B.P. Shukla vs Atam Vishal Chadha & Ors.
2015 Latest Caselaw 6500 Del

*                    HIGH COURT OF DELHI AT NEW DELHI

+                     C.R.P. No.125/2015 & C.M. No.15310-311/2015

                                       Decided on: 1st September, 2015

B.P. SHUKLA                                   ...... Appellant
                       Through:   Mr. B.K Pal, Advocate.

                         Versus

ATAM VISHAL CHADHA & ORS.           ...... Respondents
             Through: Ms. Mini Pushkarna, Standing Counsel
                      for R-2/EDMC
                      Mr. Santosh Kumar Tripathi, ASC (Civil)
                      GNCTD/R-3
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (ORAL)

1. By virtue of the present civil revision petition, the petitioner has

challenged the order dated 06.7.2015 passed by the court of the

Additional Senior Civil Judge, JSCC, Guardian Judge, Karkardooma

Courts (East), New Delhi in suit No.277/2010.

2. Briefly stated the facts of the case are that in May, 2010 the

respondent herein filed a suit for permanent and mandatory injunction

against the present petitioner who is the neighbour of the respondent

herein and had allegedly raised illegal and unauthorized construction in

the form of a four feet balcony (chajja) in the gali/street over the property

bearing no. A-1176, Indra Gali (Durga Gali) Mandwali Fazalpur, Delhi-

110092 (hereinafter referred to as suit property) without prior sanction

due to which respondent/plaintiff's window was blocked restricting the

ventilation of the respondent/plaintiff's house.

3. Vide order dated 06.07.2015 the Ld. Trial Court passed an order

directing the defendant no.1 (petitioner herein) to remove the entire

unauthorized construction done in the suit property and injuncted him

permanently from raising any further construction therein without prior

permission of the EDMC. Aggrieved, the defendant no.1 filed the present

petition seeking revision of the aforesaid order.

4. The case of the petitioner rests on a short point that the building of

the respondent is unauthorized and the window has been illegally opened

towards the side of the petitioner. It has been contented by the learned

counsel for the petitioner that the petitioner has constructed the first floor

like his other neighbors and his act cannot be seen in isolation.

5. The learned counsel for the petitioner has further challenged the

maintainability of the original suit bearing no. 277/2010 for want of

notice u/s 477/478 of the DMC Act and has stated that the learned trial

court failed to appreciate that the respondent (petitioner therein) had no

cause of action.

5. The learned counsel for the petitioner has averred that the learned

trial court on an erroneous application of the judgment of the Honorable

Supreme Court in the case titled Deepak Kumar Mukharjee vs Kolkatta

Municipal Corporation and Ors. 2012 SCALE 29, passed an order

granting injunction in favor of the respondent, as the same is factually

distinguishable and has no application to the instant case.

6. I have heard the learned counsel and perused the impugned order. I

am of the considered opinion that the arguments advanced by the learned

counsel for the petitioner hold no water. It is settled law that the case of

the petitioner must stand or fall on its own legs and it cannot derive any

strength from the weakness in the stand of the respondent. The petitioner

has claimed his right of construction of the balcony on the premise that

every other person in the area has also done so. Without going in the

merits of the petitioner's assertion as the same is not the issue in the

present matter it is important to understand that two wrongs shall not

make a right and the petitioner cannot act in violation of the laws merely

on the pretext that certain others also chose to do so. The same does not

make the act of the petitioner legal. On the same note if that is the

grievance of the petitioner that others have also acted in violation of the

laws than he has legal remedies available to him under the law and as a

responsible citizen he may chose to invoke the same.

7. The arguments advanced by the learned counsel for the petitioner

are frivolous and are bereft of any merit. When once it was established

that the construction is unauthorized and is in gross violation of the laws

then the court is well within its rights to order the demolition of the same.

8. On an analysis of the impugned order and in the light of the

aforesaid, I am of the view that the findings arrived at by the learned trial

court are absolutely correct. I do not find any material irregularity or any

patent illegality so as to warrant any interference from this court. For the

reasons mentioned above, I feel that the present revision petition filed by

the petitioner is totally misconceived

9. Accordingly the petition stands dismissed. Resultantly pending

applications are also dismissed.

V.K. SHALI, J.

SEPTEMBER 01, 2015 AD