Hansalaya Properties vs Dalmia Cement (Bharat) Ltd. And ...
1993 Latest Caselaw 580 Del

JUDGMENT

V.B. Bansal, J.

(1) Hansalaya Properties, petitioner has filed this petition under Article 227 of the Constitution of India, thereby challenging the order dated 18/03/1993 of Shri M.A. Khan, Appellate Tribunal,Municipal Corporation of Delhi, thereby rejecting the application of the petitioner under Order I Rule 10 of the Code of Civil Procedure.

(2) Hansalaya Properties, the petitioner is a partnership concern andSmt. Pushpa Vadera is one of the partners, through whom, this petition has been filed. The petitioner is the promoter/builder/owner of the multistorey building named "HANSALAYA", situated at Bara Khamba Road, NewDelhi. An agreement to sell the i 1th floor of this building was entered into between the petitioner and M/s. Dalmia Cement (Bharat) Limited, respondent No. 1 in the year 19,0 while an agreement to sell in respect of 12thfloor of this building was entered into between Orissa Cement Limited . petitioner. Subsequently, on the basis of a settlement arrived at between respondent No. 1 and Orissa Cement Limited, the agreement to sell in respect of 12th floor was converted in favor of the respondent No. 1.Respondent No. 1 took possession of both the floors i.e. 11th and 12th floor of the said building in pursuance of agreement to sell.

(3) Litigation started between the petitioner and respondent No. 1and in Suit No. 318/80, pending in this Court, an order was passed on 8/08/1980, hereby Hansalaya Properties were restrained from interfering to the peaceful enjoyment, user and possession bythe plaintiffs of complete 11thand 12th floors and appurtenances thereto, which order is still subsisting.

(4) The claim of the petitioner has been that the respondent No. 1continues to be in possession of the said property on the basis of the stay order granted by this Court, though, the ownership rights still vests in the petitioner. It is also pleaded that on 26/12/1992, the petitioner noticed the commencement of illegal construction and thereby extending heavy from bar projection outside the 11th and 12th floor of the building by the respondent No. 1 on account of which, a report was lodged in the police but no action was taken. Further averments made are that LA.14492, of 1992 was moved by the petitioner in Suit No. 318/90, on which an order was passed by this Court restraining Dalmia Cement (Bharat) Ltd.from carrying on further fabrication and addition to the structure projecting outside the building and the said order continues to be in force till now.

(5) Further averments made in the petition are that a notice under Section 195 of the Punjab Municipal Act was issued to the petitioner as owner and to the respondent No. 1 as occupant, by the New Delhi Municipal Committee in respect of the illegal construction with a direction to discontinue the further construction and since the respondent No. 1 failed to remove the illegal construction, a notice of demolition, dated 4-1-1993 was issued to respondent No. 1 as also to the petitioner with a direction to demolish the illegal construction within 24 hours. This order was challenged by the respondent No. 1 before the Appellate Tribunal under Section 225 of the Punjab Municipal Act.

(6) The petitioner has not been made a party in the said appeal.An application under Order I Rule 10 Civil Procedure Code was moved by the petitioner before the Appellate Tribunal with a prayer that they may be imp leaded as are spondent and be heard so that the appeal is disposed of effectively. It was also claimed that it was a bona fide application and certain averments have been made by M/s. Dalmia Cement (Bharat) Limited against the applicant.

(7) This application was opposed by Dalmia Cement (Bharat) Limited and after hearing the parties, the same was dismissed vide the impugnedorder.

(8) I have heard Mr. H.L. Tikku, learned Counsel for the petitioner,Mr. G.N. Aggarwal, learned Counsel for respondent No. 1 and Mr. B.J.Nayyar for respondent No. 2.

(9) Learned Counsel for the petitioner has submitted that the information with regard to the illegal and unauthorised construction being raised by respondent No. 1 was given by the petitioner to the S.H.O. of the concerned police station and that the petitioner being the owner, is interested in the outcome of the appeal. He has also submitted that the Tribunal has to go into the question of ownership and the petitioner would be able to produce the sanctioned plan of the building before the Tribunal so as to show that the proposed construction was unauthorised. He has, thus, submitted that the learned Tribunal has committed material irregularity and failed to exercise jurisdiction vested in him in disposing of the application of the petitioner for being imp leaded as a party. A prayer has, therefore, been made that the petition may be accepted and the petitioner may be added as a party to the proceedings before the Tribunal.

(10) Learned Counsel for the respondents have, however, controverter this submission of the learned Counsel for the petitioner and submitted that the Tribunal is not required to go into the ownership and all that is required to be examined by the Tribunal is, as to whether the construction is unauthorised or not. It has also been submitted that the sanction plan is available with the Ndmc, which can produce the same and that the Tribunal has the power to summon the record. It has also been submitted that the petitioner has not claimed that he raised the construction, which, as per the admitted case of the parties, has been raised by respondent No. 1. It is, in thesecircumstances, that a prayer has been made that this petition may be dismissed.

(11) There can, possibly, be no dispute that the Tribunal is not required to go into the ownership of the premises. A perusal of the notice dated4-1-1993 under Section 195 of the Punjab Municipal Act clearly indicates that it was given to S.N. Mittal, Secretary of Respondent No. 1 and also to Misha Vadhera partner (owner) of the premises calling upon them to demolish the unauthorised structure pointed out in the notice within 24 hours of the receipt of notice, falling which, legal action would be taken at their risk and costs. It is, thus, clear that the Tribunal is not required to go into the ownership and no finding, adverse to the interests of the petitioner regarding the ownership can be recorded by the Tribunal. It may, at this stage, he convenient to mention that Suit No. 318/80, instituted by Respondent No. 1against the petitioner, is pending on the Original Side of this Court, in which the present petitioners have already been restrained from interfering with the peaceful enjoyment, user and possession by the plaintiffs of complete I 1thand 12th floors and appurtenances thereto, which order is in force. the petitioner has also mentioned in the petition that in 1.A. 14492/92, in the aforesaid suit, stay has already been granted by this Court, restraining the plaintiff/respondent No. 1 from carrying on further fabrication or add it into the structure projecting outside the building as the I 1th and 12th floor of the building, Hansalaya, 15, Bara Khamba Road, New Delhi.

(12) Mr. Nayyar, learned Counsel for Ndmc has clearly stated that the sanctioned plan of the building is available with the Ndmc and the same would bs produced before the Tribunal, as and when, it is required. Can,in these circumstances, it be said that the petitioner is a necessary party before the Tribunal so that he may produce the documents and protect his ownership when the question of ownership is not to be decided by the Tribunal and my answer is certainly in negative.

(13) There is no doubt that Rule 17 of the Delhi Municipal Corporation Appellate Tribunal (Procedure) Rules, 1986 provides that the Tribunalmay, notwithstanding any of the foregoing provisions give such orders or give such directions, as may be necessary or expedient to secure the ends ofjustice. This would, however, does not mean that the petitioner becomes a necessary party to be imp leaded in the aforesaid proceedings pending before the Tribunal. Similar matter came up for consideration before this Court incase Hardyal Singh Mehta and Another v. M.C.D. and Others, (Reported as ) wherein it has been said that the only proper party could be the person who has claimed or alleged to have made the unauthorised construction and the authorities, who contemplate demolishing thesame.

(14) The action of the respondent No. 1 is being challenged by theN.D.M.C., who is already a party before the Tribunal. The petitioner, who wants to support the action of the Ndmc cannot be said to be necessaryparty. Learned Tribunal has, thus, not committed any error so as to interfere in the discretion exercised by it in dismissing the application of the petitioner under Order I Rule 10 C.P.C.

(15) Learned Counsel for respondent No. 1 has taken a preliminary objection that in this petition, under Article 227 of the Constitution of India, the Tribunal was a necessary party and petitioner having failed to do so, the petition is not maintainable. Reliance has been placed in the case Birendra Nath Mukherjee v. State of West Bengal and Others, (Reported as Air 1993 Calcutta 94]. However, in view of my conclusions on merits, I do not consider it necessary to record any finding on this objection.

(16) In view of my foregoing discussion, the petition stands dismissed.