Dinesh Sethi vs Commissioner Of NDMC (now known as MCD) & Ors.

Exemption allowed, subject to all just exceptions.

The Application stands disposed of.

Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘CPC’) has been filed on behalf of the Appellant, Mr. Dinesh Sethi against the impugned Judgment dated 04.10.2025 of the learned District Judge-04, Delhi in RCA DJ No. 60/2025, who has upheld the Judgment of the learned JSCC-cum-ASCJ-cum-Gudn.Judge, West/THC, rejecting the Suit of the Appellant for Permanent and Mandatory Injunction under Order 7 Rule 11(d) of CPC, vide Judgment dated 03.03.2025.

The substantial questions of law, have been agitated as: whether a Judicial shelter can be given to the encroachment at the Suit Property; whether the MCD officials have a right to overrule the MCD Act, 1957; and whether the MCD officials have review power after final Order is made whereas it is clearly mentioned in Section 343(1) of DMC Act, 1957 that after the passing of final Order the MCD Commissioner has no powers to review his own Order after passing of final Notice. It is only MCD Tribunal, which has the powers to interfere with the Order.

In the present Case, MCD Tribunal has neither directed the MCD, to review the Case, nor has any other direction been issued to the concerned Officials, to review their decision. Despite this, an illegal Order dated 20.03.2015, has been passed in collusion and connivance by the MCD Officials, even though the matter is pending before the MCD Tribunal.

The facts in brief are that the Appellant had filed a Suit for Permanent and Mandatory Injunction against the Respondents/NDMC and its Officials, as well as, the Respondent No. 6, Mr. Subhash Chander Singhal, Occupier of the Suit Shop No. 26/8-9, East Avenue Market, East Punjabi Bagh, New Delhi-110026.

It was submitted that the Appellant being a citizen of India, has a locus standi to approach the Court for dismantling the unauthorised construction and encroachments upon the public/Government land. The Plaintiff/Appellant asserted that he has been utilising the road for last many years and also the path, along with the other public persons. However, due to the encroachment made by the Defendant No. 6 in his Suit Shop and by raising illegal and unauthorised construction on the public gallery without proper support, it is likely to fall on the public persons at any time.

It was further alleged that this illegal and unauthorised construction was raised, without the sanctioned plan of MCD. Moreover, no construction could have been made by encroaching on the public land on account of which, the gallery has become narrow and it is difficult for general public to utilise the same. The Plaintiff was thus, left with no option but to take appropriate steps for removal of encroachment from the public land so that the same can be utilised, without any kind of hindrance.

The Plaintiff came to know that the NDMC, has not removed the illegal and unauthorised construction and the encroachment on public land even after declaring it illegal and unauthorised encroachment on public land, by its Order dated 02.03.2015.

The Plaintiff further asserted that the gallery was meant for public utility, but because of the encroachment on an unauthorised construction, he has been deprived of his right to use the gallery. The Plaintiff had sought information through RTI and also filed the detailed Complaint dated 26.08.2014 to the Hon’ble Lt. Governor, as well as, to the Defendant Nos. 1 and 2 despite which no action has been initiated by the NDMC.

Hence, the Suit was filed for Mandatory Injunction to direct the Defendants, to remove/demolish the illegal and unauthorised construction and also for removal of encroachment on public land and for Permanent Injunction to direct the Respondent No. 6 from raising any further illegal and unauthorised construction or to make encroachment on the public land.

The Written Statement was filed by the Defendant Nos. 1 to 4/North MCD wherein it was stated that as per the record, occupier of the Suit Property had carried out construction, without permission/sanction of building plan on the First Floor, Second Floor and mumty on the Third Floor. Show Cause Notice dated 22.10.2014, was issued, to which a Reply was given by the Respondent No. 6, Mr. Subhash Chand Singhal. A personal hearing was given and thereafter, Demolition Order dated 20.03.2015 was passed. However, because the building was in existence prior to 07.02.2007 as per the House Tax Record, the punitive action was kept in abeyance, in view of Delhi Special Provision Act, 2014. It is claimed that the Suit was not maintainable.

On merits, it was denied that there is a likelihood of unauthorised construction falling on public persons. It was further asserted that the Suit has been filed by the Plaintiff, to settle his personal score with the Defendant No. 6 and the Suit is not bona fide. The property had already been booked under Section 343 and 344 of DMC Act. It was, therefore, submitted that the Suit was not maintainable.

The Appellant in the Replication, reiterated the contentions made in the Complaint.

The learned SCJ in the Judgment dated 03.03.2025, observed that the alleged unauthorised construction has not violated any Civil right of the Plaintiff, who is just a passerby, through the property of Defendant No. 6. The Suit was not maintainable under Section 41(j) of the Specific Relief Act as he has no personal interest in the Suit Property. The Suit seems to have been filed as an abuse of process of law. The Suit of the Plaintiff, was thus, rejected under Order 7 Rule 11(d) of CPC.

An Appeal vide RCA DJ No.60/2025 was filed. However, the learned District Judge concurred with the Judgment of the learned Civil Judge and found no merit in the Appeal, which was dismissed while upholding the Order of the learned Civil Judge.

Aggrieved by the dismissal of the Suit, as well as, the Appeal, the present Regular Second Appeal has been filed. The grounds of challenge essentially are that the actual facts and grievances and the pleadings of the Plaintiff, has not been appreciated in both the Orders. It has not been considered that the Respondent No.6 had only filed photocopies of the documents and the original documents were not filed. Such photocopies had no value in the eyes of law. The Respondent No. 6 failed to file the documents to show that he was the tenant in respect of the property in question. The actual owner did not file any Reply, despite Summons being sent under Order V Rule 20 CPC by the learned Trial Court. The documents relief upon by the Respondent No. 6, cannot be read and he cannot be permitted to contest the Suit or the Appeal.

It is further asserted that the learned Appellate Court failed to appreciate that the Google Earth Report/map shows the encroachment and the illegal unauthorised construction along with the construction month and year, which has not been considered by both the Court. Sh. Paramjeet Singh, relative of the owner of the Property in question, had given a Letter to the MCD Officials on 21.11.2014 in regard to the property in question that the First Floor, Second Floor and mumty on Third Floor, was not existing in 2012, which has been ignored.

It has not been appreciated that the Appellant had first made a written Complaint dated 08.08.2014 and 26.08.2014 in respect of encroachment and unauthorised construction, but no action was taken. The Respondent Nos. 1 to 4 i.e. MCD, took about two months to register the Complaint against the Suit Property after complete investigations and inspection of the aforesaid property, which was booked on 17.10.2014 and a Notice was issued to the Respondent No. 6, but no action has been taken deliberately. There is collusion and connivance between the Respondent Nos. 1 to 4. Moreover, the documents produced by the Respondent No. 6, were rejected by the Respondent Nos. 1 to 4, which he had submitted in support of his defence.

Reliance on Judgment of this Court in Rajendra Motwani and Anr. vs. MCD, decided on 16.10.2017, is misplaced as two Notices have been issued by the MCD, to Respondent No. 6 despite which no action has been taken thereby establishing the collusion between the MCD Officials and the Respondent No. 6. Reliance is also placed on Secretary of State vs. Mask Co., AIR 1940 Privy Council 105; South Delhi Municipal Corporation & Anr. vs. M/s Today Homes and Infrastructure Pvt. Ltd., Civil Appeal Nos. 6377-6378 of 2019 arising out of SLP (C) Nos. 24282-24283 of 2016.

It is further submitted that the encroachments cannot be protected or regularised. There is no question of maintainability in cases of encroachment, which are not liable to be dismissed. It has been wrongly upheld by the Ld. DJ that the Appellant has no locus standi in the Suit.

It is, therefore, submitted that the encroachments cannot be protected anytime and any member of a community can successfully bring a Suit to assert his right in the community property or for protecting such property by seeking removal of encroachment. The Suit of the Plaintiff has been wrongly dismissed and the Impugned Judgement of the learned District Judge dated 04.10.2025 and that of the learned Civil Judge dated 03.03.2025, be set-aside.

Submissions heard and the record perused.

The Plaintiff, who lived in the vicinity of the Suit Shop, was aggrieved by the unauthorised construction raised by the Respondent No. 6, on the First Floor, Second Floor and mumty on the Third Floor and also alleged that there was encroachment made on public land and had filed a Suit for Mandatory Injunction for directing MCD Officials, to remove the unauthorised construction/encroachment.

It has been rightly noted that a Show Cause Notice was issued by the Respondent Nos. 1 to 4, the Officials of MCD and the property was booked under Section 343/344 MCD Act. However, no demolition of unauthorised construction, could be carried out since the construction was of prior to 2007 and was protected as per the Delhi Special Provisions Act. Once, there is a statutory/legal bar to take action against the unauthorised constructions carried out prior to 2007, the MCD was handicapped in carrying out the actual demolition even though the unauthorised construction was booked under the provisions of MCD Act. Therefore, the learned Trial Court, as well as, the learned District Judge, were right in observing that no Mandatory Injunction as sought by the Appellant, could be granted.

The second aspect was that the Appellant claimed that the Easamentry Rights were impacted on account of unauthorised construction. In the case of Rajendra Motwani and Anr. (supra), it was observed that an illegal construction no doubt gives a locus standi to the Local Municipal Authorities for removal of illegal construction but a right of neighbour arises only if the legal rights of light and air or any other legal right is impacted on account of illegal construction. The legal right to light and air in terms of Section 15 of the Easements Act, 1882, requires a cause of action to be laid out and proved that right of light and air, has been enjoyed for 20 years and only after completion of 20 years, a right of acquisition by prescription, is acquired in the Easementary Rights. Even after acquisition of such Easementary Rights by prescription, the right to injunct a neighbour, is not absolute and is covered by Section 33 of the Easement Act, which requires that disturbance to the Easementary Rights must actually cause substantial damage to a neighbour and the infraction materially diminishes the value of the dominant heritage due to material interference in the physical comfort of the neighbour living in his own house or prevents the neighbour from carrying on his accustomed business in the dominant heritage/his own house. These all facts are material aspects and when are not established, there is no cause of action in terms of Section 15 and 33 of the Easement Act and the Suit does not disclose any cause of action.

Similar observations were made in the case of Shiv Kumar Chadha Etc. and Municipal Corporation of Delhi & Ors., decided on 02.09.2021; 2021/DHC/2721, Vishwas Pathak vs. Municipal Corporation of Delhi and Ors., 2024/DHC/4475; Resident Welfare Association vs. Kishan Devnani and Ors., 2024/DHC/6204.

In the present Case, the Appellant claims to be a neighbour living in his own house. Aside from making a bald assertion that there is encroachment made, the Appellant has failed to describe how such encroachment has impacted his Easementary Right under Section 15 of the Easement Act. There is no averment that on account of encroachment, his right to light or air, has been impacted in any manner. Moreover, the Easementary Right as defined under Section 33, has also not been made out.

The learned District Judge has rightly appreciated these aspects while upholding the Order of the Ld. Civil judge, rejecting the Suit of the Appellant under O.7R.11 CPC.

There is no merit in the present Regular Second Appeal, which is hereby dismissed. The pending Applications are disposed of accordingly.