HANS RAJ Vs. J K KHATRI

JUDGEMENT

(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 C-8, 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 Residential Scheme and allotment thereof is governed by the DDA (Management and Disposal of Housing Estates) Regulations, 1968 (hereinafter 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 of the owner- allottees 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 allottee/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.