Jmp Manufacturingg Co. Pvt. Ltd. vs Delhi Development Authority
1995 Latest Caselaw 970 Del

JUDGMENT

R.C. Lahoti, J.

(1) This common order shall govern the disposal of two petitions as common questions of fact and law arise in the two. The property involved is shown in the site plan Annexure -C (in Cwp 4776/93). It appears to be one plot of land. The area covered by hatches belongs to M/S. Jmp Mfg. Co. Pvt Ltd., the petitioner in Cwp NO. 4776/93. The property situated on southern side, contiguous to the property above said belongs to M/S. Prem Chand Kapoor, Balram Kapoor and Kailash Kishore Kapoor, petitioners in Cwp 939/94. It is not disputed that this piece of land forms part of khasra No. 241, 242, 243, 244 245/1, situated in extended Abadi area of village Budhpur, Bijapur, Delhi. The construction of the petitioners is in progress which is sought to be sealed and demolished as unauthorised construction by the respondent DDA. The petitioners seek writ, order or direction prohibiting such demolition or sealing of the structure so far constructed on the above said piece of land.

(2) According to the petitioners the construction on the above said piece of land was commenced in the year 1990-91 and 1991-92. By notification dated 24.8.1963 issued in exercise of the power conferred by sub-clause 9(1) of clause (3) of section 507 of the Delhi Municipal Corporation Act, 1957, the M.C.D. with the previous approval of the Central Government exempted the rural areas lying within village Abadis from the provisions of Sections 332 to 336, 342 and 347 of the Act with effect from 19.11.1959. This exemption came to an end on 6.5.1992 when in exercise of the power conferred by S. 12(1) of the Delhi Development Act, 1957, the Administrator of Union Territory of Delhi declared 9000 hector area is `Development Area' which included the said land as well. Prior to 6.5.1992, no law prevented the petitioners from raising any construction of their own choice on their own land. It is a vested right incapable of being taken away by the notification dated 6.5.1992. It is submitted that a structure, construction whereof had commenced prior to 6.5.1992 is entitled to be completed as per the plan of the owners without regard to the provisions of the Delhi Development Act, 1957; the relevant building regulations having been extended to the land of the petitioners w.e.f. 6.5.1992 only.

(3) The respondent - Dda has strongly refuted the petitioners' plea of the construction work having been commenced by the petitioners prior to 6.5.1992. According to the Dda this construction had commenced after the issuance of the notification dated 6.5.1992. The Dda has further submitted that after the notification of the area as a development area, no development of any nature could be carried out on the land in question without obtaining the permission in writing from the DDA. On 6.4.1993, report Annexure R2 was received from the Assistant Commissioner of Police informing that the petitioners were making unauthorised construction. It was followed by another similar communication dated 10th May, 1993, Annexure-R3. The field staff of the Dda had reported on 14.1.1993 (Annexure-R4) the unauthorised construction having commenced on the land in question. As per the report, there were coming up three halls-one each on the ground floor, first floor and second floor. On 14.1.1993, a notice (Annexure R-5) was issued under Section 30(1) followed by an order under Section 31(1) of the Delhi Development Act. Efforts at serving the notice failed on 8th to 22nd January, 1993 as none was available to accept the service and hence service was effected by affixture at the site. Another notice dated 2.2.1993 (Ex. R6) also could not be served personally and had to be affixed at the site on 15.2.1993. As none appeared to show cause against, the order of demolition (Annexure-R7) was passed on 26.2.1993 and was served by affixation on 10.3.1993 for failure of personal service in similar circumstances. 3.1 Pursuant to the interim orders made in these very petitions, hearing was given to the petitioners by the Dda . The petitioners filed replies which were considered and on 23.12.1994 vide Annexure R9 the order of demolition has been reiterated. 3.2 It is also pointed out that the petitioners have made a material concealment of facts and made an abuse of the process of the court. Cwp No. 4776/93 has been filed by M/S Jmp Mfg Pvt Ltd through its director Shri Manoj Kapoor. Shri Manoj Kapoor is none else than the son of Shri Prem Chand Kapoor, petitioner No. 1 in Cwp No. 939/94. The three petitioners in the petition No. 939/94 are all closely related with each other as members of the same family. These three petitioners had filed civil suit No. 276/93 in the court of Civil Judge seeking a permanent injunction restraining the respondent Dda from demolishing or sealing any portion of the very same property which is the subject matter of these petitions. By order dated 22.2.94 (Annexure R8) the suit was directed to be dismissed as the court was of the opinion that the conduct of the petitioners was not worthy of indulgence being shown by the court. This material fact has not been disclosed by the petitioners.

(4) We have called for the record of civil suit No. 276/93 and perused the record of the proceedings therein. After the conclusion of the hearing in these CWPs Balram Kapoor petitioner No.2 has in compliance with the order of the court dated 12.10.1995 filed his affidavit on 21.10.1995 bringing on record the details of several legal proceedings initiated by the petitioners in their chronological order. We may notice the relevant events and material facts in the succeeding paragraphs. 4.1. On 20.3.1993 the three petitioners in Cwp 939/94 had filed a civil suit ( No. 276/93 )in the court of Sub Judge 1st Class, Delhi. Municipal. Corporation of Delhi alone was imploded as a defendant. Plot No. 241/245/2 forming part of khasra No. 106 and 147 were subject matter of this suit. The plaintiffs had sought for a permanent injunction restraining the defendant Mcd from carrying out demolition of the construction standing over the plot. The plaint nowhere states the date of commencement of construction and the stage at which the construction was on the date of the suit. Nature of the construction is stated to be residential. On 28.6.93 the plaintiff sought for impleadment of the Dda which was allowed and the plaint was amended. 4.2 The learned sub Judge directed appointment of a local commissioner. Ms. Raj Bala Sharma advocate-who inspected the spot on 2.2.93. What she found may be extracted and reproduced from her report as under : "WHENI reached at site I saw that the disputed plot was on main road and it is constructed three storeyed all the walls of the building and all walls are unplastered. This three storeyed building is only lintered. There was only two rooms in this building. Besides this there were only 4-5 temporary rooms of labour which was demolished and main gate was broken. Some iron door and windows was lying there and all the materials of construction i.e. bricks and saria cement lying there. Firstly I saw the front portion of the disputed plot. I found that all the surrounding walls was in a falling down condition and the canopy was demolished and the pillars on which the canopy is erected and whole of the load has come down and the pillars of the canopy was in a dilapidated condition. I found that the front portion of the building can fall down at any time and it has become a danger to the whole of the building if further demolition is not stopped."

4.3 The main grievance of the plaintiffs was against the threatened demolition without serving a notice on the plaintiffs. The court was of the opinion that the controversy could be resolved by serving a notice on the plaintiffs which the Dda was willing to do and thereby affording the plaintiffs an opportunity of hearing in accordance with law. The plaintiffs were not agreeable. The Court directed ad interim injunction granted to the plaintiffs on 20.3.93 to be vacated and the suit to be dismissed. The Court has adversely commented on the conduct of the plaintiffs in its judgment dated 22.2.94. To quote:

"4.The defendant Dda was imploded and they filed written statement also. It was claimed that the plaintiff has not come to the court with clean hands and has suppressed the material facts and that jurisdiction of this court is barred under provisions of Dda Act. On merits it was claimed that a junior engineer of Dda visited the suit on 14.1.93 and found the unauthorised construction at the site. The junior engineer reported the matter to the officer on the same day and thereafter the show cause notice was served by visiting the site on 22.1.93 through process server since no one was found there to receive the notice. It is, further, claimed that call letter was sent on 2.2.93 but none appeared and finally the demolition order was passed on 26.2.293. It is claimed that the plaintiff sloped and the complaint dt. 10.5.93 regarding unauthorised construction was received from Sh P.S.Bazaz, Additional Commissioner of Police Delhi and a demolition squad went to the suit property on 28.6.93 to demolish the unauthorised construction and in fact some portion of the building and its boundary wall was demolished. It is claimed that the action of the defendants is legal, valid and under provisions of Dda Act."

"5.The defendant Dda further in order to avoid the controversy regarding service of show cause notice served the fresh show cause notice to the plaintiff in the court and the learned counsel for plaintiff was directed to produce them in the court on 28.1.94. Learned counsel for the plaintiff on 28.1.94 sought some more lime to produce the plaintiff and he was directed to produce the plaintiff on 14.2.94. However, on 14.2.94 the counsel stated that he did not want to produce the plaintiff to receive the fresh show cause notice in the court and stated that any order may be passed by the court." 4.4. The plaintiffs went in appeal ( Mca 113/94) before the Additional District Judge Delhi who by order dated 17.5.94 disposed of the appeal accepting undertaking of the appellants as was offered, to produce the plaintiff before the trial court for accepting the notice. The date 26.5.94 was appointed as a date of appearance for the plaintiffs before the trial court. Simultaneously the plaintiffs had also preferred on, or about 4-3-1994 a, review application before the trial court seeking review of the order dated 20.2.94. The plaintiffs did not seriously pursue the review application though notice thereon was issued to opposite party. They did not also comply with the order of the appellate court which was invited by the plaintiffs themselves. They failed to appear on 26.5.94 before the trial court. On 6.10.95 the trial court directed the review application to be dismissed in default of appearance. 4.5 During the pendency of the civil suit, Jmp Mfg Co Pvt Ltd filed Cwp 4776/93 on 12.10.1993 in this Court. Vide para 7 the factum of filing of the civil suit and therein an interim injunction having been granted by the trial court on 2.7.93 is stated.The petitioners have also cleverly stated that plots forming subject matter of the civil suit and of the writ petition were different. The civil court having granted an ad interim injunction in identical facts has been highlighted so as to persuade this court in issuing ad interim writ which was done on 13.10.93. 4.6 On 21.2.94, a day before the dismissal of the suit, the three plaintiffs in the civil suit filed Cwp 939/94. Therein also the factum of filing of the civil suit is stated which is also stated to be pending. Vide paras 12 and 13 factum of filing of the writ petition 4776/93 is stated persuading this court to form an opinion that this court may issue an ad interim writ and also entertain this petition in spite of pendency of the civil suit as the issues arising for decision were the same as in Cwp NO. 4776/93. On 22.2.94 this Court directed an ad interim writ to issue " in view of interim orders made in a similar mailer".

(5) Having heard the learned counsel for the parties, we are satisfied that the petitioners are not entitled to any relief in exercise of the writ jurisdiction of this court. Whether or not the construction had commenced prior to 6.5.92, the date of notification (Annexure Rl) is a seriously disputed question of fact whereon it is not possible to record any finding in exercise of writ jurisdiction. It needs production of evidence and its appreciation. Though the learned counsel for the petitioners has tried to persuade us to draw an inference from the documents available on record of the work having actually commenced prior to 6.5.92 but having given our anxious consideration to the documents in the light of the submissions of the learned counsel we do not think that such an inference can be drawn. There is yet another hurdle in the way of the petitioners. The petitioners' own case is not that whatever construction they were raising had stood completed and finished on 6.5.92. According to them the work was in progress on the date of the notification u/s 12(1) of Delhi Development Act, 1957. Section 12 of the Delhi Development Act, 1957 provides as under : 12. Declaration of development areas and development of land in those and other areas :- (1) As soon as may be after the commencement of this Act, the Central Government may, by notification in the Official Gazette, any area in Delhi to be a development area for the purposes of this Act : Provided that no such declaration shall be made unless a proposal for such declaration has been referred by the Central Government to the Authority and the Municipal Corporation of Delhi for expressing their views thereon within thirty days from the date of the receipt of the reference or within such further period as the Central Govt may allow and the period so specified or allowed has expired. 2. Save as otherwise provided in this Act, the Authority shall not undertake or carry out any development of land in any area which is not a development area. 3. After the commencement of this Act no development of land shall be undertaken or carried out in any area by any person or body (including a department of Government) unless - (i) where that area is a development area, permission for such development has been obtained in writing from the Authority in accordance with the provision of this Act. (ii) where that area is an area other than a development area, approval of, or sanction for, such development has been obtained in writing from the local authority concerned or any officer or authority thereof empowered or authorised in this behalf, in accordance with provisions made by or under the law governing such authority or until such provisions have been made, in accordance with the provisions of the regulations relating to the grant of permission for development made under the Delhi ( Control of Building Operations) Act, 1955 (53 of 1955), and in force immediately before the commencement of this Act. Provided that the local authority concerned may [ subject to the provisions of Section 53-A] amend those regulations in their application to such area. (4) After the coming into operation of any of the plans in any area no development shall be undertaken or carried out in that area unless such development is also in accordance with such plans. (5) Notwithstanding anything contained in sub-sections (3) and (4) development of any land begun by any department of Govt or any local authority before the commencement of this Act may be completed by that department or local authority without compliance with the requirements of those sub-sections." A plain reading of the above said provisions shows that after coming into operation of the provisions of the Act no development could be undertaken or carried out unless it be in accordance with such plans whereon permission has been obtained in writing from the authority. The prohibition applies both to commencement and continuation of the work. The very use of the words "undertaken or carried out" in subsection (3) of S. 12 is suggestive of legislative intent that the prohibition would apply not only to work which was to commence but also to work which though having been commenced earlier was yet to be completed on the date of its applicability and building activity was required to be continued ahead towards completion. Assuming that the raising of the structure had commenced prior to 6.5.92 it could not have been proceeded further. It was obligatory on the part of the petitioners soon on the notification dated 6.5.92 having been issued to stop their construction, have the plans sanctioned by the authority and modify their development plan in accordance with the sanctioned plans, if necessary. The provision of Delhi Development Act, 1957 are all in public interest and enacted for securing the avowed planned development of Delhi. The only exception carved out by sub-section (5) of Section 12 is in favor of development of any land begun by any department of Government or any local authority which can be completed by the department or local authority without compliance with the requirement of S. 12 even after the coming into operation of the provisions. We are of the opinion that the petitioners are not entitled to any relief in exercise of our writ jurisdiction. The way in which the petitioners have indulged into invoking the jurisdiction of the courts in different for a also disentitles them from indulgence being shown in the discretionary writ jurisdiction of this court. If the jurisdiction of 565 the civil court had already been invoked they should have stayed there and complied with the orders of the court, more so when the order of the Addl District Judge was one which was invited by the plaintiffs themselves. The facts stated in para 4 and its sub-paras above clearly go to show that the order in civil suit was utilised for the purpose of securing ad interim writ in writ petition No. 4776/93 and the latter interim order was utilised for the purpose of securing interim relief in Cwp 939/93 by the plaintiffs in the civil suit and then abandoning the suit abruptly without availing the opportunity of adjudication on merits. The petitioners in the two petitions before us and the plaintiffs in the civil suit are not strangers to each other. The most material issue is the date of commencement of construction, which is a disputed question of fact. The petitioners in Cwp 939/94 have missed the opportunity of having that issue decided as they have most unceremoniously abandoned their civil suit. Both the petitions are dismissed with costs quantified at Rs. 2500.00 in each of the petitions.