Hans Raj vs Shri J.K. Khatri & Anr.
1999 Latest Caselaw 522 Del

ORDER

J.B. Goel, J.

1. This application under Order 39, Rule 1 and 2 of the Code of Civil Procedure (for short "the CPC) seeks ad interim injunction against raising by defendants of a boundary wall around the colony pocket C-8, Sector 8 Rohini and has been filed in a suit for declaration and permanent injunction.

2. Briefly, the case of the plaintiff is that he is owner of flat No. 387, Pocket 8C, Sector 8, Rohini having very advantageous location and abutting and approachable from a 45-meter wide road. The flats were constructed by the Delhi Development Authority (for short "DDA") under the Rohini Resdential Scheme and allotment thereof is governed by the DDA (Management and Disposal of Housing Estates) Regulations, 1968 (hereafter called "the Regulations"). The said Regulations provide for constitution of a Registered Agency for looking after the maintenance of common areas and common services in the complex after entering into an agreement with DDA; that no construction could be raised therein by such an Agency and without the prior sanction of the competent local authority; the defendant No. 2 of which defendant No.1 is the President is a Residents Welfare Association registered under the Societies Registration Act (for short "the Societies Act") and is not the Agency contemplated under the Regulations nor it has entered into any agreement with the DDA; that defendant No.1 is not an allottee of any flat in this colony and cannot be a member of the said Registered Agency and as such defendants cannot perform the duties of a Registered Agency on behalf on the owner-allotees of the houses in this colony. The defendants are constructing a boundary wall around this colony illegally and mala fide and without the permission of the plaintiff who being an allotee/owner of a flat has got equal right in common areas and services. This action of the defendants is against the interest of the plaintiff as utility and value of his flat is adversely affected if a boundary wall is constructed; other owners will also suffer and public at large visiting the colony will be inconvenienced; that construction of such a boundary wall is not provided in the layout plan and the Chief Fire Officer has also raised objection that such a boundary wall is against the public interest and safety; defendants have not heeded to the protests of the plaintiff. Accordingly, the plaintiff has filed the present suit for declaration and injunction along with the application for interim injunction.

3. The defendants are contesting the suit and also the application inter alia on the grounds that no legal rights of the plaintiff are being violated; that boundary wall is for the safety, welfare, privacy and security of the residents of the colony; the defendant No. 2 is a registered welfare society of all the residents functioning since 1987; for raising the wall sanction has been granted by the DDA, who is a competent authority; the Lt. Governor, Delhi has also approved it; the suit is thus misconceived, not bona fide and is not maintainable. The suit is also belated as a lot of construction had already been completed incurring substantial expenditure; that the boundary wall is not being constructed on the common areas in the colony; that the plaintiff is not a resident of the colony but doing business as a property dealer in the name of M/s. Wadhwa & Company which is a misuser and in violation of the terms of allotment of the flat to him and DDA has initiated action for cancellation of his flat; that this boundary wall is being constructed in the interest and with the approval of the residents of the colony who have welcomed it; apprehensions of the plaintiff of fire hazard or obstruction in egress and ingress are misconceived and mala fide as sufficient number of gates to be manned by chowkidars are being provided to ensure safety and security of the residents with their own funds. The defendant No. 2 was formed in 1987 to look after the welfare of the residents registered under the Societies Act and since then it is looking after the maintenance of common services in the colony. Such a boundary wall is contemplated under the layout plan and in fact already a boundary wall existed on one side of the colony.

4. I have heard learned counsel for the parties. The main thrust of the arguments of the learned counsel for the plaintiff is that only a Registered Agency constituted by allottees of flats in the colony as contemplated under the Regulations could undertake to look after the matters like maintenance, common services, common areas and other common activities of the colony and the defendant is not such an agency nor registered with the DDA and is not competent or authorised to act as such an agency.

5. The Regulations do contemplate for the constitution of a body called Registered Agency of the allottees of the flat in a particular housing estate and its registration with the Vice-Chairman of the DDA. These Regulations do not provide or contemplate of any adverse consequences for not establishing such an agency. Plaintiff had also not taken any steps so far towards constitution of such an agency. These Regulations also do not prohibit the formation of any other association by the residents of the colony for looking after their welfare in matters of common interest till a Registered Agency is established under the Regulations. Moreover, such an agency would be looking after the common areas and services inside the colony, i.e., within the boundary wall and not outside it. Defendant No. 2 is an association of the residents of the colony and is registered under the Societies Act, 1860. It is claimed that this Association was constituted in 1987 and since then has been looking after the welfare and common interest of the residents including common services in the colony. It is obviously a wider body as unlike a Registered Agency which could be formed by the owner-allotees ; it comprises of all the residents of the colony, i.e., owner-allotees as well as non-owner allottees such as tenants etc. and is thus a more representative body of the residents and can better look after the common interests of the residents. This Association had made a written request to the Chief Engineer, DDA on 8.2.1996 pointing out that because of its location near outer ring road, there had been cases of theft as well as instances of shooting in this colony and with its present situation, the residents were feeling unsafe and sought permission for construc-tion of a boundary wall around the colony. Two reminders were also sent. An Addl. Chief Engineer, DDA in his letter dated 8.4.1997 informed the association that his office had no objection for construction of such a boundary wall at their own cost for the safety of the residents. The Lieutenant Governor of Delhi also in his letter dated 9.6.1997 directed the Commissioner of Police etc. to immediately render help in ensuring that the residents were able to construct such a boundary wall within a week. Obviously, this also has the approval of the Lt. Governor.

6. This action of the DDA and the Lt. Governor has not been challenged by any one anywhere so far. Both the parties have placed on record copy of the layout plan of this colony and asappears from letter dated 22.11.1997 of the Executive Engineer, DDA concerned, he has demarcated the boundary line of this colony and it is the case of the defendants which is not disputed that this boundary wall is being raised on this demarcated boundary line. Board scheme of construction of the boundary wall with 8 gates for ingress and egress has been given in para 6 of the preliminary submissions as under :-

"The answering defendants submit that there is not going to be any fire hazard or blocking of the egress and ingress to the flats in the colony by the construction of the boundary wall inasmuch as the number of big gates (total 8) have been provided for at different points in the boundary wall manned by chowkidars all the time. A true copy of the lay out plan duly approved by the D.D.A in this regard is annexed herewith marked as Annexure D-6. The measurements of the aforesaid gates are: There big gates are provided between points `A' and `B' shown in the lay out plan. The first gate marked as `X' is 13 feet wide and it is having an additional 3 feet gate with it for the pedestrians and for two wheelers. Second gate between point `A' and `B' provided at point `Y' is of 16 feet width having an additional 3 feet wide gate with it for pedestrians and two wheelers. (This gate is facing the flat of the plaintiff) and the third gate is provided at point `Z' and is also of 13 feet width having an additional 3 feet wide gate for pedestrians and two wheelers. There other gates are also to be provided between `B' and `C' at points `XI', and `YI' and `ZI'. These gates will be of widths 10 feet plus 3 feet respectively. Further between `C' and `D' two gates will be provided at points `X2' and `Y2' which will be of widths 13 feet plus 3 feet and 16 feet plus 3 feet respectively. These gates include the gates provided at all the three points/roads which lead to the parking lots/sites in the colony (The fourth side between `D' to `A' is facing the green belt and the same is already fenced by the DDA). As such there is not even going to be any hindrance to the movement of the vehicles nor to the ingress/egress of the residents. In any case the construction of boundary wall around the colony is not a task which can be said to be part of looking after the common areas and common portions of the colony. As already submitted above the boundary wall is not a part of the common areas and rather all the common areas are and have to be inside the boundary wall. Furthermore the boundary wall is being constructed with the prior approval/sanction of the competent local authority (D.D.A.) and as per the lay out plan of the colony."

7. Apparently, there would be no obstruction or unnecessary inconvenience in the ingress and egress or otherwise enjoyment of the flats by the residents with the construction of such a boundary wall. This seems to be a wise step towards the welfare and safety of the person and property of the residents of the colony and is thus in wider public nterest.

8. It is alleged by the defendants that the plaintiff is not residing in his flat No. 387 and is unauthorisedly using it for commercial purposes as property dealer. Apart from this misuer, prima facie, it cannot be said that his right of use and enjoyment of his flat would be adversely affected by constructing a boundary wall. It is a matter of common knowledge that such boundary walls are invariably raised in group housing colonies being eminently in the interest of safety and security of its residents. Interest of 639 (out of 640) residents in this colony is obviously being safeguarded by raising this boundary wall as they have not raised any grievance in any forum.

9. There is apparently no violation of the legal rights of the plaintiff and as such the question of causing any legal injury, loss or harm to him would not arise. The apprehension of the plaintiff prima facie seems to be misconceived and not tenable.

10. The defendant have pleaded in their written statement that gate in the boundary wall near the flat of the plaintiff was installed on 16.6.1997 and this suit was filed after about two months when considerable expenditure in constructing the wall had already been incurred. This action of the plaintiff is obviously belated.

11. In the facts and circumstances, three broad requirements for grant of a temporary injunction are not fulfillled. In my view, no case for grant of an ad interim injunction is made out.

12. This application has no merit and is accordingly hereby dismissed and the interim order dated 6.2.1998 is also vacated.