Newtech Estate And Industries Private … vs Sh. Inder Singh Oberoi And Ors. on 27 November 2003

Delhi High Court
Newtech Estate And Industries Private … vs Sh. Inder Singh Oberoi And Ors. on 27 November, 2003
Equivalent citations: 109(2004)DLT90, 2004(72)DRJ420, (2004)137PLR12
Author: S.K. Mahajan
Bench: S.K. Mahajan
JUDGMENT

S.K. Mahajan, J.

1. This appeal is directed against the order passed by the Additional District Judge in a suit filed by respondent No. 1 whereby the appellants were restrained from putting the property in question to any use other than residential purpose till the disposal of the suit. A few facts relevant for deciding this appeal are :-

Plaintiff/respondent No. 1 is the owner of residential premises bearing No. 78, Hemkunt Colony, New Delhi. The adjacent plot of land bearing No. 79 was purchased by the appellants and they constructed a building thereon after allegedly getting the building plans sanctioned from the Municipal Corporation of Delhi. Respondent No. 1, being the immediate neighbour of the appellant, filed a suit for permanent injunction restraining the appellants from putting the property bearing No. 79, Hemkunt Colony, New Delhi to any non-residential use or from doing any commercial activity from the said premises on the allegations that the appellants were intending to put the premises to commercial use which would affect the rights of the plaintiff besides the same being in violation of the zonal and master plan of Delhi. Along with the suit, an application for ad-interim injunction was also filed for restraining the appellants from putting the property to non-residential use or from doing any commercial activity till the disposal of the suit.
2. In the written statement and reply to the application filed by the defendants/appellants 1 and 2, it was stated that the plaintiff had no locus standi to file the suit and that he had concealed and suppressed material facts from the Court thereby disentitling him to the grant of any equitable relief by the Court. It was alleged that the appellants had themselves raised unauthorised construction in their property bearing No. 78 and the appellants had filed a suit seeking permanent and mandatory injunction against him for restraining him from raising any unauthorised construction and for directing him to demolish the unauthorised construction raised on plot No. 78. In the said suit, this Court had directed the Municipal Corporation of Delhi to take action in accordance with law and the Corporation was further directed to submit a report regarding the action taken by it. In furtherance to the said directions, the Municipal Corporation of Delhi filed a status report stating, inter alia, that respondent No. 1/plaintiff had raised certain unauthorised construction in his property. It is submitted in the written statement that the present suit was a counter blast to the suit filed by the appellants against the plaintiff/respondent No. 1. It is also stated in the written statement that the suit was barred by the provisions of Sections 41(f)(h)(j) of the Specific Relief Act. It was denied in the written statement that the appellants were about to put the property to commercial use in contravention and violation of the Zonal and Master Plan. It was stated that the construction raised on plot No. 79 was strictly in accordance with the Zonal and Master Plan and in accordance with the building bye-laws and the plans sanctioned by the Municipal Corporation of Delhi. It was submitted that respondent No. 1 had no cause of action to file the suit and the plaint was liable to be rejected.

3. On the aforesaid pleas, the trial Court came to a prima-facie finding that in case of a nuisance, the immediate neighbour of the property has locus standi to file the suit so as to stop the nuisance which in any manner inconvenience him in the user of his own property. It was observed by the trial Court that as per the case set up by the plaintiff, the appellants were threatening to carry out commercial activities from the property which was intended to be residential not only in the lay out plan of the colony but under the Master Plan as well; that under Section 14 of the Delhi Development Act, no one can violate the Master Plan and even if the property is free hold, the allottee under the terms of the conveyance deed is bound to put the property within the parameters of the Master Plan of Delhi. It was observed in the order that the submissions of the appellants that they would be using the property only as per law was vague as they were not forthcoming to disclose as to the use they wished to put the suit property. It was observed that if the appellants intended to put the building for non-residential use, they would be required to seek permission but there was not even a whisper that such permission had been sought. The trial Court observed that the appellants were claiming their right to use the property belonging to them as per law but they were unwilling to come out with an unequivocal statement that they would not be putting the suit property to use other than residential. The trial Court was also of the view that though the completion certificte no doubt mentions that the kitchen, bed-rooms, drawing rooms, etc. exist but the structure shown in the photographs did not appear to be of a residential use and thus it could not be said that the apprehension of the plaintiff that the appellants would be putting the property to non-residential use was based on no material at all. The Court was, therefore, of the view that it was for the appellants to allay the apprehensions of the plaintiff but no effort in that direction was made by them. The trial Court, accordingly, disposed of the application by restraining defendants 1 and 2/appellants from putting the property to any use other than residential till the disposal of the suit. Aggrieved by this order, the appellants have filed the present appeal.

4. The contention of Mr. Valmiki Mehta, learned Senior Advocate, appearing on behalf of the appellants is that as no activity had yet started, it could not be said that the appellants would be putting the property to commercial use and even assuming the property was being put to commercial use, it could not be said that such user would be a nuisance which may give rise to a cause of action in favor of the plaintiff/respondent No. 1. It is contended that the appellants had every right to use the property in accordance with law and in case the law permits them to put the property to certain type of commercial user, the plaintiff or any other person has no right whatsoever to put any fetters on such right of the appellants.

5. It is also contended that even as per the Master Plan 2001, the property being located on a road which was more than 18 meters wide, the same could be put to certain non-residential user like nursing home, guest house, banks, etc. and respondent No. 1, therefore, could not object to such user nor any injunction could be granted against the appellants. For this learned counsel has relied upon the judgments reported as Nandlal Ladia and Another Vs. Provudayat Tikriwalla and Another, ; Lalit Mohan Mitra and Others Vs. Samirendra Kumar Ghosh and Others, ; Narayandas S. Kanuga Vs. Sarasvatibai D. Joshi and Another, AIR 1968 Bombay 280; Bhawarilal and Another Vs. S. Jaichand and Others, ; and Kuldip Singh Vs. Subhash Chander Jain and Others, .

6. In reply to the submissions of the appellants, the contention of Mr. Phoolka, learned Senior Advocate, appearing on behalf of the respondents is that carrying out non-permissible activity in a residential plot is in itself a nuisance and nothing more is required to be proved by the plaintiff to get an order of injunction against his neighbour restraining him from carrying out such activity. It is submitted that inconvenience has to be shown only when a permissible activity is carried out in the premises. It is submitted that the appellant has admittedly not applied for any permission for using the premises to a non-residential user and without such permission, the appellant cannot use the property for a purpose other than residential. It is submitted that if the appellant gets permission to use the premises for a purpose other than residential, he is at liberty to apply to the Court for modification of the order of injunction but without such permission, there is no infirmity in the order of the trial Court whereby the appellants have been restrained from using the property for any purpose other than residential. For this he has relied upon the judgments reported as S. Hardayal Singh Mehta and Another Vs. Smt. Nirmala Devi and Others, ; Sh. Joginder Kumar Singla Vs. Municipal Corporation of Delhi, 2002 VIII AD (Delhi) 605; and Narain Datt Vs. Swaran Singh and Others, 2nd 1976 (1) Delhi 578.

7. The short question before the Court is whether the appellants cannot use the property for a purpose other than residential and whether using the premises for a purpose other than residential would per se be nuisance so as to entitle the respondent to an injunction against the appellants. It is not shown in the plaint or in the application as to for what purpose the appellants are intending to put the property to use which may be a cause of nuisance to the plaintiff. It is only an apprehension of respondent No. 1 that the appellants would be putting the property to commercial use which may cause inconvenience to him.

8. In Nandlal Ladia and Another Vs. Provudayal Tikriwalla and Another (Supra), it was held by the Division Bench of the Calcutta High Court that under Sections 54 and 55 of the Specific Relief Act, 1877, the plaintiffs may pray for perpetual or mandatory injunction to prevent the breach of an obligation existing in favor of the plaintiffs, however, there was no obligation contractual or otherwise on the part of the plaintiffs towards the defendants which required that the defendants should construct on his own land in accordance with the Municipal Rules and Regulations. The plaintiffs, therefore, had no right to pray either for a mandatory injunction or perpetual injunction merely on the ground that the proposed construction on the defendants land may be in breach of the Municipal Rules and Regulations and bye-laws. Similar observations were made by another Division Bench of the Calcutta High Court in Lalit Mohan Mitra and Others Vs. Samirendra Kumar Ghosh and Others (Supra), wherein it was observed that unless the action of the defendants amounts to actionable nuisance, the plaintiff may not have a right to start the action and pray for injunction. A Division Bench of the Bombay High Court in Narayandas S.Kanuga Vs. Sarasvatibai D. Joshi and Another (Supra), has held that Section 54 of the Specific Relief Act enables the Court to grant perpetual injunction to prevent the breach of an obligation existing in favor of the plaintiff – whether express or implied, however, the same is again subject to exceptions. It was observed that the query, therefore, has to be “whether there exists an obligation in favor of the plaintiff” and even where an obligation is made out unless the case falls within Section 56, injunction cannot be granted. Where the plaintiff cannot and do not allege any recognizable right or obligation in them, nor the breach of the same, they cannot get a perpetual injunction nor can they get a temporary injunction.

9. A perusal of the aforesaid judgments clearly shows that the plaintiff, to get an order of injunction in his favor, must show that there is a recognizable right or obligation in his favor breach of which gives right to a cause of action to file a suit against the defendant. If such recognizable right or obligation does not exist, the plaintiff is not entitled to an injunction unless of course he is able to show that the act of the defendant would amount to actionable nuisance as a result of which he cannot use his own property in a peaceful manner. Whether the user of the property by the defendants would amount to actionable nuisance which may entitle the plaintiff to file a suit or claim injunction against the defendants is, therefore, required to be examined.

10. In the present case, it is not alleged by the plaintiff/respondent No. 1 either in the plaint or during the course of arguments as to how an apprehension has been created in his mind that the property would be put to a commercial use and such user would be a nuisance for him. If a person has a right to use the property in a particular manner either with or without permission from the authorities, such user, in my opinion, per se would not amount to nuisance to the immediate neighbour. The Supreme Court in Kuldip Singh Vs. Subhash Chander Jain and Others (Supra) was considering a similar question as to whether running of a bakery by the defendant after getting a license to run the same from the Municipal Corporation would amount to nuisance which may entitle the plaintiff to file the suit against him and get an injunction restraining the running of the said bakery. The Supreme Court on these facts held that a quia timet action is a bill in equity. It is an action preventive in nature and a specie of precautionary justice intended to prevent apprehended wrong or anticipated mischief and not to undo a wrong or mischief that has already been done. There are at least two necessary ingredients for a quia timet action namely 1) there must, if no actual damage is proved, be proof of imminent danger and 2) there must also be proof that the apprehended damage will, if it comes, be very substantial or in other word it must be irreparable. It must be shown that if the damage does occur at any time, it will come in such a way and under such circumstances that it will be impossible for the plaintiff to protect himself against it, if the relief is denied to him in a quia timet action.

11. It was held that in the case of an apprehended future nuisance, a mere possibility of injury will not provide the plaintiff with a cause of action unless the threat was so certain or imminent that an injury actionable in law will arise unless prevented by injunction. The Supreme Court observed that the bakery was not operational on the date of filing of the suit and the same was not an activity which by itself was illegal or inherently dangerous. It also observed that it could also not be said that the bakery merely because it had been constructed or become operational would pose such an injury as would be irreparable or would be incapable of being taken care of by a process known to law. It was observed that the pleadings raised by the plaintiff did not and could not have set out the nature and extent of injury, if any, caused or likely to be caused to the plaintiff. The Supreme Court, therefore, observed that the findings recorded by the High Court were oscillating and were not clear and specific and were mere guess work. It was observed that a clear finding as to nuisance could not have been recorded by basing it on generalised statements of certain witnesses stating that a bhatti emits smoke, heat and smell which statements would be mere ipse dixit of the witnesses. There was no foundation either in pleadings or in evidence for observations made by the High Court as to gases, ash, etc. emitting from the furnace and no case for quia timet action was made out and the suit filed by the plaintiff was pre-mature. No relief, much less by way of preventive injunction, could have been allowed to the plaintiffs and the suit of the plaintiffs should be dismissed with liberty to file an appropriate suit on proof of cause of action having accrued to the plaintiffs consistently with the observations made in that judgment.

12. A reading of the Supreme Court judgment makes it clear that unless the pleadings set out as to what would be the nuisance and what is the injury which may be caused by the use of the premises by the appellants, no injunction can be granted and the suit in such an eventuality would be premature. The present case, in my opinion, is fully covered by the aforesaid judgment of the Supreme Court and the judgments of the Delhi High Court cited by learned counsel for respondent No. 1 do not in any manner support the case of respondent No. 1/plaintiff.

13. In S. Hardayal Singh Mehta Vs. Smt. Nirmala Devi and Others (Supra), a case cited by Mr. Phoolka in support of his contention, the facts were that a guest house was being run without a license in a residential premises and the allegations made in the plaint were that the running of the guest house causes the neighbour, who was a lady, a great deal of nuisance and it was interfering with her peaceful living and that of her family in the flat; that many people of different classes and types and some even drunk come to the guest house at odd hours during day and night and use the stairs; that they use filthy and vulgar language and sometimes tried to enter the house of the plaintiff because the entry doors to the house of the plaintiff and the guest house were facing each other; that the lodgers make noise during day time and also till late in the night. It was on these circumstances that the Court held that the acts complained of can be attendant to the activities of a guest house and the same being a big one of 25 rooms and the staircase being common, no ordinary and reasonable man living with his family can put up with such activities and cannot certainly have a quiet and peaceful living in his house. It was in these circumstances that the Court granted an injunction restraining the guest house being run in the premises. In this judgment, the pleadings specifically stated as to the type of nuisance being created by the running of the guest house and the suit was filed not before the starting of the guest house but after it had become operational created nuisance for the neighbour and the same, therefore, could not be said to be premature.

14. In the present case as well, if after the property is put to use by the appellants and the nuisance is created, respondent No. 1 can any time approach the Court for stopping the said nuisance, however, as observed by the Supreme Court, even prior to the property being put to any use, it could not be said by any stretch of imagination that such an activity which may be carried out in the premises would be injurious or nuisance to the plaintiff. In S. Hardayal Singh Mehta Vs. Smt. Nirmala Devi and Others (Supra), the Court observed that if there is a person who is aggrieved by the unauthorised activity of his neighbour, he has a much stronger case than if he is aggrieved by lawful activity of the neighbour. If the activity is lawful then he is to show a much stronger case as to why relief should be given but if the activity is unlawful and is without license, it is per se unlawful and any disturbance which can be described as intolerable is likely to lead to the grant of an interim injunction to restrain the carrying on of such activity. It is thus clear that if the activity which may be carried on by the appellants in the premises is lawful or permissible, the plaintiff/respondent No. 1 has to make out a stronger case as to why relief should be given. At the moment, no one is certain as to what activity will be carried on in the premises. If a commercial activity, as may be permissible in law, is carried on by the appellants in the premises, the plaintiff/respondent No. 1 may not be entitled to an injunction unless of course it is shown that by carrying on such an activity, nuisance was created which was intolerable to the plaintiff and the Court in that case may be able to grant relief in favor of the plaintiff.

15. The property in question is admittedly on a road which is more than 18 meters wide. Under a Notification dated 7th May, 1999, the Ministry of Urban Development has modified the Master Plan of Delhi so as to permit guest house, boarding house, lodging house, nursing homes and banks in residential plots of minimum size of 209 sq.m. subject to conditions laid down in the guidelines. I am not for a moment holding that the appellants are entitled to use the property for any of these purposes but if it is entitled to use the property for any of such purposes on account of the same having been declared mixed use area, in my opinion, the same may be said to be a permissible activity in the premises. However, it is only after such activity is started and the same causes nuisance and intolerable disturbance that there may be any case of complaint to the plaintiff. The trial Court has placed much emphasis on the fact that the appellants were stating that the property would be used as per law but they were unwilling to make a statement that they would not put the suit property to any use other than residential and the injunction has been granted mainly for this reason that the appellants had not made a statement before the Court that the property will not be put to use other than residential. In my opinion, the learned trial Court has totally misdirected itself by basing its entire findings upon the fact that the appellants were not coming out with an unequivocal statement that they would not put the property to use other than residential. In my opinion, there was no need for making any such statement by the appellants when they had clearly stated that they will not use the property in any manner not permitted by law and there was no need to make any further statement by the appellants. In case, the property can be put to use for running a bank or a guest house or nursing home in accordance with the Master Plan and Zonal Plan, there could not be any restriction for the appellants to use the property for such purpose and there was thus no need for them to make a statement that they would not use the property for a purpose other than residential.

16. For all the foregoing reasons, I am clearly of the opinion that the learned trial Court appears to have been swayed by the conduct of the appellants in not making a statement that they will not put the property to use for a purpose other than residential. The trial Court has clearly gone wrong in observing that the property being in a residential area could not be put to use for a purpose other than residential. As already observed above, in case the property can be put to any permissible user, there cannot be any bar to the appellants putting the property to such permissible use. In my opinion, not only that the plaintiff/respondent No. 1 had not made out any case in the plaint for the grant of an injunction as it had not specifically pleaded as to what type of nuisance would be created by the activity to which the property may be put to use, the suit was even otherwise premature as the property had not yet been put to any user that may said to be a nuisance or disturbance to the plaintiff. There was no prima facie case in favor of respondent No. 1 nor the balance of convenience was in his favor so as to entitle him to the grant of ad-interim injunction. The order of the trial Court being clearly against the principles laid down for the grant of temporary injunction and being based only on assumptions and presumptions cannot be sustained.

17. I, accordingly, allow this appeal, set aside the impugned order and dismiss the application of the plaintiff/respondent No. 1 for the grant of ad-interim injunction. In the circumstances of the case, parties are left to bear their own costs.