Anz Grindlays Bank Pie vs The Commissioner, Mcd And Ors.
1995 Latest Caselaw 427 Del

JUDGMENT

R.C. Lahoti, J.

(1) There are two suits filed by two sets of persons touching the same property and seeking more or less : identical reliefs, though in a bit little different backdrop of events. Two applications in the two suits seeking similar reliefs have been heard analogously and are proposed to be disposed of by this common order.

(2) In the peculiar facts and circumstances of these cases, the length and the vehemence with which the matters have been argued by the learned counsel appearing for the parties require the facts being noticed in a little more details. On each and every point arising for decision, even at this preliminary stage of the suits, the parties and the learned counsel have been at divergence. The only point on which all of them have expressed consensus is that some of the issues arising for decision have far reaching implications and consequences of significance for the public at large.

(3) On 19.11.1994, Anz Grindlays Bank, (hereinafter referred to as the Bank, for short) has filed suit No. 2581/94 accompanied by an urgent application seeking ad interim injunction. It was a non working Saturday. Counsel for the plaintiff made a special mention, impressing upon the court the urgency involved, highlighting the irreparable injury which the plaintiff would suffer by sealing and/or demolition of the premises in its occupation, persuading the court to pass an exparte order of interim injunction at least for four days, the date of hearing after notice to the opposite party having been appointed as 23.11.1994.

(4) The Commissioner Mcd, Smt .Usha Devi and M/S Aggarwal Developers Pvt Ltd the three have been imploded as defendants 1, 2 and 3 respectively. The suit premises are situated on plot No. M-l, Ndse II. There is a building with a basement and two and a half floors above. If the basement is to be counted as a floor, there are three-and-a-half floors in all.

(5) According to the plaintiff bank the ground floor and the basement of the building have been obtained by it on lease and possession secured w.e.f. 1.5.94, though the lease deed was registered with the Sub Registrar of Assurances on 6.6.94. The completion certificate in respect of the building given on lease to the bank comprising of basement and the ground floor admeasuring the super area of 12404 sft was handed over to the plaintiff bank. (The completion certificate is not filed with the plaint). The lease premises were being used for commercial purpose ever since 1961-62, as reflected by the inspection book of M.C.D. of the year 1961-62.

(6) On 17.11.1994 some officials of Mcd came to the Manager of the bank to tell him that certain portion of the leased premises was unauthorised and hence was liable to be demolished and sealed. No notice was served on the bank. The proposed action of the M.C.D. officials having been strongly resisted by the bank officials, the M.C.D. officials returned but repeating their threat to come again after arranging police help to translate into action their threat of sealing and demolition of the premises.

(7) The Bank has sought for the relief of perpetual injunction in its favor restraining the Mcd I defendant No.1 from carrying out any demolition/sealing of the premises under the tenancy of the plaintiff.

(8) The grounds on which the relief is sought for by the plaintiffs are stated in para 10 of the plaint. Briefly summed up they are:-

(1)Because no notice either in respect of the sealing of the premises or in respect of proposed demolition was served on the plaintiff;

(2)Because the entire area of the locality is being used for commercial purposes; the defendant No.1 cannot adopt a policy of pick and choose by proceeding against the plaintiff alone and not taking a similar action of restraining commercial activities of others in the area;

(3)Because no opportunity of hearing has been given to the plaintiff; the plaintiff has not even been told what is unauthorised user, or the unauthorised construction and what is the extent of each of them;

(9) The grounds taken vide clauses (c) and (j) of para 10 of the plaint may be reproduced as they are:

(C)Because to the best of the information available with the plaintiff there is no unauthorised construction in the premises, which requires demolition under the tenancy of the plaintiff;

(J)because the plaintiff has not violated any of the provisions of the Dmc Act 1957.

(10) The defendants No.2 and 3 are yet to make an appearance in the case.

(11) The defendant No.1 has filed its reply to the plaintiff's application under Order 39 Rules 1-2 CPC. All the material averments have been denied. It is contended that the suit does not lie and that the plaintiff does not deserve being allowed any interim relief.

(12) The entitlement of the plaintiff bank to use the tenancy premises for commercial purpose has been seriously disputed. It has been denied that the premises have been in commercial use ever since 1961-62 not to talk of their having been in such use since before 1961-62. It is stated that the building plan in respect of the premises in question was sanctioned by Mcd vide No. 55/A/HQ/87/171/AE(B)/HQ dated 22.5.1987 for residential purpose. Again the revised building plans were sanctioned vide No. 794/B/HQ/90/74/AE-1 dated 30.1.1991 for residential purpose and even the completion certificate had been. issued permitting only residential use of the building. However, after obtaining the completion certificate the building owner Smt Usha Pathak carried out unauthorised construction of excess coverage at the basement, ground floor, first floor and second floor, by covering the second floor completely ( i.e. 100% coverage) and by unauthorisedly making direct entry to the basement through staircase from the second and third floor with mumty which was noticed on 21.3.94. Vide File No./92/B/UC/SZ/94 dated 21.3.1994 notice to show cause was issued to the building owner Smt Usha Pathak and as she failed to reply, after following due process of law under Sections 343 and 344 of the Delhi Municipal Corporation Act (hereinafter Dmc Act, for short) demolition order dated 29.3.1994 was issued and served on the owner-builder. The owner builder Smt Usha Pathak has challenged the action of the Mcd by filing an appeal under Section 343(2)/347B, registered as Appeal No. 670/AT/MCD/94 before the Appellate Tribunal Mcd which is pending there. User by the plaintiff of the tenancy premises for commercial purpose when it was sanctioned for residential purpose only, coupled with conversion of basement, meant for storage only, into commercial use, were all in brazen contravention of the sanctioned plan, Master Plan and the Building Bye-Laws and the same is actionable. The interim injunction deserved to be vacated both in equity and law, also in public interest.

(13) The Commissioner ( Land and Projects) Dda has informed the Mcd that lots of commercial establishments were coming up on both sides -of this locality, which was in violation of the Master Plan norms. The Dcp (Traffic) has also invited the defendant's attention to the traffic obstructions and hazards being created by the user of suit premises for commercial purpose which was resulting in grave public inconvenience also.

(14) The plaintiff being merely a tenant in the suit premises, the suit does not lie at his instance in so far as the challenge to the exercise of statutory power by the Mcd under Ss. 343/344 of Dmc Act is concerned.

(15) The suit filed by the plaintiff is premature. Show cause notice u/s 345A of Dmc Act for sealing of the premises- subject matter of unauthorised user- has been issued but no sealing orders have been passed. The only remedy available to person aggrieved is to file an appeal under Section 347B of the Dmc Act.

(16) A number of documents have been filed by both the parties which will be referred to at their appropriate places.

(17) Immediately a reference deserves to be made to an affidavit dated 24.1.1995 sworn in by Mr J.M. Mehta, Deputy Assessor &. Collector South Zone Mcd, which affidavit proposes to expose and demonstrate the falsity of the entry in the Inspection . Book of the property tax department of Mcd, heavily relied on by the plaintiff Bank.

(18) On behalf of the plaintiff certified copy of an entry in the Inspection Book of the property tax department of Mcd indicating an inspection made on 29.1.1962 of the building in question i.e. M-l, Ndse Ii has been filed which shows the property being then used for shops and godowns. The Deputy Assessor &. Collector alleges this inspection report to be false and fabricated and 'planted' in the record in collusion with some one of the subordinate municipal staff. He has scrutinised all the relevant record and brought out and put forth for the consideration of the court the following circumstances in his affidavit :

A)For the first time the construction plans were got sanctioned on 30.3.65 prior to which this was a vacant plot of land. Thus, there being construction prior to 30.3.65 is wholly impossible.

B)That the entry of plot No,M-1 has been planted in the inspection book. The said entry is in an ink which is wholly different from the ink used on all adjacent pages. The signatures of the Inspector have been ex facie forged as is evident to the naked eye from the comparison of the admitted signatures of the Inspector on other pages. The entry of property No. M-1 appears after entry of property No. M-3, a fact which is unusual. This is only because some blank pages are left in the Inspection Book for any inspection which may have been done subsequently in that period and in the present case the blank page in relation to M-1, was available only after M-3 and not prior to M-3.

C)That contemporaneous documents available in the property tax file show that a vacant plot was inspected on 26.1.1962 and assessment has been made according to that inspection. Obviously a vacant plot on 26.1.1962 could not convert itself into a built up plot in three days. The first assessment of the property after the construction, was made on 1.6.1969 and even as per that assessment there were no shops existing at the site."

THE affidavit is accompanied by photo copies of the following documents :

(I)Inspection report dated 26.1.1962 showing the plot suit property as a plot merely ( i.e. unconstructed),

(II)Notice of assessment dated 5.3.1962 proposing assessment of the suit property as 'plot' in possession of the owner.

(III)Assessment order dated 24.3.1969 assessing the property as new construction; assessment effective from 1.6.69.

(IV)Assessment amendment report based on the inspection dated 5.8.1971 proposing an amendment in assessment on account of addition of one Du (dwelling unit) consisting of one bedroom, attached Wc and one kitchen effective from 1.9.71. On the back .side of the report Chessborough Pond Inc is shown as tenant on the ground floor w.e.f. 1.9.71. The details of the premises in occupation of tenant show all residential portions such as canopy, big hall, attached Wc, bath, bed rooms, kitchen etc. There is a remark that part of the property on the ground floor was under construction which would be completed afterwards. There is nothing in the report to suggest any commercial use of the property.

(V)Order of assessment dated 7.5.70 effective from 1.4.1970 revising the assessment of the property on account of addition of one bed room with attached WC.

(19) Yet another affidavit sworn in by Mr.RBS Bansal, Zonal Engineer South Zone Mcd has been filed. He has perused the entire file relating to the sanction of building plans in regard to plot No. M-l which is the suit property. He states that there was no building existing on the plot in question prior to 1965. For the first time the building, plans were sanctioned on 30.3.65 and sanction conveyed to the owners on 8.4.65. Pursuant to the sanctioned plan of the building only a garage and a servant quarter were constructed. Remaining plan had lapsed. On 29.4.68 a fresh application for sanction of building plans was received and sanctioned on 14.5.68. Against it only half of the ground floor was constructed. The remaining plans lapsed and again got re-sanctioned in 1971. Once again the additions/alterations were sanctioned in 1987 and then in 1991. Sanctions were only for residential purpose since the land user in the area was for residence only. Prior to 1965 no construction existed on the plot in question.

(20) As to reliance by the plaintiff on a certain entry in the house tax record of 1961-62, it is submitted that senior officer Narbada House, Narbada Project New 498 Delhi has vide certificate dated 13.8.88 certified the house having been taken by the Gujrat Govt on a rent of Rs. 4000.00 for use exclusively as residence of its employees between 1976 and 1980.Assuming without conceding that if any house tax was realised on commercial basis that would not mean that misuser had stood regularised. In fact, as revealed by reports from the house tax department the property has been assessed for residential purpose only ever since inception till date.

(21) Suit NO. 106 Of 1995 On 10.1.95, S/Shri Vishwa Bandhu Aggarwal, R.C. Agarwala and Aggarwal Developers Pvt Ltd have filed suit No. 106/95 impleading Delhi Development Authority ( the Dda, for short), M.C.D and Union of India through the Secretary, Ministry of Urban Development seeking an identical relief, that is, a permanent injunction restraining the sealing and demolition of the premises. In addition, these plaintiffs have sought for a decree of declaration to the following effect:

"(B)Pass a decree of declaration that the additional condition in the words "and where already three storeys and a barsati was permitted ( as per density calculated in the sanctioned layout)" in clause (ii) under the head of Specific Premises in Delhi master Plan- 2000 published vide notification of defendant Delhi Development Authority No. S.0.606(E) Dated August 1, 1990, is null and void and of no effect, and that the said clause (ii) should, instead, read as follows:

"(II)In case of residential plots above 250 sqm facing 24 m and above road, (a), the Par shall be increased by the maximum ground floor coverage (b) maximum height shall be 14 m and (c) the number of dwelling shall be as given in the brickets."

(22) The net of this suit is much wider. It appears that looking at the defenses raised by M.C.D. in the other suit, the plaintiffs herein have become wiser. They have laid a more fundamental challenge to the proposed action of the MCD. It appears that the plaintiffs apprehending that the extent of square yards which have been covered by construction and the number of floors along with the basement which have come up would not be legally sustainable for their being in violation of the Master Plan, have laid a challenge to the constitutionality of the Master Plan itself.

(23) The locus standi of the three plaintiffs in suit No. 106/95 to file the suit is founded on an agreement entered into by the plaintiffs in the year 1990 with Smt Usha Pathak the owner, for development of the suit property pursuant whereto they have carried out additions/alterations in the suit property in accordance with the sanction conveyed to Smt Usha Pathak by the M.C.D. through its letter dated 30.1.1991. The plaintiffs claim to have come into occupation of part of the premises on 1st and 2nd floors. Delhi is governed by two notified Master Plans - the earlier one being of 1962 and the present one being Master Plan-2000. The area of the suit plot is 981 sq mts. It falls in the category of 'above 500 to 1000 sq mts'. The earlier Master Plan of 1962 provided entitlement to this category of plots for a maximum ground coverage of 40%, Far 100, number of DUs 5 and maximum height of 11 mts. The new Master Plan- 2000 further provides that in case of residential plots above 250 sq mts situated ' on road with width of 24 mts and above and where already three stories and a barsati was permitted ( as per density calculated in the sanctioned lay out), (a) Far shall be increased by maximum ground floor coverage (b) maximum height shall be 14 mts and (c) number of DUs shall be 7 ( instead of 5).

(24) According to the plaintiffs the suit plot faces Ring Road which is more than 24 mts wide and would therefore qualify for 40% additional ground coverage. However, the said benefit has been sought to be & denied to the plaintiffs by the defendants in view of the condition prescribed in the Master Plan- 2000, which speaks of such benefit being available only to such plots where already three stories and a barsati was permitted as per density calculated in the sanctioned layout. Admittedly, the suit plot was one where only two stories and a barsati was permitted in the Master plan 1962.

(25) The plaintiffs have founded their suit on the following grounds :

(1)There is no reasonable or intelligible basis for differentiating the suit plot from other plots in Safdarjang Development Area, Panchsheel Enclave, Pamposh Enclave, etc. The condition laid down for denying benefit of additional coverage for the residential plots of area admeasuring 250 sq mts facing 24 mts wide road is wholly discriminatory, arbitrary and having no nexus with the purpose sought to be achieved and hence is ex facie violative of Article 14 of the Constitution.

(II)The State Govt which is in power in Delhi is Bjp Govt which has in its election manifesto assured the Delhi citizens that on their coming into power they would permit construction of an additional floor on the existing houses constructed in Delhi and regularise all the unauthorised colonies. To that effect the cabinet resolution has also been passed. The respondents are, therefore, estopped on principle of promissory estoppel from demolishing and sealing the said property even if unauthorisedly raised.

(III)That notice under Section 343/344 of the Delhi Municipal Corporation Act is not signed by the Commissioner while the notice can be issued only by the Commissioner.

(IV)That no notice was served on the plaintiffs and they were not allowed any opportunity of hearing.

(V)That the impugned action has been initiated for extraneous reasons and grounds not germane to the relevant provisions and hence are malafide.

(26) Applications under order 39 Rule 1-2 CPC. Hearing on applications seeking ad interim injunction was taken up. All the material plaint averments have been disputed and all the contentions raised by the plaintiffs have been branded as unsustainable.

(27) It may be noted clearly that Smt Usha Pathak, the real owner and builder of the property does. not figure as' a plaintiff in any of the two suits. She is the appellant comfortably prosecuting her appeal before the Appellate Tribunal Mcd, under Section 343(2)/347B of the Dmc Act. Thus, on the impugned action initiated under Section 343/344 of the Mcd Act there is a three pronged defensive attack-one by the owner, one by the builder and one by the tenant.

(28) It may also be stated that during the course of hearing the learned counsel for the plaintiff in suit No. 2581/94 has certainly made a departure from the scope of the suit as framed and raised a few contentions which are not set out in the pleadings. I may place on record that during the course of hearing which continued day after day, documents after documents were taken out by the learned counsel from his brief and handed over to the court and the counsel for the MCD. At the close of the hearing a consolidated list of such documents has been filed. In a civil suit parties are bound by their pleadings. The court would' not entertain any plea beyond those raised in the pleadings. However, in the peculiar facts and circumstances of this case, the court has chosen not to adhere strictly to this rule of pleadings and has chosen to enter into examining the several contentions raised for whatever worth they are, inasmuch such contentions are being raised frequently before the courts in Delhi and it is considered better not to brush aside the contentions as not pleaded, but to examine them on merits, as they all shall have to be decided some day somewhere. It is a judicially noticeable fact that Delhi is one of the cities striking headlines in media for the unauthorised and illegal activities of unscrupulous builders and owners creating hazards for the public health) convenience and safety just for achieving their own selfish ends and litigation before courts of law in such matters is frequent.

(29) In these cases too, just as in any other case, the court has to find whether the plaintiffs have a prima facie case, whether the balance of convenience lies in their favor; and whether they would suffer irreparable injury if they were not protected by an ad interim injunction. Apart from these the conduct of the two sets of plaintiffs shall also have to be scrutinised; the law being well settled that the jurisdiction to grant an injunction being in the realm of equity the court would not grant an injunction merely because it is lawful to do so; the court shall have to keep in view the principles of fair play, justice, equity and good conscience and find out if any one of the parties has been guilty of violating the rules of game.

(30) Satisfaction of the above said principles shall have to be found on the answers available to the following questions :

POINTS in Issue

(1)Whether the suit property was in commercial use since before 1962, and if so, its effect?

(2)Whether the suit property or any part thereof is an unauthorised construction ?

(3)Whether it was necessary to have served any of the plaintiffs in the two suits with notice under Section 343/344 of the Dmc Act ?

(3A)Whether the notice u/s 343/344 of Dmc Act is invalid for not having been issued by the Commissioner ?

(4)Whether the two sets of plaintiffs have locus standing in filing the suit ?

(5)Whether provisions of Master Plan-2000 challenged by the plaintiffs in suit No. 106/95 are unconstitutional and hit by Article 14 of the Constitution prima facie ?

(6)Whether the plaintiffs are guilty of having made material concealment of facts ? If yes, whether such conduct of the plaintiffs as disclosed by the facts found prima facie is sufficient to disentitle the plaintiffs from the discretionary relief of injunction?.

(7)Whether power to demolish conferred by Sections 343 Dmc Act is discretionary? Whether the impugned action of demolition without exercising discretion to demolish or not to demolish is arbitrary ?

(8)Whether the building in suit is being treated by authorities with hostilediscrimination?

(9)Whether the plaintiffs can take protection behind the doctrine of Promissory Estoppel and Legitimate Expectations ?

QUESTIONNo.1 : Whether the suit property was in commercial use since before 1962 ?

(31) As already noticed, the whole edifice of the Bank's case is founded on the inspection report dated 29.1.1962 ( referred to in para 6.1.1 above). Suffice it to say that the two affidavits-one of Shri J.M. Mehta, Deputy Assessor & Collector, South Zone (para 6.1.ibid) and of Shri R.B.S. Bansal, Zonal Engineer South Zone M.C.E.(para 6.2 ibid) - are enough to demonstrate the falsity of the so-called inspection report dated 29.1.62 filed on behalf of the plaintiff. The original record was kept available by the Dmc in the court and a perusal of the original record also throws volumes of doubt on the genuineness of the inspection report. Prima facie the circumstances pointed out by counsel for Dmc appeal to me. It appears that the inspection report is false, fabricated and planted.

(32) It is interesting to note that while the plaintiff in suit No. 2581/94 has pleaded at the pitch of its voice the suit property having been in commercial use since the beginning of 1962, the plaintiffs in suit No. 106/95 vide para 3 clearly aver the suit property having been acquired by its present owner under two sale deeds dated 2.6.54 and 20.3.61 as a plot of land admeasuring 1173 sq yards. It must have been built upon thereafter. If the property was a plot of land at least until 20.3.61 it does not appeal to common sense that within a short period of less than nine months it would have been developed, built upon and subjected to commercial user and that too without any sanction from any authority.

(33) I am clearly of the opinion that the suit property was not being used for commercial purpose in the year 1962.

QUESTIONNo.2 : Whether the suit property or any part thereof is an unauthorised construction:

(34) The plot measures 11783 sq yards. As against this the extent of construction on each of the floors of the building is as under : Permissible Sanctioned at the Existing Present Area Excess time existing of c.c. Basement 4222.80 2297.7 4025.19 4697.00 474.20 Ground floor 4222.80 4117.70 4405.19 5077.00 1051.81 First floor 4222.80 4117.70 4405.19 5077.00 1051.81 Second floor 2111.40 1650.20 2110.60 5077.00 2966.40

INaddition, an unauthorised stair case has been constructed, on the front side of the building, providing for entry to the basement which is in continuation of the staircase leading to the upper floors. Such a staircase is not authorised.

(35) The basement has to be used as a basement. So long as the basement is not used for a commercial purpose, the Building Bye Laws permit the construction of a two-and-a-half floors above. If the basement is put to a commercial use, the basement has to be counted as a floor which would mean that the building has three-and- a-half floors, not permitted by the Building Bye Laws.

(36) A photo copy of the completion certificate dated 8.2.94 in respect of the suit plot has been brought on record by the MCD. It shows excess coverage beyond the permissible limits but within ten percent compoundable limits having already been directed to be compounded subject to payment of the compounding fee. The building as it exists today has deviations beyond the compoundable limits.

QUESTIONNo.3 : Who is entitled to notice u/s 343 and 344 of Dmc Act ?

(37) Whether a tenant or any person other than the owner is entitled to a notice under Section 343/344 of the Dmc Act ?

(38) The provisions contained in Sections 343 to 347(B) and 347(E) of The Delhi Municipal Corporation Act, 1957 are relevant.

(39) Under Section 344, if any unauthorised construction commences, the Commissioner may require 'the person at whose instance the building or the work has been commenced or is being carried on' to stop the same forthwith.

(40) Under Section 343 the Commissioner may make an order directing such unauthorised erection or work shall be demolished by 'the person at whose instance the erection or work has been commenced or is being carried on or has been completed'. The 'person aggrieved' by such an order of the Commissioner may prefer an appeal against the order of the Commissioner to the Appellate Tribunal. No Court shall entertain any suit, application or other proceedings for injunction or other relief against the Commissioner to restrain him from taking any action or making any order in pursuance of the provisions of Section 343.

(41) Section 345-A empowers the Commissioner to order sealing of any erection or work before ordering demolition under Section 343 or stoppage of work under Section 343 or Section 344.

(42) An order of stoppage under Section 344 and an order of sealing under Section 345A are both appealable under Section 347B, the right of appeal having been vested in 'any person aggrieved' by the orders.

(43) Section 347E provides that no .Court shall entertain any suit, application or other proceedings in respect of any order or notice appealable under Section 343 or Section 347B and no such order or notice shall be called in question otherwise than by preferring an appeal.

(44) A perusal of the above said provisions shows that orders of stoppage and/or demolition are to be made against 'the person at whose instance the building or the work has been commenced or is being corned on or has been completed'. The order of stoppage does not contemplate any pre-decisional hearing being given or notice to show cause being issued before making an order. However under Section 343 no order of demolition shall be made unless 'such person' has been given a reasonable opportunity of showing cause against such order which is proposed to be made.

(45) The right of appeal is not restricted to 'the person at whose instance the erection or the work has been commenced or is being carried on or has been completed'. Right of appeal is wider. It is conferred on 'any person aggrieved'.

(46) An order of stoppage or demolition may aggrieve persons other than those at whose instance the erection or work was commenced or was carried on or was completed. All those persons who were likely to benefit from or make use of the work or erection alleged to be unauthorised, would be the persons aggrieved, though they were not the persons at whose instance it was done or was being done.

(47) Section 343 contemplates a person 'at whose instance erection or work has been commenced or is being carried on or has been completed' having been conferred with the following rights:

(1)A direction by the Commissioner to demolish, such erection or work has to be made against such person if the work is in progress or has been completed.

(2)A direction to stop the erection or work, if the same has not been completed, has to be made against such person.

(3)He is entitled to a reasonable opportunity to show cause why such order shall not be made.

(4)He is entitled to prefer an appeal to the Appellate Tribunal against the order.

IN the first proviso to sub section (1) the words "the person" mean the person at whose instance the erection or work has been commenced or is being carried on or has been completed".

(48) The owner might have inducted a tenant in the premises after the completion of the impugned erection or work. It may be that the owner has inducted the tenant and thereafter the erection or work is done on the premises.

(49) The former case presents no difficulty because the work or erection having been done by the owner he only would be entitled to notice and the tenant by no stretch of language would fall within the definition of the person entitled to notice.

(50) In the latter case, there may be two situations.

(I)The owner/landlord might have authorised and permitted the tenant to commence or complete the erection or work. Section 108 clauses (p), (q) and (h) of the Transfer of Property Act provide that without the Lesser's consent the tenant cannot erect on the property any permanent structure (except for agricultural purpose). On the determination of the lease, the lessee is bound to put the Lesser into possession of the property and may at the time of determination of the lease before restoring possession to the landlord remove all things which he has attached to the earth. If the tenant has been authorised by the owner/landlord to make any erection or work on the property then it will be the owner landlord at whose instance the erection or work would be deemed to have been commenced/carried on/completed. It will be the owner/landlord who alone would be entitled to notice.

(II)The tenant may without the consent or permission of the owner commence or complete any erection or work. The act of the tenant being inherently unauthorised, he cannot be heard claiming a notice . The landlord/owner would prevent the tenant from carrying on such erection or work and if he does not do so, fictionally for the purpose of Ss. 343 and 344 it would be deemed that erection or work was at the instance of the owner/landlord. After all it is the owner/landlord who suffers if there is any demolition in the building.

(51) During the course of hearing a single bench decision of this Court in Ram Narain vs Mcd, was referred to wherein a tenant has been held not entitled to a notice under Section 343. As is the case with the tenant, so will be the case with persons claiming under the owner. The owner may enter into a building or development contract with a builder. Any erection or work done by the builder would be at the instance of the owner though the contractor may be a personal aggrieved. The builder cannot claim a notice under Section 343 Dmc Act.

(52) Though the entitlement to notice is not of the tenant, nevertheless the tenant may be a person aggrieved by an order of the Commissioner under Sec. 343(l)/344. If the unauthorised construction exists in the premises in occupation of the tenant then the demolition is sure, to effect his peaceful possession and enjoyment over the properly. He would be a person aggrieved by an order of the Commissioner, though made against the owner/landlord. Such a tenant though not entitled to a notice and though the order may not be directed against him still would have right to prefer an appeal against the order for demolition, he being a person aggrieved by the order. Of course, during the hearing of the appeal he cannot claim any right on a pedestal higher than that of the owner/landlord under whom he claims and who has inducted him into the properly.

(53) It is clear that the plaintiff in suit No. 2581/94 being a tenant and the plaintiff in suit No. 106/95 being a builder, none was entitled to a notice under sections 343/344 of Dmc Act.

QUESTIONNo3A : Whether the notice under Section 343/344 is invalid for not having been issued by the Commissioner.

(54) Though Sections 343/344 of the Dmc Act authorise the Commissioner to take an action under the said provision, notice in the case at hand has been signed by the Zonal Engineer buildings, South Zone. Section 491 of the Act permits the powers of the Commissioner being delegated for exercise and performance by any municipal officer or other municipal employee of the Corporation.

(55) The learned counsel for Mcd has brought to my notice copy of order No. F.4(6)/63-i-Law-Corp dt 3.4.63, whereby the Commissioner has delegated his powers (inter alia) as under :- Section of Dmc Act Authority to which Nature of powers/Limit power is delegated of delegation 343 Asstt. Commissioner To order demolition of (Zone) Zonal Engineer building of works by the (Buildings) persons at whose instance it commenced or is being carried on or completed unauthorisedly. To order demolition through the Municipal Agency in court in causes. 344 Astt Commissioner To order stoppage of Zonal Engineer buildings or works (Building) commenced or carried on unauthorisedly.etc 345 Astt Commissioner To require alteration of (Zone) Zonal Engineer works (Buildings) 346 Astt Commissioner To grant completion (Zone) Zonal Engineer certificate bldg. 347 Asstt Commissioner To order restrictions on Zone use of buildings."

(56) Notice dated 21.3.94 and the subsequent notice dated 19.12.1994 under Section 344(l)/343, and communication dated 29.3.94 of order of demolition under Section 343 are both signed by Zonal Engineer (Buildings). The notice mentions the signatory having been empowered by the Commissioner u/s 491. The objection as to notice not having been issued by commissioner himself and hence being invalid fails.

QUESTIONNo.4 : Whether the plaintiffs have locus standi in filing civil suits ?

(57) The question has two facets: whether the plaintiffs in the two suits have locus standi and whether the civil suits would at all lie

(58) In Shiv Kumar Chadha vs. Municipal Corporation of Delhi their Lordships have very clearly laid down the law in the following terms : "IN spite of the bar prescribed under sub- section (4) and (5) of Section 343 and Section 347-E of the Corporation Act over the power of the courts, under certain special circumstances the court can examine the dispute falls with in the ambit of the Act " "IN some special cases where "jurisdictional error" on the part of the Corporation is established, a suit shall be maintainable.Accordingly:

(1)The court should not ordinarily entertain a suit in connection with the proceedings initiated for demolition, by the Commissioner, in terms of Section 343(1) of the Corporation Act. The Court should direct the persons aggrieved to pursue the remedy before the appellate tribunal and then before the administrator in accordance with the provisions of the said Act.

(2)The court should entertain a suit questioning the validity of an order passed under Section 343 of the Act, only if the Court is of prima fade opinion that the order is nullity in the eyes of law because of any "jurisdictional error" in exercise of the power by the Commissioner or that the order is outside the Act."

(60) None of the two cases at hand is one where the plaint alleges the suit property to be out of Corporation limits or where any jurisdictional error on the part of Corporation is established even prima facie. The construction in question was not made prior to coming into force of provisions of law violation whereof is in question.

(61) It has already been held that the two plaintiffs being tenant and builder respectively have the remedy of appeal available to them.

(62) There is no reason to make a departure from ordinary rule laid down by their Lordships in Shiv Kumar Chadha's case. The plaintiffs must seek their remedies before the Appellate Tribunal. QUESTIONNo.5 : Whether the provisions of the Master Plan-2000 are unconstitutional and hit by Article 14 of the Constitution prima facie ?

(63) Mr. Mukul Rohtagi, Senior Advocate, appearing for the builder submitted that the provisions of Master Plan-2000 are arbitrary, having no nexus with the purpose sought to be achieved and hence are unconstitutional, being violative of Article 14 of the Constitution. The facts forming foundation for such a charge are already stated in para 7.2 to 7.4 above.

(64) Mr Arun Jaitley, learned Senior Advocate for Dmc submitted that the attack by reference to Article 14 of the Constitution is wholly devoid of merit and does not hold the ground for a moment. Preparation of Master Plan and enactment of building bye laws have a laudable public purpose behind. They are based on expert opinion and research keeping in view the historical and geographical background of the development of a city and Court would not sit in appeal over the opinion of the experts and the legislative wisdom, nor substitute its own wisdom for theirs. He has referred to Article 1 ( at page 35) and 509 ( at page 403-4) of the American Jurisprudence, Vol.83,2nd Edition. It has been stated :- "THE law of zoning and planning is a combination of statutory, municipal and administrative land-use law." "A legislative body considering an application for the rezoning of land from residential to a floating commercial classification, can properly require the applicant to demonstrate the compatibility of all uses permitted in the new zone which are feasible on the land in issue. While the new district consists of a small area established within a larger area of different use the creation of the new district is not accomplished for the sole benefit of individual owners, but pursuant to a comprehensive zoning plan for the general welfare of the community."

VIDE Article 1(1) at page 35,(ibid) it has also been stated the benefits of zoning are widely recognised; zoning ordinances have been enacted for the purpose of promoting the health, safety, morals or the general welfare of the community; zoning regulations constitute an exercise of police power and must bear a substantial relation to the public health, safety, morals or general welfare.

(65) The Delhi Development Act, 1957 provides for the development of Delhi. The object as provided by the preamble and Section 6 is to promote and secure the planned development of Delhi. Master Plan is drawn up under Section 7 after carrying out a civic survey of Delhi. Section 8 provides for zonal development plan. Such plans are approved by the Central Government under Section 9. Date of operation is provided by Section 11. The mandatory provisions contained in Section 14 prohibit user of any land or building otherwise than in conformity with such plan. Then the previous user and its continuance, though inconsistent with the plan, is excepted. Section 29 makes contravention of the plan a punishable offence. Section 30 imposes penalty of demolition of contravention. All these provisions highlight the importance and utility of the Master Plan for the planned development of Delhi, the object behind and the mandatory nature of the provisions.

(66) Master Plan is prepared in exercise of the statutory power conferred by the Delhi Development Act. It is a part of the legislative activity. The preamble and several provisions of the Delhi Development Act, especially Sections 6,7,9 to 12, 14 and 29 as also the provisions of Chapter Xvi of the Dmc Act, and the Building Bye Laws clearly reveal that the lay Out plan of a colony is sanctioned by giving due regard to the proposed population density of the colony. All infrastructural facilities such as roads, parks, post offices, police stations, schools, electricity, sewerage, water supply arc planned and provided having proportion with the proposed population density of that colony. Once the colony is fully built up it is extremely difficult if not impossible to augment these infrastructural facilities.

(67) The layout plan sanctioned prior to 1.9.1962 did not have the benefit of any master plan norms. Town development bad gone on in a haphazard manner. Once the norms were established by the Master Plan all future lay out plans shall have to confirm to the norms mentioned in the Master Plan itself. The date 1.9.62 thus has a relevant nexus to the town planning norms of Delhi. Whereas two and a half floors are permitted normally in Delhi, the exception of three and a half floor is made only having regard to the following facts:

(A)The plot must be of a larger size i.e. 250 sqm. and above.

(B)The road in front of the plot must have a minimum width of 24 metres and above.

(C)The layout plan of the colony should have been approved as per the Master Plan norms. Thus those approved prior to 1.9.62 are only excluded.

(IT may be stated that when the lay out plan of South Extn. was approved it was anticipated that there would be an occupation of 10 persons per plot and thus the floors in a house which could be permitted were 2 and a half floors keeping in mind the population density of 4 persons per unit)and

(D)Three and a half floors would be permitted only in such colonies where it was so envisaged on basis of population density when the lay out plan was approved, so that all infrastructural facilities were provided accordingly/proportionately.

(68) Thus the distinction between those plots where 2-1/2 floors are permitted as against those where 3-1/2 floors are permitted is a distinction based on an intelligible classification which has nexus to the object sought to be achieved i,e. the planned development of Delhi. 3-1/2 floors will be permitted only on those plots where town planning and infrastructural facilities as also the size of the plot and width of the road abutting the plot permit such number of floors. If an extra floor is permitted in every house it would only lead to chaos and a total collapse of civic amenities worsening the quality of life in the city.

(69) The law of zoning and planning is a condition of statutory, municipal and administrative land use law. ( American Jurisprudence 2d Vol 83 para 1) The legislative judgment in a zoning matter may not be annulled simply because a court disagrees with the wisdom of such judgment. ( para 48, page 68, ibid).

(70) Very recently their Lordship of the Supreme have held in Virender Gaur & Ors vs State of Haryana & Ors : "The word environment is of broad spectrum which brings within its ambit hygienic atmosphere and ecological balance. It is, therefore, not only the duty of the State but also the duty of every citizen to maintain hygienic environment. The State, in particular has duty in that behalf and to shed its extravagant unbridled sovereign power and to forge in its policy to maintain ecological balance and hygienic environment. Article 21 protects right to life as a fundamental right. Enjoyment of life and its attainment including their right to life with human dignity encompasses within its ambit, the protection and preservation of environment, ecological balance free from pollution of air and water, sanitation without which life cannot be. enjoyed. Any contra acts or actions would cause environmental pollution. Environ mental, ecological, air, water, poUution,etc. should be regarded as amounting to violation of Article 21. Therefore, hygienic environment is an integral facet of right to healthy life and it would be impossible to live with human dignity without a humane and healthy environment. Environmental protection, therefore, has now become a matter of grave concern for human existence. Promoting environmental protection implies maintenance of the environment as a whole comprising the man made and the natural environment. Therefore, there is a constitutional imperative on the State Government and the municipalities, not only to ensure and safeguard proper environment but also an imperative duty to take adequate measures to promote, protect and improve both the man-made and the natural environment."

(71) The land and building use, Far, the number of dwelling units permitted on each plot by the Master Plan 1962 were by reference to infrastructure of the public health, sanitation and public convenience facilities which were accordingly provided for. These colonies which would be developed and those building which would be brought into existence under the Master Plan 2000 would be accompanied by corresponding provision for public convenience, public utility, public convenience and sanitation by reference to permissible Far and number of dwelling units. Merely because Master Plan-2000 lays down different standards, those buildings which had come up under the Master Plan-1962 cannot complain of hostile discrimination so as to claim parity with the buildings brought into or to be brought into existence after 1.9.1990; the foundational facts for the standards in the two being different and formulated upon survey and expert opinion:

(72) The Master Plan-1962 came into force on 1.1.1962. Master Plan-2000 came into force on 1.8.1990.

(73) Whenever there is a change in the policy, a cut off date has to be provided. Such a cut off date has to be chosen and fixed. Lapse of 18 years since 1.1.1962 is by itself a reasonable and rational basis for appointing 1.8.1990 as the date of commencement of Master Plan 2000 with a new vision on science of zoning and planning guided by drastic change in foundational data figures. A classification by reference to a particular cut off date can be reasonable ( See- Uoi vs M/S Parmeshwar Metal Works , Indian Ex- services League vs Uoi , State of Rajasthan vs Rajasthan Pensioner Samaj , State of W.B. vs Ratan Behari Dey , Mafatlal Group Staff Assn vs Rcpf (1995) 4 Scc 58)

(74) While interpreting municipal legislation framed in public interest, a strict constructional approach must be adopted.

(75) The learned counsel for the defendant has rightly submitted that if the plaintiff may complain of inequality in treatment and hostile discrimination between the two Master Plans then every one shall have to be restricted to 2-1/2 floors rather then permitting violation of law by all.

(76) A perusal of the Master Plan 2000 shows that the same has been notified by the Central Govt after considering the objections and suggestions. The Preamble to the Master Plan suggests that it is totally public purpose oriented based on historic facts and guided by expert opinion.

(77) For the foregoing reasons the challenge to the provisions of the Master Plan 2000 as unconstitutional and hit by article 14 of the Constitution cannot be sustained even prima facie.

 QUESTIONNo.6 : Conduct of Parties in Injunction Applications : Conduct of two Sets of Plaintiff  

  

 (78) In Morgan Stanley Mutual Fund vs. Kartick Dass  their Lordships have held :-    "THE court would expect a party applying for exparte injunction to show utmost good faith in making the application"  

 (79) This view has been reiterated in Bloom Dekor Ltd vs. Subhash Himmatlal Desai .  

 (80) This salutary principle of law has a trail of judicial precedents behind.  

 (81) In The King Vs. The General Commissioners for the purposes of the Income Tax Acts for the District of Kensington 1917 (1) Kb 486, on a review of authorities available till then .it has been held that the applications for injunction are very much governed by the same principles which govern writ of prohibition requiring the utmost degree of good faith the "uberrima fides"- on the part of the applicant. To quote :-    "It is the duty of a party asking for an injunction to bring to the notice of the court all facts material to the determination of his right to the injunction; and it is no excuse for him to say that he was not aware of the importance of any facts which he has omitted to bring forward"   "IF the party applying for a special injunction absented from stating facts which the court thinks are most material to form its judgment, he disentitles himself to that relief which he asks the court to grant."   "On an ex parte application uberrima fides is required and unless that can be established, if there is anything like deception practiced on the court, the court ought not to go into the merits of the case, but simply say "we will not listen to your application because of what you have done"   "The application must be refused, not on the grounds of the merits of the case but on the ground that the rule nisi was obtained by concealment of facts which ought not to have been concealed and by statements which were not in accordance with the facts"   "THE discharge of rule nisi is under the power inherent in every court to protect itself and to prevent abuse of its process."  

(82) In Basheshar Nath Vs Moga Municipality, Air 1940 Lahore 69, it was held that the maxim he who seeks equity must do equity applies to a plaintiff seeking an injunction, who must come with clean hands. The plaintiffs acts and dealings must have been fair and honest and free from taint or fraud or illegality. Unfairness or inequitable manner will disentitle him from relief.

(83) The principle has been followed by this High Court in several subsequent decisions.

(84) In Seemax Construction (P) Ltd vs. State Bank Of India Air 1992 Delhi 197 t he Court has expected the plaintiff to make full, complete and honest disclosure and avoid suppression of material facts failing which the court would dismiss the application without going into merits.

(85) Ln Anand Saroop vs. M.C.D , deliberate attempt on the part of the plaintiff to mislead the court was held enough to disentitle the plaintiff to any interim relief of injunction.

(86) Udey Chand Vs. Shanker Lal , Charanji Lal Vs. Financial Commissioner, Haryana Air 1978 P&h 326, are the cases where the Courts were exercising jurisdiction under either Article 136 or Articles 226, 227 of the Constitution. It has been held that untrue or misleading statement or suppression of material facts would be enough to disentitle the petitioner from relief in discretionary jurisdiction of the court.

(87) Recently in S.P. Chengalvaraya Naidu v. Jagananath while commenting on the non production and non mention of a document having a material bearing on the case by a litigant, their Lordships of the Supreme Court have observed "The courts of law are meant for imparting justice between the parties. One who comes- to the court, must come with clean hands. It can be said without hesitation that a person whose case is based on falsehood has no rig

(88) When a party approaches the court seeking relief of interim injunction more so when the relief sought for is projected as urgent and is accompanied by a prayer for an ex parte relief the Court places implicit reliance on the plaintiff. They are the facts set out by the plaintiff in its pleadings and the documents filed which enable the court forming an opinion whether to exercise or not to exercise jurisdiction in the matter of issuing ad interim injunction ( behind the back of the opposite party who is yet to be noticed). The court while reposing confidence in the plaintiff naturally expects him to make a clean breast of all the material and relevant facts which would enable the court forming a correct opinion and exercising judicial discretion at that stage. Mis-statement- by itself would be enough to throw out the application. If it be a concealment, the court would

(I)whether it was a relevant fact ( it being immaterial whether it would have enabled or disabled the plaintiff in securing the relief); and

(II)whether the plaintiff was in the knowledge of or could have been in the knowledge of such fact. If both the answers be in the affirmative, the plaintiff would be held disentitled. The court would not then enter into the merits of the case. The court would simply tell the plaintiff- "your conduct has been unbecoming of the confidence impliedly reposed by the court in you and so you must be shown out of the court." The plaintiff may then either withdraw the application, may be subject to terms, or suffer a dismissal.

(89) Let the facts of this case be tested on the anvil of above said principles.

(90) The plaintiff in suit No. 2518/94 has concealed the factum of pendency of appeal at the instance of the owner Smt Usha Pathak. If only the factum of the stay order issued by Appellate Tribunal being in operation would have been disclosed then the court would not have been persuaded to entertain the suit on a non-working day and grant interim relief ex parte to the plaintiff. The plaintiff had projected the urgency by pointing out that the building was going to be sealed and demolished resulting in irreparable injury to the plaintiff. There was no question of demolition when the stay order made by the appellate authority was in operation. Learned counsel for the defendant has stated that there was no decision taken as yet to seal the premises and no order made till this day for sealing the building or any part thereof.

(91) The plaintiff has also made a material concealment of completion certificate. If only the completion certificate would have been placed before the court, the court would have learnt that the building was residential. The court could have also satisfied itself if there were any violations or breaches committed after issuance of completion certificate.

(92) The plaintiff has stated that there was no unauthorised construction in the premises requiring demolition and that no provision of Dmc Act was violated. Both the averments are false.

(93) It has already been discussed and held that the plaintiff has filed a false and planted document namely the inspection report dated 29.1.62 in an attempt to persuade the court to form an opinion that the building was being subjected to commercial use before the commencement of the Master Plan 1962 and as such its present commercial user could not be objected to.

(94) In so far as the plaintiff in suit No. 106/95 is concerned, charge of material concealment and mis- statement may not be labelled but the fact remain that the two sets of plaintiffs are indulging in judicial adventurism. As already stated the building owner Smt Usha Pathak has filed an appeal of her own before the Appellate Authority and secured interim relief therein. The two plaintiffs could very well have joined in the appeal if they were also feeling aggrieved. They have not done so. Most of the documents filed by the plaintiffs in the two suits could, not have been in their knowledge, much less in their possession unless fed by the owner Smt Usha pathak. All these tell-tale circumstances lead to an irresistible inference that the three plaintiffs are acting in unison and in a planned way: one filing an appeal, other two filing two suits, seeking the same relief.

(95) In Black Dekor Ltd vs Subash Himat lal Dass 1994 (6) Scc 323, their Lordships have condemned judicial adventurism being resorted to by the litigant. A string of suits came to be filed one after the other. Late orders were obtained on applications and without notice to the opposite party. Their Lordships have expressed their serious concern and recorded their total disapproval of such indulgence into judicial adventurism.

(96) The conduct of the plaintiff in suit No. 2581/94 is enough by itself to disentitle it from relief of temporary injunction. To this is added the doubtful maintainability of the suit and indulgence in judicial adventurism. The plaintiffs in suit No. 106/95 are also disentitled to relief of temporary injunction as they are in league with the building owner and indulging in judicial adventurism.

(97) Question No.7 : Whether power to demolish is discretionary ? Whether the power to demolish as conferred by S. 343 of Dmc Act is discretionary and if so whether this court should restrain the demolition so long as the commissioner has not first consciously exercised its discretion either way ?

(98) Mr Lekhi Sr Advocate appearing for the plaintiff heavily relied on Corporation of 'Calcutta vs Mool Chand Aggarwala, , to support his submissions that power to demolish conferred by Section 343 of the Dmc Act was not meant to be arbitrarily exercised, the use of the word "may" confers a discretion on the Commissioner to demolish or not to demolish an unauthorised construction. In the said case Section 363 of the Calcutta Municipal Act conferred discretion on the Judicial Magistrate by providing that the Magistrate may pass an order for demolition of the building, after convicting a person for construction without permission. Their I Lordships agreed with the contention that a building shown to have been erected or completed without permission was not to be demolished as a matter of course; the Magistrate had a discretion in directing or not a demolition. Mr Jaitley, senior advocate appearing for M.C.D. has rightly distinguished the Corporation of Calcutta's case by submitting that it was a case of trivial unauthorised activity. He further submitted that in so far as Delhi is concerned, Building Bye Laws, 1983 are applicable, Appendix-Q Whereof categories unauthorised constructions into two:- non-compoundable and compoundable. He states that in compoundable items deviations are being compounded as a matter of course while in non-compoundable items Municipal Commissioner or any other authority for that matter, has no discretion or jurisdiction left available to condone and compound the deviations. He is right.

(99) The learned counsel for the defendant has further submitted that the purpose of enacting the municipal laws is to protect public safety and convenience against hazards and keeping in view the object behind the legislation any violation of law on being brought to the notice of the authorities, would mandate them to take legal action even coercively and exercise all such statutory powers and duties as would punish the deviation/s and secure strict compliance with the municipal laws so as to see that no individual enriches himself by thriving upon illegalities at the cost of public at large. That would secure observance with law, deter the violators and set an example to fence-sitters. He points out that there are a number of cases in the courts of law at Delhi filed by genuinely aggrieved persons or public spirited citizens or bodies seeking writs of mandamus or mandatory injunctions commanding the authorities to secure compliance with the municipal laws by proceeding against them who have acted in violation of laws, if laxity on the part of the municipal authorities was detected. In this background, the word "may" in Section 343 should be read as "shall". There appears to be substance in the submission.

(100) In Narasimha Reddi vs. Corporation of Hyderabad 1981 Andhra Wr 166 it has been held: BUILDING by laws in a Municipality belong to that category of inflexible and inexorable laws of house-building the observance of which cannot be waived normally either in prospect or retrospect of by the municipal authorities. The prohibitions contained in those building bye-laws are prohibition is against a builder and for the benefit of the neighborhood. They cannot therefore be' lifted by the municipal corporation. If Courts hold that even in such cases the municipal authorities cannot demolish is would amount to authorising the municipal authorities to sanction departure of law which have injurious effects on the health and well-being of all those that are living in the neighborhood. In other words, such a course of action would involve sanctioning inflicting of injury on third parties which could never have been contemplated by the statute."

(101) It is not necessary to further dwell upon this aspect in view of what has been stated in the preceding para 61 above.

(102) Question No. 8 : The charge of hostile discrimination, qua the suit building ? The suit building has' been singled out for demolition though the other properties in the same locality were being subjected to commercial use and were not proceeded against, was summarily contended and needs a summary disposal. Learned counsel for the defendant Dmc has pointed out that the action was initiated against all the buildings of the locality which were having unauthorised constructions/ deviations and / or unauthorised users subject to permissible compounding. However, in most of the cases the demolition was stayed by different judicial fora. The learned counsel for Mcd emphatically stated that not a single violation of law was being spared and if there be some lapse at the lower level the authorities would immediately take steps if any lapse was brought to their notice.

(103) Question No. 8: Charge of Invidious Discrimination : Qua the Suit Building What is guaranteed by the Constitution is equality before the law. It means equality in the observance of law and not equality in violation of law. ""

(104) In Khem Singh vs Union Of India, 1975 Labour Ic 1624, a Full Bench of Delhi High Court has said: "Article 14 has no application where action is taken by the authorities to remove one evil and merely because no action is taken to remove another alleged evil it cannot be said that evil which is sought to be removed is hit by the provision of Article 14. It may be that two persons may commit different offences but only one person is prosecuted by the authorities. The one who is prosecuted cannot complain of violation of Article 14 merely because the other one is not prosecuted. Article 14 has no application in such cases."

(105) A Division Bench of this Court in Master Gokul Mahana vs Uoi, , had an occasion to review a few decisions and then conclude that two or three examples of others having been shown unjustified favor cannot provide a ground for a claim of similar favor being shown to yet another person by reference to ' ' Article 14 of the Constitution.

(106) INM/S.GOLDEN Hosiery Mills vs Dda 1994 (1) ad (Del) 1001, a learned judge of this court has held that concept of equality under Article 14 does not envisage an equal treatment in illegality.

(107) To sum up, illegal/ unauthorised constructions or mis-users being proceeded against in accordance with law cannot complain of being unconstitutionally discriminated against merely because there are others left out or not proceeded against. This is the law. Factually too I am not satisfied that any charge of discrimination is at all made out.

(108) Question No 3 : Election manifesto of a political party can it give rise to promissory estoppel and legitimate expectations ? Election manifesto of a political party howsoever boldly and widely promulgated and publicised can never constitute promissory estoppel or provide foundation for legitimate expectations. It is common knowledge that political parties hold out high promises to the voters expecting to be returned to the power but it is not necessary that they must be voted in by the electorate. The political parties may commit to the voters that they would enact or repeal certain laws but they may not succeed in doing so for reasons more than one and they know well this truth while making such promises and the electorate to which such promises are made also knows it.

(109) A promise by a political party is not a promise by State. The Bjp, as alleged by the plaintiff, had promised in its election manifesto that it would permit one extra floor and additional 25% coverage in the pre-existing buildings and regularise all the illegal, colonies. Both these actions were not permitted by the laws in force on the date of the election manifesto. Thus, it was the promise to do a thing which was illegal on the date of the promise. It was also against public policy to materialise such promise. A plea of promissory estoppel cannot be founded on a promise to legislate made by a political party.

(110) A legitimate expectation to be so, has to be legitimate and not illegitimate one.

(111) Laamrit Bansapati Co. Ltd vs. State of Punjab , the State Govt in a brochure issued promised refund of sales tax as incentive and concession to industries: The industrialists acted on such promise but the State could not honour it. Their Lordships held: - "ANY Agreement for refund of sales tax due under the Act to individual being contrary to public policy was void under S. 23 of the Contract Act. The constitutional requirements of levy of tax being for the welfare of the society and not for a specific individual the agreement or promise made by the Government was in contravention of public purpose thus violative of public policy. No legal relationship could have arisen by operation of promissory estoppel as it was contrary both to the Constitution and the law." "THE law does not permit it nor equity can countenance it. The scheme of refund of sales tax was thus incapable of being enforced in a court of law."

(112) In DC&GM Ltd vs UOI it was held: "It is, however, quite fundamental that the doctrine of promissory estoppel cannot be used to compel the public bodies or the Govt to carry out the representation or promise which is contrary to law or which is outside their authority or power. Secondly, the estoppel stems from equitable doctrine. It, therefore, requires that he who seeks equity must do equity. The doctrine, therefore, cannot also be invoked if it is found to be inequitable or unjust in its enforcement."

(113) In Vasant Kumar Vora vs. The Board of Trustees of the Port of Bombay it was held : "THE doctrine of promissory estoppel is now well established one in the field of administrative law. This principle has been evolved by equity to avoid injustice. It is neither in the realm of contract nor in the realm of estoppel. Its object is to interpose equity shorn of its form to mitigate the rigour of strict law" "THE promissory estoppel cannot be used compelling the Govt or a public authority to carry out a representation or promise which is prohibited by law or which was devoid of the authority or power of the officer of the Government or the public authority to make." "THE private interest would always yield place to the public interest. Though executive necessity is not always a good defense, this doctrine can not be extended to legislative acts or to acts prohibited by the statute."

(114) The attack based on pleas of promissory estoppel and legitimate expectations simply fails as totally misconceived.

(115) Mr Lekhi the learned Senior Advocate has quoted the following passage from Snell's Equity ( 29th Edition 1990., page 660)

"INTERLOCUTORYInjunctions.

GENERALprinciples. Though the proverbial delays of Lord Eldon's chancellorship no longer exist, there is still an inevitable lapse of time between the commencement of an action and the trial. The injury being suffered by the plaintiff may be such that it would be unjust to make him wait until the trial for relief. In such cases the court may grant an injunction operating until the trial or further order, thereby maintaining the status quo and " facilitating the administration of justice at the trial; and a plaintiff who has been refused an injunction until trial may, if he wishes to appeal against the refusal, be granted an injunction pending the hearing of his appeal. In a proper case an interlocutory injunction may be granted even through it gives the plaintiff the whole of the relief for which he would ask at the trial.

STRENGTH of Plaintiff's case. The application for an interlocutory injunction must normally be heard on the basis of affidavit evidence, without cross-examination. This gives rise to a major difficulty in deciding whether or not the injunction ought to be granted, for at this stage disputed questions of fact cannot satisfactorily be resolved which in turn leads to difficulties in determining how strong a case the plaintiff must establish in order to obtain an interlocutory injunction. Over the years a rule was evolved that the plaintiff would be granted an interlocutory order only if, on the material before the court, he could show a strong prima facie case that he was en- titled to the right which he claimed and also that his allegation that this right had been infringed was reasonably capable of succeeding. In time this test was rejected on the ground that the remedy of an interlocutory injunction must be kept flexible and discretionary and that the case must be considered as a whole on the basis of fairness, justice and common sense but subject to this the plaintiff would fail if he could not establish a prima facie case."

(116) What has been stated by Snell in the above noted passage is available in several pronouncements of Supreme Court and High Courts in India as three tenets to the grant of ad interim injunctions. The principles are two well known to be restated. Suffice it to quote from Dalpat Kumar vs. Prahlad Singh, "THE phrases "prima facie case", "balance of convenience" and "irreparable loss" are not rhetoric phrases for incantation, but words of width and elasticity, to meet myriad situations presented by man's ingenuity in given facts and circumstances, but always is hedged with sound exercise of judicial discretion to meet the ends of justice.

(117) To sum up: None of the plaintiffs has prima facie case. All the grounds raised by them have been found to be unsustainable even prima facie. No serious issue of fact or law deserving a trial is raised.

(118) There is no question of irreparable injury as what are sought to be proceeded against are misusers and illegal/unauthorised construction works.

(119) The balance of convenience does not lie in favor of plaintiffs as private interest is pitted against public interest- court of law shall not protect illegalities from statutory action of public authorities.

(120) The conduct of the two plaintiffs disentitles them from indulgence. They are hands-in-glove with the owner and indulging in judicial adventurism. The plaintiff in suit No. 2581/94 has indulged in material concealments and misstatements, has also rushed to the court through no decision of sealing has yet been taken.

(121) There is absolutely no material brought on record to hold, even prima facie, the defendant DMC's action having been initiated for extraneous reasons and grounds not germane to the exercise of power conferred by the relevant provisions. None of the plaintiffs has alleged any malice against any official of the Corporation.

(122) Prima facie the civil suits are not maintainable. Alternative remedy of appeal is available to the plaintiffs.

(123) THOUGHTS- Et Seq And Et Sic De Similibus :- These two cases provide an opportunity for placing on record a few random thoughts. Courts of law are frequently faced with such suits wherein the builder or owner or person in occupation of building rushes to the court pressing for the grant of ex parte injunction submitting that unless protected by the court his valuable property would be demolished and if the injury has already been done, it would never be undone even if the plaintiff may finally succeed in the suit. Such suits being filed are not uncommon and are mentioned for hearing during the rush of already heavily listed matters and even on holidays. Situations, sometimes as they are and at times aggravated are projected- Demolition squad led by bulldozers and escorted by police force has already taken position and if not protected post haste the construction worth lac. and crores will be done to ruins in minutes and the milk of benevolence flows from the udders of justice- why not spread the protection of judicial umbrella just for the moment; after all if the structure has to be demolished what difference it would make if it was demolished a few days beyond ? The unauthorised constructions successfully breath life for sometime, the court having succumbed to meek appeals and led into passing summary -at time cryptic- protective orders.

(124) In Shiv Kumar Chadha vs M.C.D. their Lordships have laid down for considering and disposing of the applications for the grant of interim injunctions in suits of such nature as under : -

(I)The court should First direct the plaintiff to serve a copy of the application with a copy of the plaint along with relevant documents on the counsel for the Corporation or any competent authority of the Corporation and the order should be passed only after hearing the parties.

(II)If the circumstances of a case so warrant and where the court is of the opinion, that the object of granting the injunction would be defeated by delay, the Court should record reasons for its opinion as required by provision to Rule 3 of Order 39 of the Code, before passing an order for injunction. The Court must direct that such order shall operate only for a period of two weeks, during which notice along with copy of the application, plaint and relevant documents should be served on the competent authority or the counsel for the Corporation. Affidavit of service of notice should be filed as provided by proviso to Rule 3 of Order 39 aforesaid.If the Corporation has entered appearance, any such ex parte order of injunction should be extended only after hearing the counsel for the Corporation.

(III)While passing an ex parte order of injunction the Court shall direct the plaintiff to give an undertaking that he will not make any further construction upon the premises till the application for injunction is finally heard and disposed of.

(125) The guidelines laid down by their Lordships are the law of the land. Courts are bound to follow them. The courts faced with prayer for grant of temporary injunctions in such matters would do well-

(A)to see whether the plaint in the suit was accompanied by following documents :-

(I)duly sanctioned building plan;

(II)building completion certificate;

(III)existing site plan of the suit property.

(B)to see if the application for injunction contains a categoric statement on affidavit of the applicant that the existing construction and the use to which the property was being subjected was not inconsistent with the Master Plan of Delhi and any other law applicable to such locality and/or building, and that there has been no unauthorised construction or user violating the sanctioned plan/the Master Plan.

(C)if the court be inclined to grant an ex parte injunction restraining sealing demolition of the building, to put the plaintiff also on terms asking it to undertake that during the period of operation of injunction the plaintiff shall also maintain the status quo and shall not proceed with further construction, nor create third party interests. This would obviate the possibility of the plaintiff, completing its construction (if found to be illegal or unauthorised after hearing the opposite party) so also no third party would be roped into acquiring interest in the property or entering into possession thereof to its serious prejudice ( by the time the opposite party is served or makes appearance).

(D)to examine prima facie the locus standi of the plaintiff to file the suit by reference to Section 343/344 of the Dmg Act in the light of the plaint averments. The plaintiff must explain why the alternative remedy of appeal available under Section 343(2)/347B of the Act has not been availed and if availed what was the result.

(E)to appoint one independent commissioner for local' inspection, at the cost of the plaintiff and bring on record the existing state of the property on the date of injunction order.

(126) More often than not, unscrupulous builders build properties in deviation from the sanctioned plan and/or in violation of the Master Plan and building laws. They successfully avoid legal action of the municipal authorities either by connivance or by collusion or by convenience. Having completed the building they sell it away in parts to several innocent purchasers or create third party interest and comfortably walk away having pocketed the money leaving such third parties to face the frenzy of sealing and demolition. It is high time that the Govt may think of constituting an authority or agency where services of experts/officials with tested devotion and integrity may be available at one point. They must have access to records Prospective buyers and investors may approach them for advice whether the property with which they propose to deal satisfies all requirements of law and can they deal therewith without any risk. This would protect the innocent buyers and investors and avoid litigation. The vigilant eyes of such agency would also act as a cross check on unwanted builder- bureaucracy align.

(127) Public bodies like Dda, Mcd and Ndmc should also think of appointing standing counsel with a publicly known address or notifying an official of theirs on whom service of advance notice of any application seeking ad interim relief from the court may be insisted on as a condition precedent to the grant of any interim relief by judicial forum.

(128) Result Prayers for the grant of ad interim injunction are rejected in both the suits. The interim order dated 19.11.94 passed in suit No. 2581/94 stands vacated.