amount of compensation
claimed, and the name and place of residence of the
intending plaintiff, and unless the plaint contains a
statement that such notice has been so left or
delivered.
(2) No suit, such as is described in sub-section (1),
shall unless it is a suit for the recovery of
immovable property or for a declaration of title
thereto, be instituted after expiry of six months from
the date on which the cause of action arises.
(3) 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”.
Digitally signed
UMESH by UMESH
KUMAR
KUMAR Date: 2024.12.24
16:19:02 +0530
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29. From the perusal of the above provision, it is clear that no suit is
allowed to be instituted against a municipal authority and its
official for any act done in pursuance of this Act until the
expiration of two months after the notice in writing has been left at
the municipal office and in case of the officer unless a notice has
also been delivered to him or left at his office or at his residence.
In the present case, PW1/ Attorney Holder of the plaintiff has
deposed that in his evidence affidavit that the plaintiff had sent a
complaint dated 23.02.2015 to defendant no.1 and 2 to take action
against the alleged unauthorized construction raised in the suit
property by defendant no.3 to 6. However, the said complaint was
never brought on record by the plaintiff. No evidence has been led
by PW-1 to prove that any such complaint was made to defendant
no.1 and 2. It is not the case of the plaintiff that any notice about
the institution of the present suit mentioning the particulars as
required as per the above provision was ever served by the plaintiff
to the defendant no.1 and 2. In view of Section 478 of the DMC
Act, it was mandatory on the part of the plaintiff to give the notice
in writing to defendant no.1 and 2 before the institution of the suit.
In the facts and circumstances of the case, the present suit also
does not fall under the exception provided under the sub-Section 3
of Section 448 of the DMC Act, 1957 as no emergent situation has
been averred in the plaint or proved by the plaintiff.
30. Accordingly, this issue is decided in favour of the defendant no 1
and 2 and against the plaintiff.
UMESH Digitally signed by
UMESH KUMAR
KUMAR Date: 2024.12.24
16:19:11 +0530
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Relief
31. In view of the aforesaid findings on the above issues, the present
suit of the plaintiff stands dismissed.
32. No orders as to costs.
33. Decree sheet be prepared accordingly.
34. File be consigned to Record-Room after due compliance.
UMESH Digitally signed by
UMESH KUMAR
KUMAR Date: 2024.12.24
16:19:18 +0530
Pronounced in the open (Umesh Kumar)
Court on 24.12.2024 JSCC-Cum-ASCJ-Cum-GJ-02
Central, Tis Hazari Courts.
24.12.2024
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