Oral:

IA No.20773/2013

1. The suit is filed by the plaintiff seeking a decree of permanent injunction to restrain the defendant, etc. from carrying out construction or demolition of the nature set out in paragraph 5 of the plaint in the ground floor of the property bearing No. A-262, Ground Floor, Defence Colony, New Delhi. Other reliefs are also sought. The plaintiff is the owner of the first floor of the said property. The property is now a commercial property.

2. The present application is filed under Order 39 Rules 1 & 2 CPC for interim orders. It came up for hearing first on 19.12.2013. This court had noted the contention of the plaintiff that he has received information that some construction was being carried out in the suit property which was likely to damage the plaintiff’s property and endanger the structure of the plaintiff’s property. It was stated that some illegal brick wall had been raised on the rear set back and the defendant had removed some internal brick walls and three supporting pillars at the centre of the suit property gravely endangering the suit property. In view of the said averments, this court had passed an ex parte ad interim injunction against the defendant from removing/raising any pillar or wall in the suit property till further orders. A Local Commissioner was also appointed to make an assessment of the walls, pillars and other structures that that may have been removed, altered or added by the defendant and to also bring on record the current status of the property.

3. The defendant has filed her written statement. It is urged that the averments made in the plaint are bald and there is no shred of evidence to show removal of walls. Photographs have been filed to urge and show that there are no walls as claimed by the plaintiff right since 2008. The ground floor it is urged had been used as a showroom for cars and cars were parked in the hall area. It is further urged that the structure is structurally safe. The suit premises, it is stated, was purchased by the defendant on 'as is where is basis'. The same was initially leased out to an auto showroom-M/s Continental Auto Services from 01.07.2008 to 31.03.2010. Thereafter the suit premises was leased out from 27.06.2010 to 30.06.2013 to a restaurant, namely, Yoko Sizzlers. There has been a hall as is clear, it is stated, from the photographs and no alterations have been carried out in the suit premises. The site plan, it is urged, filed by the plaintiff is a fabricated document. Reliance is also placed on the report of the Local Commissioner who did not find any construction material or fresh construction activity on the suit premises to claim that the allegations made in the plaint about illegal construction being done are absolutely false. The defendant has also filed her reply to the application reiterating the averments made in the written statement as above.

4. Learned senior counsel appearing for the defendant has vehemently sought to argue that the entire contentions of the plaintiff are mischievous and fraudulent. No construction at any stage has been carried by the defendant to warrant passing of any interim orders whatsoever by this court. It is urged that the plaintiff has by making false statements managed to persuade this court to grant interim injunction which injunction is liable to be vacated forthwith. It is further vehemently and vociferously argued that in fact, it is the plaintiff who has carried out illegal and unauthorised construction on the first floor of the property which is in occupation of the plaintiff and hence, as a counter blast the plaintiff has filed the present suit. Reliance is placed on an application filed by the defendant IA No.13636/2014 whereby an injunction is sought to restrain the plaintiff from carrying out any further construction on the first floor of the suit property and to restore the suit premises to its original status.

5. It is necessary to first have a look at the subsequent developments that took place after the interim order was passed by this court on 19.12.2013.

6. On 25.03.2014 this court had noted the submissions of the plaintiff that the defendant had removed certain load bearing walls and pillars from the ground floor which position had been disputed by the defendant. This court appointed ITCOT Constancy and Services Limited, a Structural Engineer to inspect the property and ascertain the structural safety.

7. The Structural Engineer submitted his report pointing out that load bearing walls had been removed from the building and the existing structure is not safe. Relevant portion of the report dated 17.04.2014 reads as follows:-

'iii) Observations

Two nos. of load bearing walls at ground floor have been removed to create hall at ground level (marked on attached plant).

b. Load bearing wall (marked b) (Length 44 ft approx. (12ft + 12ft+ 10ft + 10ft)) between bedroom 1 & 2 and hall has been removed without providing any support to wall and slap at First Floor Level.

Conclusion: Capacities of both Steel Girders 1 and 2 are inadequate to support the slap and brick wall (marked a) as well as load bearing wall (marked b) above. Hence, the existing Structure is not safe.'

8. Pursuant to the above report this court on 17.07.2014 had noted that the defendant had no objections to comply with the recommendations as contained in the report of the civil engineer and that the strengthening work would be done under supervision of the Structural Engineer.

9. Learned senior counsel for the plaintiff has very fairly stated today that the recommendations of the Structural Engineer to ensure that the structural safety of the building does not continue to remain in danger have been complied with by the defendant.

10. Pursuant to the said development, the defendant has argued that apart from the submission noted above, now there are no reasons for the interim order to continue and that the same be vacated. It is urged that the defendant has to carry some re-construction on the ground floor to enable the defendant to let out the property and there are no reasons now to prevent the defendant from doing so. In the course of the arguments, it was suggested to the learned senior counsel for the defendant that details of construction/demolition that the defendant proposes to carry out be provided to the court. Today in court a map has been provided which shows a rear wall which is marked in blue which is sought to be removed by the defendant.

11. Learned senior counsel for the defendant has vehemently argued that this wall sought to be removed is not a load bearing wall as it has a depth of only about 4 feet and hence no prejudice will be caused to the plaintiff in case the defendant is permitted to remove the said wall. Other contentions, as stated above have been reiterated.

12. Learned senior counsel appearing for the plaintiff has however opposed the prayer for modification or vacation of the interim orders passed by this court. She points out that under Section 334 (1)(a) & (b) of the DMC Act, 1957, it is not permissible for the defendant to make any addition or alteration as is proposed to be done and remove the wall in question. She submits that this can only be possible in case the defendant has a prior sanction given by the concerned office as provided under the statutory provisions of the DMC Act. She has reiterated that the wall in question is a load bearing wall and the submissions of the defendant are misplaced.

13. Learned senior counsel appearing for the defendant has refuted the contention of the plaintiff and relied upon Bye-Law 6.4.1 of the Building Bye-laws, 1983 to contend that it is permissible to remove internal walls without requiring any necessary permission.

14. I may deal with the merits of the matter now. There is merit in the contention of the defendant that the removal of the load bearing walls and columns appears to have been prima facie done sometimes in the past much prior to filing of the suit. This prima facie conclusion has been arrived at based on the report of the Local Commissioner appointed by this court on 19.12.2013. The Local Commissioner has in his report dated 03.01.2014 stated that no construction is going on at present and no construction material is available at the site. He has also placed on record photographs along with his report which do not show any construction being carried out at the site.

15. However, I am not persuaded to vacate the interim injunction order passed in favour of the plaintiff on this ground. The reasons for this view are given below.

16. The first reason is the conduct of the defendant. This conduct of the defendant is noted by the Structural Engineer appointed by this court as a Local Commissioner vide order dated 25.03.2014. Alarming alterations have been carried out in the building which affected its structural safety. The report of the structural engineer has clearly observed, as noted above, that the existing structure is not safe and load bearing walls have been removed without providing any support to the wall and the slab on the first floor and above. This is indeed a serious matter which could have caused irreparable harm and serious injury to the plaintiff or those using or visiting the property. It is alarming that the defendant could carry out such dangerous alterations which are a threat to human lives. No doubt the defendant has now rectified the damage caused to the properties, after the matter reached Court; The conduct of the defendant disentitles the defendant to claim any relief on equity.

17. The second aspect is the submission of the defendant that what the defendant proposes to do, namely, removal of a wall on the rear side would be permissible under the statutory provisions. Section 334 (1) (a) and Section 334 (1) (b) of the DMC Act, 1957 reads as follows:

'334. Applications for additions to, or repairs of, buildings.-(1) Every person who intends to execute any of the following works, that is to say,-

(a) To make any addition to a building;

(b) To make any alteration or repairs to a building involving the removal or re-erection of any external or party wall thereof or of any wall which supports the roof thereof to an extent exceeding one-half of such wall above the plinth level, such half to be measured in superficial feet;

(c) ....

....

(g)...

shall apply for sanction by giving notice in writing of his intention to the Commissioner in such form and containing such information as may be prescribed by bye-laws made in this behalf.'

18. Hence, any alterations or repairs to the building which involves removal of an external or party wall or any wall that supports the roof would require sanction of the concerned Municipal Corporation.

19. As per the Oxford Dictionary a party wall means 'between two adjoining properties or pieces of land occupied by different parties, each of whom has a right in it'.

20. Section 2(zm) of The Cantonments Act, 2006 defines party wall as follows:-

'party-wall means a wall forming part of a building and used or constructed to be used for the support or separation of adjoining building belonging to different owners, or constructed or adapted to be occupied by different parties.'

21. The wall proposed to be removed by the defendant is not a party wall. It is also not an external wall. Does the wall support the roof? Neither of the parties have placed any material on record to show whether the wall proposed to be removed by the defendant is a load bearing wall which supports the roof.

22. Both the parties have made a statement that none of them is in possession of the sanctioned building plan. It is not possible for this court at this stage to finally determine as to whether the wall proposed to be removed by the defendant is a load bearing wall or not. However, no order can be passed that may possibly jeopardise the safety of the building.

23. I may at this stage note observations of this Court in the case of Shri Nitin Sehgal vs. MCD & Ors. WP(C) 9112/2007 dated 7.12.2007 where this Court observed as follows:-

'8. It is well settled that buildings have to be raised strictly in accordance with the building plans sanctioned by the MCD in accordance with the provisions of the Delhi Municipal Corporation Act, 1857. Certain deviations which are compoundable have been permitted but this does not create any right in favour of any builder or citizen to raise construction as per his whim and fancy and seek its regularisation...........'

24. Reliance placed by the leaned senior counsel for the defendant on Clause 6.4.1 of the Building Bye-laws, 1983 is misplaced. The same deals with plastering, patch repairs, flooring and re-flooring or replacing fallen bricks, stones, beams, pillars etc. and such miscellaneous issues and will have no application to the issue.

25. There is also no merit in the contention of the defendant that the plaintiff has carried out unauthorised construction on the first floor and hence the stay be vacated. The said allegations are also contained in IA No. 13636/2014. The Division Bench in FAO(OS) 339/2014 vide order dated 28.7.2014 has already noted that the photographs filed by the defendant in support of the allegations in IA No.13636/2014 prima facie only show refurbishing work. The Division Bench also found that the said application lacks particulars about the so called illegal construction carried out by the plaintiff. There is no change in the situation since 28.7.2014 when the Division Bench passed the said order.

26. The contentions of the defendant cannot be accepted. I dispose of the present application modifying the interim order dated 19.12.2013 to the extent that the defendant is restrained from removing or raising any pillar or wall in the suit property without taking appropriate permission or sanction from the concerned municipal corporation in accordance with law. Subject to this modification, the interim order shall continue to operate till pendency of the accompanying suit.

27. With the above observations, the present application is disposed of. IA No.13636/2014

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