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HIGH COURT OF DELHI
Manmohan Singh, J.
Arvind Singhal & Ors. - Appellant
Versus
Max Therapiya Limited & Ors. - Respondent
CS(OS) No. 1724/2014
Decided On : 15-10-2014
Civil Procedure Code, 1908 - Section 9 - Specific Relief Act, 1963 - Section 38 - Residential property - Repairs and construction works - Maintainability of suit - Suit property is a residential property wherein defendant No.1 has undertaken heavy repairs and construction works in contravention of the Sanctioned Building Plan - Defendant Nos. 1 and 2 were continuing repairs and construction in the suit property which as per the plaintiffs are illegal and unauthorized - Civil Suit is maintainable and is not hit by Section 9 of CPC and under Section 38 of the Specific Relief Act, 1963 - A perpetual injunction can be granted to prevent the breach of an obligation existing in favour of a party whether expressly or by implication - Facts are disputed facts which cannot be decided in the writ petition - Plaint cannot be rejected - Objection raised by the defendant No.1 in the written statement shall remain intact and would be decided at the appropriate stage of the suit.
Delhi Municipal Corporation Act, 1957 - Section 347E, 347B(1) - Ancient Monuments and Archaeological Sites and Remains Act, 1958 - Section 20-O - Civil Procedure Code, 1908 - Order 39 Rules 1, 2 - Order 26 Rule 9 - Order 7 Rule 11 - Section 80(2) - ASI Rules, 2011 - Rule 6(VI) R/w rule 8 - Injunction - Declaration - Renovation - Interim order - Denial of - Plaintiffs are the owners and residents of property Nos.3, 10, 11 and 12 - Allegation - Suit property is a residential property wherein defendant No.1 has undertaken heavy repairs and construction works in contravention of the Sanctioned Building Plan - MCD and ASI are the competent/statutory authorities exercising jurisdiction over the issue - Once the said authorities have granted permission to the defendant No.1 after carrying out inspection of the premises on several occasions - There is an order dated 29th September, 2014 passed by Asstt. Engineer Building South Zone and held that site got inspected by the concerned JE (B) - It has been reported that the existing construction is well within the envelop and does not violate the sanction and no new additional coverage was noticed at site - Renovation carried out falls within the definition of clauses 6.4.1 of Building Bye Laws, 1983 - No interim orders are called for - Plaintiffs are at every liberty to challenge the same before higher authority in accordance with law.
Delhi Municipal Corporation Act, 1957 - Section 347E, 347B(1) - Ancient Monuments and Archaeological Sites and Remains Act, 1958 - Section 20-O - Civil Procedure Code, 1908 - Order 39 Rules 1, 2 - Illegal construction - Interim relief - Permission - Illegal repairs and construction works by the defendants - Objection by the plaintiff - MPD-2021 and DMC Act does not provide that the owner of property is not entitled to use and utilize the same for different purpose other than residential - If the same is permissible under MPD-2021 for any lawful purpose in accordance with existing law and rules - Once the Competent Authority pass an order after inspection and examination of the rules, the apprehension of the neighbours have no meaning - Neighbours cannot seek the interim relief except to challenge the order of the Competent Authorities in higher Court in accordance with law - No specific written permission is granted by the MCD - Application of the defendant No.1 for the said purposes and objections raised by the plaintiffs are pending - Incase all requirements are fulfilled, the permission can be granted - It is directed that defendant No.3 to pass an appropriate order after hearing in accordance of the relevant provisions of MPD-2021 and under the MCD Act - If necessary, JE (B) be allowed to inspect the site under the compliance of clause 15.7.3 (iii) of MPD-2021 - All the pending applications are disposed of.
1. By this order I propose to decide all the pending applications in this suit for declaration, permanent and mandatory injunction filed by the plaintiffs against the defendants in respect of property bearing No. 2, Padmini Enclave, Aurobindo Marg, New Delhi– 110016 (hereinafter referred to as “the suit property”).
2. The details of the applications are given as under :
The following applications are pending disposal at this stage:
(i) I.A. No. 10958/2014 under Order 39 Rules 1 and 2 CPC.
(ii) I.A. No. 10959/2014 under Section 478 (3) of the DMC Act read with Section 80(2) and Section 151 CPC.
(iii) I.A. No. 11975/2014 under Order 26 Rule 9 CPC.
(iv) I.A. No. 13602/2014 under Section 151 CPC.
(v) I.A. No. 14450/2014 under Order 7 Rule 11 read with Section 151 CPC.
3. Brief facts are that ‘Padmini Enclave’ is a colony adjacent to Q- Block of Hauz Khas on Aurobindo Marg, New Delhi –110016 that comprises of only 12 dwelling units all of which are residential since the said colony was carved out only for residential purposes as per the approved Lay-Out Plan sanctioned by defendant No. 3 vide Resolution No. 13 dated 30th July, 1958. The said colony comprises of 20 bighas of land in Khasra Nos. 370 and 371 min in Village Kharera, Tehsil Mehrauli, Delhi.
4. The plaintiffs are the owners and residents of property Nos. 3, 10, 11 and 12, Padmini Enclave, Aurobindo Marg, New Delhi – 110016. Defendant No. 1 is the lessee and defendant No. 2 is the owner and lessor of the suit property.
5. The defendant No. 1 has taken on lease the suit property measuring 1169 sq. yards, the built-up area of about 6900 sq. ft. comprising of ground floor, first floor and second floor including the entire terrace and all open spaces within the suit property, for the purposes of running an Ayurvedic Well-beinf Healing and Spa vide registered lease agreement dated 5th March, 2014 from defendant No. 2.
6. Defendant No. 3 is South Delhi Municipal Corporation, defendant No. 4 is Ministry of Culture, Government of India and defendant No. 5 is the National Monuments Authority. The defendant No. 6 is Delhi Jal Board.
7. The plaintiffs have alleged in the plaint that the suit property is a residential property wherein defendant No. 1 has undertaken heavy repairs and construction works in contravention of the Sanctioned Building Plan of the suit property sanctioned by the Municipal corporation of Delhi as well as the Master Plan of Delhi 2021 and the Zonal Development Plan of Zone ‘F’ (South Delhi) which earmarked the entire colony i.e. Padmini Enclave exclusively for residential use. Further, entries (xxxi) and (xxxii) of Notifications dated 15th September, 2006 for commercial streets in the Zonal Development Plan for Zone “F” excludes from its purview the properties from Red Light of Kaushalya Park to the Boundary of NCERT in Aurobindo Marg, thus the said area is completely covered under “residential” use.
8. It is also stated by the plaintiffs that vide Notification dated 16th June, 1992, an area extending upto 100 meters from limits of a nationally protected Monument has been declared to be a Prohibited Area and a further area upto 300 meters have been declared to be a Regulated Area by the Archaeological Survey of India. All 12 properties of the said colony i.e. Padmini enclave fall within the prohibited Area of 14th Century, nationally Protected Monument of “Idgah”. The only Authority to grant permissions for carrying out any construction activity in the Prohibited or Regulated area of a nationally Protected Monument is defendant No. 5 as per the Ancient Monuments and Archaeological Sites And Remains Act, 1958 as amended (hereinafter referred to as the “AMASR Act”).
9. It is the case of the plaintiffs that on 4th May, 2014, plaintiff No. 1 who is owner of the property adjacent to the suit property on observing and enquiring thereof came to know about the suit property being leased to defendant No. 1 by defendant No. 2 for commercial/non-residential purpos
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