The judgment emphasizes the importance of proving the legality of construction and highlights the misuse of office for personal gain.

VALMIKI J.MEHTA, J.

C.M. Appl. No. 45190/2017 (for exemption)

Exemption allowed, subject to all just exceptions.

C.M. stands disposed of.

RFA No. 1038/2017 and C.M. Appl. No. 45189/2017 (for stay)

1. This Regular First Appeal is filed under Section 96 of the Code of Civil Procedure, 1908 (CPC) by the appellants/defendant nos. 2 and 3 in the suit, impugning the judgment of the trial court dated 16.8.2017 by which the trial court has decreed the suit of the respondent nos. 1 and 2/plaintiffs by granting various reliefs of injunctions. The operative relief para of the impugned judgment reads as under:-

“RELIEF

In view of the above, suit of the plaintiffs is allowed and decree of permanent injunction is hereby passed in favour of plaintiffs and against defendants thereby restraining the defendants, their agent, assigns, employee etc. from demolishing the original existing roof and the iron jaal over the common passage/Chhatta existing between the property No. 329 and property No. 331 to 337, Kucha Ghasi Ram, Chandini Chowk, Delhi-6 under the notice dt 13.06.2001 issued under Section 348 and 349 of DMC Act.

A decree of permanent injunction is hereby passed in favour of plaintiffs and against defendants thereby restraining the defendants, their agent, assigns, employee etc. from regularising the construction over the common passage/Chhata existing between the property No. 329 and property No. 331 to 337, Kucha Ghasi Ram, Chandini Chowk, Delhi-6.

A decree of mandatory injunction is hereby passed in favour of plaintiffs against defendants thereby directing defendant No.1 to remove the entire construction over the common passage/Chhatta existing between the property No. 329 and property No. 331 to 337, Kucha Ghasi Ram, Chandini Chowk, Delhi-6. It is made clear that defendant No.1 will not do an eyewash of removal by only puncturing here and there the unauthorised construction, it will remove the complete construction only over the Chhatta. Defendants No. 2 and 3 are restrained from obstructing the demolition activities to be carried out in pursuance to present judgment by defendant No.1 over the Chhatta in question existing between the property No. 329 and property No. 331 to 337, Kucha Ghasi Ram, Chandini Chowk, Delhi-6. It is further made clear that in case unauthorised construction could not be demolished on account of operation (if in operation as on date) of The National Capital Territory of Delhi Laws (Special Provisions) Second Act 2011, the property be kept booked for demolition as per DMC Act and be dealt with in accordance with the provisions therein.

Copy of this judgment be send to Commissioner, North Delhi Municipal Corporation to direct inquiry under his supervision as to how the doors and windows of MCD School existing in property No.329 (or 328, Kucha Ghasi Ram, Chandini Chowk, Delhi) were virtually closed by allowing the raising of wall/construction over the Chhatta/common passage existing between the property No. 329 and property No. 331 to 337, Kucha Ghasi Ram, Chandini Chowk, Delhi-6 and place report of enquiry to this Court or to the successor of this Court within three months. He will also direct enquiry as to why no official were examined in the present case to justify their issuance of notice under Section 348/349 dt 13.06.2001 in respect over common Chhatta.

Cost of the suit is awarded to the plaintiffs.

Decree sheet be prepared accordingly.

Ahlmad is directed to prepare a separate miscellaneous file for the purpose enquiry report to be submitted by Commissioner of North Delhi Municipal Corporation within three months and list the same for 01.12.2017 File be consigned to Record Room after necessary-compliance.”

2. The only issue which was called upon for decision in the subject suit filed by the respondent nos. 1 and 2/plaintiffs, as also in this first appeal, was/is whether the construction made by the appellants/defendant nos. 2 and 3 on the common passage was a new construction or it was only renovation of