Bajaj Departmental Store vs Municipal Corporation Of Delhi
1994 Latest Caselaw 822 Del

JUDGMENT

(1) This is an application filed by the plaintiff under Order 39 Rules 1 and 2 Cpc seeking injunction to restrain the defendant Municipal Corporation of Delhi from demolishing/sealing property bearing No.M-3, Ndse Part-II, New Delhi.

(2) According to the plaintiff the completion certificate in relation to the building was issued to the plaintiff on 22.7.1987. The plaintiff has been leasing out the property to various tenants and the building has been assessed to house tax.

(3) MR.R-K-ANAND learned Senior Counsel on behalf of the plaintiff argued that on 24.11.94 officials of the defendant Mcd came at the spot and conveyed that they will demolish and seal the property in dispute on 29.11.1994. Mr. Anand has contended that no show cause notice either for demolishing the property or for sealing the property was given by the MCD. In the alternative he has argued that in any event of the matter the notice was not properly served on the plaintiff as there was no provision for pasting the notice on the said property. The suit was instituted on 28.11.94 and Court directed the Standing Counsel of the Mcd to produce the records of the case and thereafter records were produced. I have gone through the records pertaining to the case.

(4) Learned counsel for the defendant Mcd Mr.K.K-Buchher has stated that in the plaint plaintiff has described itself as a firm and has concealed the fact that it was a private limited company. On the other hand, Mr.Anand has contended that it has been stated in the plaint that the plaintiff is a firm as the demolition notice was issued in the name of Ms/s Bajaj Departmental Store. This aspect of this matter is relevant because' if it is a company the service of the notice has to be effected in terms of Sec. 444(l)(a) of the Delhi Municipal Corporation Act (for short the Act) and in case of a partnership firm service of the notice has to be effected in the manner prescribed in Sec.444(l)(b) of the Act and in other cases service has to be effected in the manner prescribed in Sec.444(l)(d) of the Act which provides that in case person is not found then the notice can be affixed on some conspicuous part of his last known place of residence or business. On the one hand, Mr.Anand has contended that no demolition notice was served on the plaintiff and if no demolition notice was served on him, then how the plaintiff came to know that the notice was not in the name of M/s Bajaj Departmental Store (P) Limited but in the name of Bajaj Departmental Store. It seems that plaintiff came to know about the pasting of the Notice but had pleaded non- receipt of the said notice and on technical ground of pasting the notice not in the presence of witnesses seek an injunction from this Court against unauthorized construction. I have seen the original file. Notices were issued in relation to unauthorised construction carried out by the plaintiff in the said building and every time after the notice was sent by the Mcd in utter disregard to the notice the plaintiff went on with unauthorised construction in the property in question. Mr.Buchher has also brought to my notice Notification issued by Government of India, Ministry of Home Affairs which has been issued in exercise of the powers conferred by sub-section (1) of Sec.345A of the Delhi Municipal Corporation Act, 1957 regarding sealing of unauthorised construction wherein it has been mentioned in sub-rule (2) of Rule 3 that :- "A copy of the order made under sub-rule (1) shall be delivered to the owner or occupier of the premises or unauthorised construction immediately after the sealing of such premises or unauthorised construction and in case the owner or the occupier is not available at the site the said copy may be pasted at some conspicuous place of the said premises or unauthorised construction."

(5) A complete chart showing the quantum and extent of unauthorised construction has been filed by the MCD. It has been stated in the written statement filed by the defendant that during the routine inspection in 1993 unauthorised deviation against the sanctioned plan was detected on 8.4.1993 and a show cause notice under Secs. 343 and 344 dated 8.4.93 was issued to the plaintiff and as the said notice was declined the same was pasted at the site and an endorsement to that effect was made on the copy of the notice itself. Since no reply was received demolition notice dated 16.4.93 was issued. No compliance of the said notice was observed and accordingly demolition order dated 23.4.93 was passed by the Zonal Engineer ( Building) of the Zones concerned. Mr.Buchher has highlighted the fact that before the said demolition order could be executed the plaintiff continued with unauthorised construction in the premises, excess coverage of basement floor, ground floor and first floor had been done. The extent of unauthorised construction is apparent from the report regarding the property in question which is annexed with the written statement as annexure 'A'. Mr.Buchher has also shown me the office nothings which state that the tenant and the representative of the plaintiff also appeared before the officer of the Municipal Corporation. According to Mr.Buchher the compoundable area on the basement, ground floor, first floor is 450 sq. ft. each and on the second floor is 360 sq.ft. and the non-compoundable area on the basement, ground floor and first floor is 305 sq.ft.and on the second floor is 1792 sq. ft. According to the learned counsel for the defendant the plaintiff has to pay a sum of Rs-17,90,076.00 for area which is compoundable and area in excess of that has to be demolished/sealed being non-compoundable area.

(6) In view of the records and reply filed by the defendant, plaintiff has failed to establish a prima facie case and even the balance of convenience is not in favor of giving any order restraining the defendant Mcd from doing its lawful obligations under the Delhi Municipal Corporation Act and Rules and Bye-laws framed therunder. The application is devoid of any merit. The same is dismissed.

(7) Suit be listed before the J.R. on 23rd February, 1995 for further proceedings.