JUDGMENT
B.N. Kirpal, J.
(1) This is one of those cases where a rich litigant feels, and in fact convinces himself, that not only there is no law for the rich but such a litigant can also, with impunity and without batting an eyelid, try and mislead the Court at every juncture. The facts, as will presently be set out, clearly bring this to light.
(2) The plaintiff has filed the present suit along with an application under Order 39 Rules I and 2 and the prayer in the suit is for a permanent injunction restraining the defendant from taking demolition action or scaling of the premises bearing No. 7-A/1, W.E.A. Karol Bagh, New Delhi. The averments made in the plaint are that these premises were purchased by the plaintiff vide a registered deed dated 7th April, 1983 and thereafter a plan was submitted for demolishing the old structure and constructing a new building. It is alleged in the plaint that the building plans were approved by the Corporation and thereafter the building was constructed as per the building plans. It is further the case of the plaintiff that the building, when completed, was inspected and compounding fee of Rs. 210.00 was levied which meant that the building had been constructed according to the plans. According to the plaintiff, the electricity and water connections were also installed and the house tax has also been paid and the compounding fee was payable in respect of minor deviations which had taken place. The further case of the plaintiff is that the completion certificate was granted on 1st January, 1988 which conclusively proved that the building had been constructed according to the sanctioned plan.
(3) According to the plaint, the plaintiff was surprised to find a demolition squad reaching the site on 24th April, 1988 attempting to demolish some portion the building which had been constructed. It is pleaded that no notice as prescribed under Section 343 of the Municipal Corporation Act had been served and the intended action which has been taken is illegal especially when the building has been constructed as per the sanctioned plan evidenced by the completion certificate.
(4) On the aforesaid allegations being made, ad interim ex parte injunction was issued on 27th April, 1988. It may here be stated that this was one of the suits which was filed along with two other suits Nos. 892 and 896 of 1988 where similar allegations were made and ex parte injunctions obtained.
(5) After notice was served, counsel for the defendant appeared and in Court it was stated by the plaintiffs counsel that the premises which were in existence were in accordance with the completion drawings which had been filed by the plaintiff prior to obtaining the completion certificate. It may here be explained that the Corporation Bye-laws require the owner to submit completion drawings which would signify the building as constructed by him and the building is inspected with relation to the completion drawings and if the building is as per the completion drawings and the completion drawings are not very much at variance with the building plans which bad been sanctioned earlier, a completion certificate is granted. The contention of counsel for the Corporation was that the building had not been constructed as per the completion drawings which had been furnished by the plaintiff himself.
(6) In view of the fact that the stand of the plaintiff and the defendant was at variance with each other, a Local Commissioner was appointed, with the consent of both the parties. Shri R.K. Aggarwal, Advocate was asked to go to the premises in question along with the completion drawings and to submit his report indicating as to whether the building which had been constructed is as per the completion drawings, as had been asserted by the counsel for the plaintiff.
(7) Shri Aggarwal went to the premises in question as well as the premises which were subject matter of the other suits. Separate reports were filed by Shri Aggarwal. The report of Shri Aggarwal was not as comprehensive as in Suit No. 896 of 1988. It was, however, stated in this report that the owner had shifted the open space to the back of the building which was found to be 23 ft. in height, 6 ft, in width and 3 ft. in length and there was another open space left in the middle of the building with a size of 6 ft. x 6 ft. It was further stated that there were deviations from the completion plan but the report of the local Commissioner did not specifically indicate the extent of such deviations. At this stage, it may be noted that on 12th August 1988 the Local Commissioner stated in Court that except for the open area mentioned in the report dated 23rd May, 1988 the plaintiff had covered the entire plot and constructed thereon including the basement. On 23rd May, 1988 statement of the plaintiff was recorded and it was stated by him that the building which existed at site was according to the completion drawings “but there may be some difference”. According to plaintiff the difference may be 10%.
(8) On 4th August, 1988 an offer was made by the counsel for the defendant to the effect that the plaintiff may, within a stipulated period, restore the building to the position as per the completion drawings submitted by the plaintiff himself. On 5th August, 1988 counsel for the plaintiff took time to consult an architect to determine “whether it is possible to restore the building to the position as per the completion drawing”. On the next date of hearing i.e. on 12th August, 1988, learned counsel for the plaintiff stated that he had consulted the architects and “according to them it is not possible to bring the building to the position as inculcated in the completion drawings”. from theaforesaid,it is clear that not only there weredeviations,which possibly cannot be regarded as minor from the completion drawings but the deviations were such that the building could not be brought to the position as indicated in the completion drawings.
(9) On the last date of hearing it was represented in Court, on instructions received by the learned counsel for the plaintiff, that the building was in actual occupation of the tenants. Counsel for the defendant had suggested that without prejudice to its contentions, the defendant might be willing to give a fresh notice under Section 343 provided the defendant is allowed to seal the building which it can seal even without notice under the provisions of Section 345-A of the said Act. The case of the defendant was that the building was not in occupation and was lying vacant. Once again, a Local Commissioner was appointed and was required to go to the premises immediately. Report of the Local Commissioner dated 25th August, 1988 has been filed on the record. With regard to the basement, it has been stated by the Local Commissioner that the same is lying with doors open. He has further stated that there are no electrical fixtures there but only two bulbs are banging. On the ground floor, it appears that there is some office in existence along with one small T.V. one V.C.R., one fridge and two telephones. According to the Local Commissioner, the office has been running for the last one or two months. It has further been noted that the office does not contain any signboard indicating as to whose office it is.
(10) In the mezzanine floor, one single bed one dressing table and some rugs were found and two persons (one woman and one girl) insisted that they were living there but when the Commissioner asked as to where was the kitchen, they kept quiet. Then the plaintiff is stated to have appeared and stated that the servants prepare the food in the servants room. The Commissioner found only the belongings of the servant to be lying in the servant room along with two or three utensils. Two other rooms in the mezzanine floor were lying vacant with the doors unlocked. Similar was the position on the first floor which contained spare furniture. According to the Commissioner’s report the second floor was wholly vacant, with the rooms open without locks. The Commissioner then concludes his report with the following observations: “IT may be mentioned here that windows of all the rooms on the Mezzanine floor, first floor, second floor are without shutters, all the rooms not fitted with any electrical fixtures, the electrical wires are hanging loose in locks, no switch boards fitted. There are no household articles, no clothes, no utensils in any of the rooms. The corridors on all these three floors are uneven and without floorings. Stone slabs are lying in corridors. However, only one or two electric bulbs with extended wire are hanging here and there on these floors for lighting purpose. All the rugs as spread in all the rooms are of the same size and design and seem to have been hired from some Tent House.”
(11) The aforesaid facts clearly tell a very sorry tale.
(12) A deliberate attempt has been made on every occasion to mislead the Court. First, with regard to the construction which existed at the site, the counsel for the plaintiff had insisted on 19th May, 1988, and had made a statement in Court to the effect that the building had been constructed as some extent sought to be substantiated by the statement of Shri Anand Swarup Malik on 23rd May. 1988. Shri Malik admitted in his statement that there were certain deviations from the completion drawings. The report and the statement of Shri R.K. Aggarwal, the first Local Commissioner, clearly show that the building had not been constructed as per the completion drawings. Furthermore, when opportunity was given to the plaintiff to demolish a part of the unauthorised construction in order to bring it in line with the completion drawings, the counsel for the plaintiff stated that after having consulted the Architect it appears that it is not possible to do so. This clearly proves the contention of the defendant that the unauthorised construction is to such an extent that the plaintiff cannot demolish any part of the construction so as to bring it within the permissible limits.
(13) It appears from the reports that except for a small open area which has been left on the ground floor having a width of 6 x 3ft at the rear and 6 x 6ft. in the middle, there has been construction on the rest of the area of land. According to the Municipal bye-laws the permissible area which can be covered on the ground floor is 66.6%. What the plaintiff has covered is practically 100%. Furthermore, the basement which was permissible was 910.75 sq. ft. as per the written statement filed by the defendant, but the basement which has been actually constructed is much more than that, nearly 100% of the area of the plot. Similarly, there is excess construction on the mezzanine and the first floor. The Municipal bye-laws do not permit more than a barsati being constructed on the second floor but in the present case the plaintiff has constructed 100%.
(14) It may here be stated that according to Shri Sabharwal what is regarded as mezzanine floor by the plaintiff is in fact the first floor and in this way the top floor which is constructed is really the third floor which is not permissible by any bye-laws.
(15) The plaintiff has admittedly, therefore, constructed a building in gross violation of the building bye-laws with no regard to the sanctioned plan or the completion plan submitted and in order to cover up and mislead the court, wrong statements have been made by contending that the building has been constructed as per the completion drawings. The falsehood has become apparent when the Local Commissioner was sent and report received.
(16) Even thereafter, counsel for the plaintiff made valiant attempt to try and persuade that another opportunity be given to represent its case before the defendant. According to the defendant, a valid notice under Section 343 was sent, the owner/occupier refused to accept the notice and thereafter the same was pasted. Without prejudice to its contention that a valid notice has been served, Mr. Sabharwal was willing to issue another notice provided the building was allowed to be sealed because, according to the defendant, building was not yet occupied. As already noted, on the last date of hearing yet another statement was made to the effect that the building is in occupation of tenants. The plaintiff may possibly not have visualised that yet another Local Commissioner would be appointed. A local Commissioner was appointed whose report was received and has been referred to hereinabove. The report clearly shows that the building is lying vacant except for a portion on the first floor which seems to be in occupation. An attempt had also been made to mislead the Local Commissioner when it was represented to him that people were living there. The local Commissioner has reported that he did not find any clothes or utensils or other household articles at the said premises. He has further noted that electrical wires are hanging loose and no electrical fittings exists. Even the corridors are without flooring.