from other floor owners. It is further averred that plaintiff approached the defendant no.

1
and requested him to stop the construction work until she gets the sanctioned plan from
competent authority but defendant no. 1 refused to stop the construction work. It is averred
that structure of building is not meant for another floor and further defendant no. 1 has closed
the shaft which has led to the suffocation and pollution thereby causing health hazards.

CS No. 274/14 2/32

3. It is averred that plaintiff brought the said fact into the notice of MCD and SHO concerned
vide letters dated 17.07.2014 but no action was taken by the concerned authorities. It is
further averred that an email dated 18.07.2014 was also sent to Lieutenant Governor, Delhi
but no reply/response was received from LG office. It is averred that plaintiff again send a
reminder letter dated 23.07.2014 which was duly received by SDMC but no action was taken
to stop the illegal construction.

4. It is further averred that on 25.07.2014 defendant no. 1 brought some heavy machines for
the construction and plaintiff called the police at 100 number vide diary no. 8A dated
25.07.2014 but the police refused to stop the construction work. Hence the plaintiff was
constrained to approach the court by way of present suit.

5. The

urposes and SDMC after following due process of law issued demolition notice dated
11.09.2014 directing all the Noticee to remove the alleged unauthorized construction and
owners did not comply with the demolition notice and as such action is being planned to
carry out

11. In order to prove his case plaintiff examined Sh. M.P. Singh Chawla as PW1 who
deposed on the lines of plaint. He tendered his affidavit as Ex. PW1/A and relied upon
documents i.e copy of letter dated 17.07.2014 as Ex. PW1/1, copy of letter dated 17.07.2014
addressed to SHO P.S. Greater Kailash as Ex. PW1/2, SDMC report dated 19.08.2014 as Ex.
PW1/3, report of local commissioner as Ex. PW1/4, photographs as Ex. PW1/5 and status
report along with copy of photographs as Ex. PW1/6.

12. As against this Defendant no. 1 examined herself as DW1 and she tendered her evidence
by way of affidavit as Ex. DW1/A. She also relied upon document Mark A i.e. structural
stability certificate. She failed to lead further DE and the right to lead DE was closed vide
orders dated 16.03.2016. Thereafter on account of absence of defendant no. 1 she was
proceeded exparte vide orders dated 30.03.2016.

13. I have heard the Ld. counsel for parties, have given due CS No. 274/14 7/32
consideration to the rival contentions raised at bar and have carefully gone through the
record.
14. My issue wise finding is as under: Issue no. 3 i.e. Whether the suit of the plaintiff is
barred U/s 347E of DMC Act? OPD

15. This additional issue was framed vide proceedings dated 11.12.2015 upon an application
moved by defendant no. 1. Though defendant no. 1 is not available before the court however
from the application on record upon which present issue was framed by Ld. Predecessor of
this court as well as from proceedings dated 11.12.2015 it emerges that the issue was framed
as defendant no. 1 alleged that as she had already approached the Appellate Tribunal in
respect of the refusal to regularize the construction raised by her and against the sealing
orders passed by the SDMC therefore jurisdiction of the court was barred.

16. To understand the issue it will be worthwhile to go through the provisions of section
347E of the Delhi Municipal Corporation Act, 1957 which reads as under: "347E. Bar of
jurisdiction of courts CS No. 274/14 8/32 (1) After the commencement of section 7 of the
Delhi Municipal Corporation (Amendment) Act, 1984, no court shall entertain any suit,
application or other proceedings in respect of any order or notice appealable under section
343 or section 347B and no such order or notice shall be called in question otherwise than by
preferring an appeal under those sections."

17. What the above provision of the DMC Act provides is that any person aggrieved by any
order or notice appealable under section 343 or section 347B of the said Act cannot approach
the civil court i.e. jurisdiction of civil court is barred, but can merely prefer an appeal before
the Appellate Tribunal constituted under the Act. The order and notices as are writ large from
sections 343 and 347B are one passed by the Commissioner directing demolition of
unauthorized construction or stoppage of construction work or sealing of unauthorized
construction etc. apart from the other orders which the Commissioner may pass to give effect
to the provision of the Act. The bar is thus created against the person aggrieved with such
orders and notices which naturally contemplates the owner of the building or the person
carrying on the construction activity. The bar is against that person only from approaching
the civil court and none other. Reliance may be placed upon the law laid down in Shiv
Kumar Chadha Vs. MCD and anr. (1993) 3 SCC 161, Prabhu Dayal Vs. MCD and anr. 90
(2001) DLT 710 and Manohar Lal Chatrath {77 (1999) DLT 5}. Section 347E does not
create a CS No. 274/14 9/32 bar against a person aggrieved by unauthorized construction
from approaching the civil courts. Putting any such interpretation would defeat the very
purpose of the Act and curtail the civil rights of the citizen against rampant unauthorized
construction. It is settled law that every citizen, every neighbor has a right to see that
building byelaws and laws are followed and that no unauthorized construction is raised in the
neighborhood as raising of unauthorized construction creates civil problem for the entire
neighborhood and affects the material right of the citizens. Every citizen can approach the
court against the menace of unauthorized construction. Reliance may be placed upon the law
laid down in Onkar Nath Vs. Ram Nath Gupta AIR 1985 Delhi 293.

18. Moreover in the case at hand the orders directing stoppage of work/ unauthorized
construction/sealing were passed subsequent to the filing of the present suit. No doubt vide
the said orders the defendant no. 2 had sealed the unauthorized construction however that by
itself does not curtail the right of the plaintiff to approach this court though it definitely
curtails the right of defendant no. 1 to approach the court against the said order of sealing/
demolition order/ stopping of construction work/rejection of her application for
regularization. She can merely approach the Appellate Tribunal constituted under the Act.

CS No. 274/14 10/32

19. Therefore, this issue is decided in favour of the plaintiff and against the defendants.

Issue no. 1 and 2 i.e. Whether plaintiff is entitled to decree of permanent injunction as prayed
? OPP and whether plaintiff is entitled to decree of mandatory injunction as prayed? OPP

20. Both these issues are inter connected and are accordingly taken together and the finding
is as under:

21. The moot question is whether plaintiff is entitled for the decree of permanent and
mandatory injunction as prayed for by him. In nutshell the plaintiff had filed the present suit
seeking relief of permanent and mandatory injunction thereby restraining the defendant no. 1
from carrying unauthorized/illegal construction at the third floor i.e. over and above the
second floor of the property bearing no. E6, Greater Kailash Enclave 1, New Delhi and
seeking a direction of demolition of the said unauthorized construction by defendant no. 2.

CS No. 274/14 11/32

22. To prove his case that defendant no. 1 had carried out unauthorized construction at the
suit property the plaintiff examined Sh. M.P. Chawla as PW1. PW1 deposed in terms of the
plaint and stated that the defendant no. 1 started raising unauthorized construction i.e.
without getting any sanctioned plan/ against municipal byelaws at the suit property on
16.07.2014. He further proved that defendant no. 1 was asked to stop the unauthorized
construction and on his failure letters were written to SDMC as well as SHO P.S. GKI on
17.07.2014. These letters are on record as Ex. PW1/1 and 2 and they prove that the plaintiff
had brought into the knowledge of the concerned agencies that defendant no. 1 was raising
unauthorized construction. To further prove the factum of unauthorized construction the
plaintiff further relied upon the report of local commissioner i.e. Ex. PW1/4 (colly),
photographs Ex. PW1/5 and status report of SDMC along with photographs Ex. PW1/6.

23. Before dwelling upon the evidence/documents relied upon by the plaintiff to prove his
case it will be worthwhile to highlight that in the WS defendant no. 1 did not even once
categorically deny the factum of carrying of unauthorized construction by her. This fact was
never controverted in the pleadings. She merely claimed that she had approached the SDMC
for sanctioning of the plan for the construction of 3rd floor. Same CS No. 274/14 12/32 is
writ large from the paragraph 2 of preliminary objections and paragraph 4 to 9 of reply on
merits of her WS. Not only is there no categorical denial of raising construction of the 3rd
floor i.e. suit property but in fact there is an admission that the construction was raised on the
3rd floor i.e. suit property. The pleadings therefore leave no doubt that unauthorized
construction activity was carried out by defendant no. 1 at suit property without having any
sanctioned plan for the same and against the municipal byelaws. Though she had made an
attempt to get the unauthorized construction regularized but her application was rejected as is
evident from Ex. PW1/3. In Badat and Co. vs. East India Trading Co ., 1964 (4) SCR 19 , it
was held that Rules 3,4 and 5 of Order 8 of C.P.C. form an integrated code dealing with the
manner in which allegations of fact in the plaint should be traversed and the legal
consequences flowing from its noncompliance. It was held that the written statement must
deal specifically with each allegation of fact in the plaint and when a defendant denies any
such fact he must not do so evasively but answer the point of substance. If his denial of a fact
is not specific but evasive, the said fact shall be taken to be admitted of which no other proof
is necessary unless the court in its discretion under the proviso to Rule 5 requires any fact so
admitted to be proved otherwise than by such implied admission. The requirement, therefore,
is that the denial should be made of the point of substance to amount to a specific denial of
the allegation of fact.

CS No. 274/14 13/32 The written statement has to be read as a whole to see whether any
implied admission can be spelled out therefrom.

24. In the case at hand there is one document/report of the Local Commissioner i.e. Ex.
PW1/4 (colly) which goes on to a great length to squarely prove the case of unauthorized
construction as alleged by the plaintiff. The report of the Local Commissioner who had
visited the suit property on 08.09.2014 coupled with the photographs leaves no doubt that
construction was being raised at the suit property at the time of visit of the Local
Commissioner. The relevant portion of report of the Local Commissioner read as "The entire
portion over and above second floor is newly constructed having No Sewage pipes, electric
wire supply, Door, windows, gate or their frames, Plaster, white wash, electric
sockets/plugs". This report of the Local Commissioner coupled with the photographs which
were not challenged during the trial and is itself sufficient to establish the case in favour of
plaintiff and against the defendant.

25. Apart from the report of Local Commissioner the plaintiff also relied upon the report of
SDMC dated 19.08.2014 as Ex. PW1/3. In the said report vide which defendant no. 1 was
communicated about rejection of her application for regularization the SDMC had opined
that as policy for floor CS No. 274/14 14/32 wise regularization was not in force hence her
application for regularization was not maintainable. This report also goes on to prove that
unauthorized construction as alleged was indeed raised by defendant no. 1.

26. In fact during the course of trial in the present suit despite passing a restrain order
thereby directing the defendant no. 1 to not to carry on any unauthorized construction
defendant no. 1 continued to carry on the unauthorized construction at the suit property.
Defendant no. 1 in fact kept raising on unauthorized construction despite sealing of the suit
property/ unauthorized construction by defendant no. 2. Same stands proved in view of
photographs Ex. PW1/5, Status report Ex. PW1/6 and Ex. DW1/P1 to P5 with which the
defendant no. 1 was confronted during her cross examination. Photographs Ex. DW1/P1 to
P5 as against photographs Ex. PW1/4 (colly) and the report of local commissioner leaves no
doubt whatsoever that in utter discompliance of the order passed by this court and it will not
be wrong to state herein "definitely in collusion with the Local police and MCD" defendant
no. 1 completed the construction of the suit property. Without their (MCD and SHO)
collusion, knowledge the construction could not have been completed.

27. Defendant no. 1 and for that matter defendant no. 2 resisted the CS No. 274/14 15/32 suit
of the plaintiff while agitating that the plaintiff had not approached the court with clean
hands as the plaintiff himself was residing in basement which portion/area could not be used
as a residence as same is against municipal byelaws. Therefore it was argued that having
concealed material facts and having not approached the court with clean hands the plaintiff is
not entitled to the equitable relief of injunction. It was also one of the contentions of Ld.
Counsel for defendant no. 2 that the plaintiff did not appear in the court even once and PW1
Sh. M.P. Chawla could not prove any authorization on record whereby the plaintiff
authorized him to pursue the present case on his behalf.

28. As far as the authorization issue is concerned I have perused the provisions of Order III
CPC and have gone through the law laid down in Janki Vashdeo Bhojwani Vs. Indus Ind
Bank Limited AIR 2005 SC 439 and Jineshwar Das Vs. Jagrani AIR 2003 SC 4596.

29. As per Order III CPC appearances in the suit may be in person or by a recognized agent
or by a pleader. Order III reads as under: "Appearance, etc., may be in person, by recognized
agent or by pleader Any appearance, application or act in or to any Court, required or
authorized by law to be made or done by a party in such Court, may, except where otherwise
expressly provided by any CS No. 274/14 16/32 law for the time being in force, be made or
done by the party in person, or by his recognized agent, or by a pleader (appearing, applying
or acting, as the case may be,) on his behalf:

30. In the case at hand the suit was filed the plaintiff and since day one he has been
represented by his pleader. It is not the case of either of defendant that the plaintiff did not
file the suit or that the plaint does not bear the signatures of the plaintiff or that the same are
forged or someone else. PW1 was not cross examined on the above lines and hence it is not
now open to agitate that the plaintiff did not appear before the court. In fact there is no
requirement that the plaintiff should appear in person/depose in every case. If the plaintiff is
able to prove his case otherwise i.e. through any of his witnesses relief cannot be denied to
him merely because he did not appear in person in the court or depose in line of plaint. Order
III CPC is crystal clear in this regard. In the case at hand the Vakalatnama of the
pleader/advocate Sh. Mohit Sharma is on record. The plaint, the affidavit accompanying the
plaint, the list of witnesses bear the signatures of the plaintiff as well as his pleader i.e.
Advocate Sh. Mohit Sharma. Name of PW1 i.e. M.P. Singh Chawla appears at Sl. No. 1 in
the list of witnesses. Therefore no further authorization was required in favour of PW1 who
is otherwise son of plaintiff and PW1 was competent to depose in favour of/in support of the
plaintiff.

CS No. 274/14 17/32

31. Furthermore, as far as deposition of PW1 is concerned he as discussed above deposed as
a witness in his personal capacity after having been duly cited as a plaintiff witness in the list
of witnesses. Moreover the facts needed to be proved by the plaintiff in the case at hand to
seek the relief were not one within his exclusive knowledge only or one which only he could
have proved. The facts i.e. the raising of unauthorized construction could be proved either by
the plaintiff himself or through any other witness which could be any person or any official
etc. PW1 proved the factum of unauthorized construction by the positive
averments/depositions made by him as well as documents proved on record i.e. the report of
defendant no. 2 and photographs. These photographs as is evident from the record were
never challenged/disputed during the trial and they go on to prove the extent of construction
raised by the defendant no. 1.

32. As already discussed above that despite restrain order passed by this court on 14.08.2014
the defendant no. 1 continued with the construction activities and completed the
construction. This act is not only contemptuous but also shows that the defendant no. 1 has
no regard to the law of the land/the authority of the court. Order dated 14.08.2014,
06.09.2014, report of the Local Commissioner leaves no doubt that the defendant no. 1 CS
No. 274/14 18/32 undermining the authority of the court and in a contemptuous manner
flouting all laws carried on the illegal/ unauthorized construction. In fact defendant no. 1
who examined herself as DW1 was confronted with the photographs Ex. PW1/D1 (colly)
which prove the factum of continuance/completion of unauthorized construction by her and
it was after the confrontation that defendant no. 1 deliberately did not tender herself/made
herself available for the cross examination. She evaded further cross examination after being
confronted with above photographs which creates serious doubts upon the demeanor of said
witness. At this stage it will be worthwhile to go through the observations made in  Martand
Pandharinath Chaudhari vs. Radhabai Krishnarao Deshmukh , AIR 1931 Bombay 97,
wherein it was held as under: "It is the bounden duty of a party personally knowing the facts
and circumstances, to give evidence on his own behalf and to submit to cross examination
and his nonappearance as a witness would be the strongest possible circumstance which will
go to discredit the truth of his case."

33. In Pranballav Saha & Anr. vs. Sm. Tulsibala Dassi & Anr ., AIR 1958 Cal. 713 it was
held as under: "The very fact that the defendant neither came to the box herself nor called
any witness to contradict evidence given on oath against her shows that these facts cannot be
denied. What was prima facie against her became conclusive proof by her failure to deny.

34. The Allahabad High Court in Arjun Singh vs. Virender Nath CS No. 274/14 19/32 and
another , AIR 1971 Allahabad 29 , held that : ".........If such a party abstains from entering the
witness box it must give rise to an inference adverse against him."

35. A Division Bench of the Punjab & Haryana High Court also in Bhagwan Dass vs.
Bhishan Chand and others , AIR 1974 Punjab & Haryana 7, drew a presumption
under Section 114 of the Evidence Act that if a party does not enter into the witness box, an
adverse presumption has to be drawn against that party.
36. In Dever Park Builders Pvt Ltd & Ors vs Madhuri Jalan & Ors AIR 2002 Calcutta 281 it
was held as under: "there is no provision under the law that if witness is not cross examined,
either in full or part, his evidence would be absolutely rendered inadmissible. Further how
much weight should be attached, it is to be decided considering all facts and circumstances
surrounded it."

37. As far as the arguments that the plaintiff had concealed material facts and has not
approached the court with clean hands as he is residing in basement which is not
permissible/is against the municipal byelaws and therefore not entitled to the equitable relief
are concerned, I find no merits in the same. Firstly, the defendants could not prove that the
plaintiff is residing in the basement as alleged. The plaintiff repeatedly claimed that he is
residing in the lower ground floor and not the basement. None of the CS No. 274/14 20/32
defendants could prove that the plaintiff was indeed residing in the basement and not the
lower ground floor. Neither any witness/official was examined nor any record proved in this
regard. Furthermore, it could not be established that the said portion could not be used as a
residence if indeed it was allegedly used as a residence. Secondly, even if it is admitted
(though not proved by the defendants) that the plaintiff is residing in the basement it is the
admitted case of the defendants that the property was constructed 9 years back. That is a
pretty long period and no purpose shall be served by agitating the same now more so when
neither of the defendants brought/took any action against the plaintiff. Thirdly, no doubt that
the law is well settled that a person who seeks equity must do equity. A person who seeks
equity must come with clean hands and must act in a fair and equitable manner. Reliance
may be placed upon the law laid down by the Hon'ble Apex Court in AIR 2003 SCW 1561
titled as Canara Bank and Ors. v. Debasis Das and Ors, Mahabir Prasad Jain v. Ganga
Singh , AIR 1999 SC 3873, The Hon. High Court of Delhi in M/s Seemax Construction (P)
Ltd. v. State Bank of India , AIR 1992 Delhi 197 and Kimti Lal Rahi v. Union of India , AIR
1993 Delhi 211.

38. However the law is equally well settled that the court may or CS No. 274/14 21/32 may
not exercise its discretion in favour of a person who has not approached the court with clean
hands. Merely because the person has not approached the court with clean hands or has
concealed certain facts that by itself does not take away the discretion which vests in the
court. Overall facts and circumstances of the case have to be seen. Merely because the
plaintiff might have been at fault does not mean that in all cases the relief shall be denied to
him even if otherwise he is able to squarely make out the case for grant of relief. The rule as
above and the law laid down in the above rulings makes it amply clear that the relief cannot
be sought by the plaintiff as a matter of right when his conduct has not been fair but the court
may in given case still exercise the power and grant the discretionary relief. In the case at
hand even if it is admitted to be correct that the plaintiff was residing in the basement which
unit/area/portion could not be used as a dwelling/residential unit (though the defendants
failed to prove the same) still in the given facts and circumstances of the case, the
contemptuous act of the defendant is sufficient to exercise the power to grant the relief as
prayed for. Doing otherwise would render the law of the land and the authority of the court
toothless and may prove as an encouragement to other wrongdoers who are bent upon into
reducing the National Capital Territory as a slum/den of unauthorized construction.
Disobedience to orders of the court undermine the authority and the dignity of the court and
if the authority of the court is CS No. 274/14 22/32 undermined or impeded the fountain of
justice get sullied creating distrust and disbelieve in the minds of the litigants and public at
large and sows seeds for persons with similar propensity to undermine the authority of the
court or the judiciary as a whole. Reliance may be placed upon the law laid down in
Baradakanta Vs. Bhim Sen Dixit 1972 AIR 2466 and Dr. D.C. Saxena Vs. Hon'ble the Chief
Justice of India decided on 19.07.1997.

39. It will also be worthwhile here to remember the observations made by Hon. Apex Court
in Dipak Kumar Mukherjee vs Kolkata Mun.Corp.& Ors on 8 October, 2012 wherein it was
held as under: "Unauthorized construction of buildings not only destroys the concept of
planned development which is beneficial to the public but also places unbearable burden on
the basic amenities and facilities provided by the public authorities. At times, construction of
such buildings becomes hazardous for the public and creates traffic congestion. Therefore, it
is imperative for the concerned public authorities not only to demolish such construction but
also impose adequate penalty on the wrongdoer. In last four decades, the menace of illegal
and unauthorised 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 (1) K. Ramadas
Shenoy v. Chief Officers, Town Municipal Council (1974) 2 SCC 506; (2) Virender Gaur v.
State of Haryana (1995) 2 SCC 577; (3) Pleasant Stay Hotel v. Palani Hills Conservation
Council (1995) 6 SCC 127; (4) Cantonment Board, Jabalpur v. S.N. Awasthi 1995 Supp.(4)
SCC 595; (5) Pratibha Coop.

CS No. 274/14 23/32 Housing Society Ltd. v. State of Maharashtra (1991) 3 SCC 341;
(6) G.N. Khajuria (Dr) v. Delhi Development Authority (1995) 5 SCC 762; (7) Manju Bhatia
v. New Delhi Municipal Council (1997) 6 SCC 370; (8) M.I. Builders Pvt. Ltd. v. Radhey
Shyam Sahu (1999) 6 SCC 464; (9) Friends Colony Development Committee v. State of
Orissa (2004) 8 SCC 733; (10) Shanti Sports Club v. Union of India (2009) 15 SCC 705 and
(11) Priyanka Estates International Pvt. Ltd. v. State of Assam (2010) 2 SCC 27.

3. In K. Ramadas Shenoy v. Chief Officers, Town Municipal Council (supra), this Court
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 Court enforces the performance of statutory duty by public bodies as obligation to rate
payers who have a legal right to demand compliance by a local authority with its duty to
observe statutory rights alone. The Scheme here is for the benefit of the public. There is
special interest in the performance of the duty. All the residents in the area have their
personal interest in the performance of the duty. The special and substantial interest of the
residents in the area is injured by the illegal construction."
4. In Pratibha Coop. Housing Society Ltd. v. State of Maharashtra (supra), this Court
approved the order passed by the Bombay Municipal Corporation for demolition of the
illegally constructed floors of the building and observed:

"Before parting with the case we would like to observe that this case should be a pointer to
all the builders that making of unauthorised constructions never pays and is against the
interest of the society at large. The rules, regulations and bye laws are made by the
Corporations or development authorities taking in view the larger public interest of the
society and it is the bounden duty of the citizens to obey and follow such rules which are
made for their own benefits."

CS No. 274/14 24/32

5. In Friends Colony Development Committee v. State of Orissa (supra), this Court noted
that large number of illegal and unauthorised constructions were being raised in the city of
Cuttack and made the following significant observations:

".........Builders violate with impunity the sanctioned building plans and indulge in deviations
much to the prejudice of the planned development of the city and at the peril of the occupants
of the premises constructed or of the inhabitants of the city at large. Serious threat is posed to
ecology and environment and, at the same time, the infrastructure consisting of water supply,
sewerage and traffic movement facilities suffers unbearable burden and is often thrown out
of gear........... Though the local authorities have the staff consisting of engineers and
inspectors whose duty is to keep a watch on building activities and to promptly stop the
illegal constructions or deviations coming up, they often fail in discharging their duty. Either
they don't act or do not act promptly or do connive at such activities apparently for
illegitimate considerations. If such activities are to stop some stringent actions are required to
be taken by ruthlessly demolishing the illegal constructions and noncompoundable
deviations.............

In all developed and developing countries there is emphasis on planned development of cities
which is sought to be achieved by zoning, planning and regulating building construction
activity. Such planning, though highly complex, is a matter based on scientific research,
study and experience leading to rationalisation of laws by way of legislative enactments and
rules and regulations framed thereunder. Zoning and planning do result in hardship to
individual property owners as their freedom to use their property in the way they like, is
subjected to regulation and control. The private owners are to some extent prevented from
making the most profitable use of their property. But for this reason alone the controlling
regulations cannot be termed as arbitrary or unreasonable. The private interest stands
subordinated to the public good............. Building regulations also help in reduction or
elimination of fire hazards, the avoidance of traffic dangers and the lessening of prevention
of traffic congestion in the streets and roads. Zoning and CS No. 274/14 25/32 building
regulations are also legitimised from the point of view of the control of community
development, the prevention of overcrowding of land, the furnishing of recreational facilities
like parks and playgrounds and the availability of adequate water, sewerage and other
governmental or utility services.

Structural and lot area regulations authorise the municipal authorities to regulate and restrict
the height, number of storeys and other structures; the percentage of a plot that may be
occupied; the size of yards, courts and open spaces; the density of population; and the
location and use of buildings and structures. All these have in our view and do achieve the
larger purpose of the public health, safety or general welfare. So are front setback provisions,
average alignments and structural alterations. Any violation of zoning and regulation laws
takes the toll in terms of public welfare and convenience being sacrificed apart from the risk,
inconvenience and hardship which is posed to the occupants of the building." (emphasis
supplied)

6. In Shanti Sports Club v. Union of India (supra), this Court approved the order of the Delhi
High Court which had declared the construction of sports complex by the appellant on the
land acquired for planned development of Delhi to be illegal and observed:

"In the last four decades, almost all cities, big or small, have seen unplanned growth. In the
21st century, the menace of illegal and unauthorised constructions and encroachments has
acquired monstrous proportions and everyone has been paying heavy price for the same.
Economically affluent people and those having support of the political and executive
apparatus of the State have constructed buildings, commercial complexes, multiplexes,
malls, etc. in blatant violation of the municipal and town planning laws, master plans, zonal
development plans and even the sanctioned building plans. In most of the cases of illegal or
unauthorised constructions, the officers of the municipal and other regulatory bodies turn
blind eye either due to the influence of higher functionaries of the State or other extraneous
reasons............. The people belonging to this class do not realise that the constructions made
CS No. 274/14 26/32 in violation of the relevant laws, master plan or zonal development
plan or sanctioned building plan or the building is used for a purpose other than the one
specified in the relevant statute or the master plan, etc., such constructions put unbearable
burden on the public facilities/amenities like water, electricity, sewerage, etc. apart from
creating chaos on the roads................ This Court has, from time to time, taken cognizance of
buildings constructed in violation of municipal and other laws and emphasised that no
compromise should be made with the town planning scheme and no relief should be given to
the violator of the town planning scheme, etc. on the ground that he has spent substantial
amount on construction of the buildings, etc. Unfortunately, despite repeated judgments by
this Court and the High Courts, the builders and other affluent people engaged in the
construction activities, who have, over the years shown scant respect for regulatory
mechanism envisaged in the municipal and other similar laws, as also the master plans, zonal
development plans, sanctioned plans, etc., have received encouragement and support from
the State apparatus. As and when the Courts have passed orders or the officers of local and
other bodies have taken action for ensuring rigorous compliance with laws relating to
planned development of the cities and urban areas and issued directions for demolition of the
illegal/unauthorised constructions, those in power have come forward to protect the
wrongdoers either by issuing administrative orders or enacting laws for regularisation of
illegal and unauthorised constructions in the name of compassion and hardship. Such actions
have done irreparable harm to the concept of planned development of the cities and urban
areas. It is high time that the executive and political apparatus of the State take serious view
of the menace of illegal and unauthorised constructions and stop their support to the lobbies
of affluent class of builders and others, else even the rural areas of the country will soon
witness similar chaotic conditions."

7. In Priyanka Estates International Pvt. Ltd. v. State of Assam (supra), this Court refused to
order regularisation of the illegal construction raised by the appellant and observed:

"It is a matter of common knowledge that illegal and unauthorised CS No. 274/14 27/32
constructions beyond the sanctioned plans are on rise, may be due to paucity of land in big
cities. Such activities are required to be dealt with by firm hands otherwise
builders/colonisers would continue to build or construct beyond the sanctioned and approved
plans and would still go scotfree. Ultimately, it is the flat owners who fall prey to such
activities as the ultimate desire of a common man is to have a shelter of his own. Such
unlawful constructions are definitely against the public interest and hazardous to the safety of
occupiers and residents of multistoreyed buildings. To some extent both parties can be said
to be equally responsible for this. Still the greater loss would be of those flat owners whose
flats are to be demolished as compared to the builder."

8. What needs to be emphasised is that illegal and unauthorised constructions of buildings

and other structure not only violate the municipal laws and the concept of planned
development of the particular area but also affect various fundamental and constitutional
rights of other persons.

40. [1999 (6) In M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu SCC 464] made in a different
context the Hon'ble Apex Court observed as under: "This Court in numerous decisions has
held that no consideration should be shown to the builder or any other person where
construction is unauthorized. This dicta is now almost bordering the rule of law.........
Unauthorised construction, if it is illegal and cannot be compounded, has to be demolished.
There is no way out. Judicial discretion cannot be guided by expediency. Courts are not free
from statutory fetters. "

41. In the case titled as Smt. Marriamma Vs. C.P. Thomas AIR 2003 NOC 483 (Ker.) it has
been observed that when a citizen CS No. 274/14 28/32 starts construction in violation of
municipal regulations, a single individual can file a simple suit for injunction to restrain the
wrongdoer from proceeding with such an illegal act.

42. Reliance may also be placed upon the law laid down in Onkar Nath Vs. Ram Nath Gupta,
AIR 1985 Delhi 293, Krishna Kali Mallik Vs. Babu Lal Shaw, AIR 1965 Cal 148, Smt. And
Lhamu Vs. Smt. Ladena, AIR 1983 Sikkim 5, and K. Ramadas Shenoy Vs. Chief Officer,
Town Municipal Council, Udipi, AIR 1974 SC 2177, it was observed as under: "..........The
Municipal Authorities owe a duty and obligation under the statute to see that the residential
area is not spoil 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........

43. This court is mindful of the National Capital Territory of Delhi Laws (Special
Provisions) Section Act, 2011 however the said act/ beneficial provisions does not come to
the aid/rescue of defendant no. 1 as in the case at hand the construction activity commenced
in July 2014 and continued till September/October 2014 and way beyond as is proved from
the report of Local Commissioner i.e. Ex. PW1/4 and Ex. PW1/D1. No protection under CS
No. 274/14 29/32 the above Act is available to the defendant no. 1.

44. Hence in view of above discussion both the issues are decided in favour of plaintiff and
against the defendants. The plaintiff having successfully established/proved on record the
factum of unauthorized/illegal construction raised by the defendant no. 1 at third floor of
property bearing no. E6, Greater Kailash Enclave I, New Delhi110048 i.e. over and above
the second floor is entitled to the decree of permanent and mandatory injunction as prayed
for. Accordingly defendant no. 1 is directed to immediately stop construction activity of the
3rd floor i.e. over and above the second of the above/suit property and is restrained from
carrying on any further construction thereupon. Defendant no. 2 i.e. SDMC/concerned
authority is directed to remove the unauthorized construction as above within 3 months from
today. The court expects/hopes and trusts that defendant no. 2 SDMC/MCD shall wake up
from its slumber and take the necessary/ appropriate action against the defendant no. 1/
unauthorized construction raised by her. The statutory body/authority has failed to do its duty
and so has the SHO of the concerned area and in fact as discussed in paragraph no. 26 the
construction activity could not have been carried out without their collusion. The state of
affairs of both the departments has been appalling which has resulted into the restrain orders
being flouted in the CS No. 274/14 30/32 most contemptuous manner. In fact the case calls
for a necessary action against the concerned JE as well as the SHO as they are the two
officials squarely responsible for checking the rampant/unauthorized construction in their
area. Recently, the Hon. High court of Delhi has taken a very strict view against menace of
unauthorized construction and went on to direct the CBI to investigate the matter so as to
unearth the nexus/ collusion between the builder lobby, local police and the MCD. Reliance
may be placed upon the orders dated 23.11.2015, 06.07.2015, 18.08.2015, 15.10.2015 passed
by the Hon'ble High Court of Delhi in Writ Petition (C) No. 10794/15 and Writ Petition (C)
No. 6322/15 and CM no. 11506/15. Copy of judgment be sent to the Commissioner, SDMC
as well as the Commissioner, Delhi Police for their knowledge and necessary action at their
end with intimation to the court.

44. Decree sheet be prepared accordingly. File be consigned to Record Room.

Announced in the open court

(Gaurav Rao)
on 31st March 2016
SCJ/RC/SouthEast
 Sake
t Courts/New Delhi

CS No. 274/14
31/32
C.S. No. 274/14

31.03.2016
Present: Ld. Counsel Sh. Mohit Sharma for the plaintiff
along with
son of plaintiff.

None for defendant no. 1. Defendant no. 1 is already exparte.

Ld. Counsel Sh. Rajeev Bhardwaj for the defendant no. 2 along with JLO Sh. D. Choudhary.

Final arguments heard.

Vide separate judgment announced in the open court, the suit of plaintiff has been decreed.
Decree sheet be prepared accordingly.

File be consigned to record room.

(Gaurav Rao) SCJ-Cum-RC(South-East) Distt.Courts, Saket,New Delhi.

31.03.201
6