Manohar Lal Chatrath & Anr. vs Municipal Corporation Of Delhi
1999 Latest Caselaw 857 Del

JUDGMENT

S.K. Agarwal, J.

1. This appeal is directed against the order dated 20th November, 1998 rejecting the plaint under Order 7, Rule 11(d) of the Code of Civil Procedure, 1908 (for short, the Code) holding that the suit is barred under Section 347-E of the Delhi Municipal Corporation Act (for short 'the Act') and that equitable relief for injunction cannot be granted when an equally efficacious relief is available to the appellant.

2. Brief facts of the case are that on 4th August, 1987 appellants/plaintiffs filed a suit for permanent injunction restraining respondents/defendant from demolishing and/or sealing the whole or any portion of the property bearing No. 1142-1145 Gali No. 9 and 10, Abdul Rehman, Karol Bagh, New Delhi on the ground that officers of the respondents/defendant threatened to demolish and/or seal the portion of the building in violation of the principles of natural justice inasmuch as no pre-decisional notice was served on appellants. The respondent contested the suit pleading therein that after getting the plan sanctioned, appellants constructed the building beyond the sanctioned plan and the deviations were compounded under the Building Bye-laws on payment of requisite compounding fee. Thereafter in violation of the Building Bye-laws appellants raised further unauthorised construction of making excess coverage at the basement, ground floor, mezzanine floor and after it was noticed, a show cause notice No. 86387 dated 21st July, 1987 was issued to appellants and served on their attorney Mr. Ved Prakash on 24th July, 1987. Even after the service of the notice further unauthorised construction was carried out; and appellants made 100% coverage of the basement, ground floor, mezzanine floor and 75% at the first floor the basement floor. Consequently a demolition order was issued on 3rd August, 1987 and served upon the owner/builder on the same day by way of pasting at the site in the presence of Notary Public. It was further pleaded that no appeal against the said order under Section 343 of the Act was filed and that the suit is not maintainable as alternative remedy for appeal is provided under the law and no appeal has been filed.

3. On the basis of the pleadings of the parties, following issues were framed :-

"1. Whether the suit is maintainable and whether the plaint is liable to be rejected as the plaintiffs are provided with an adequate and equally efficacious alternative remedy under the provisions of Section 343 and 347 of the DMC Act? OPP

2. Whether the plaintiffs have been served notice under the provisions of the DMC Act in accordance with law? OPP

3. Whether the plaintiffs have made any unauthorised construction in the suit property after issuance of the completion certificate? If so, to what effect?

4. Relief."

4. Issue No. 1 was taken as a preliminary issue. After hearing arguments, the learned trial court rejected the plaint under Order 7, Rule 11(d) of the Code observing that the appellants may pursue the remedy before the Appellate Tribunal, under the Act, if so advised.

5. We have heard Mr. A.S. Chandhok, learned counsel for the appellants and Mr. Raman Duggal, learned counsel for the respondent and have been taken through the record.

6. Mr. A.S. Chandhok, learned counsel for the appellants argued that the plaint could not be rejected under Order 7, Rule 11(d) of the Code without recording any finding on issues 2 and 3 to the effect as to whether appellants were served with any notice under the provisions of the Act and whether there was any unauthorised construction after issuance of the completion certificate. He argued that the statutory authorities acted contrary to the provisions of the statute and in violation of the basic procedural requirements. He referred to paragraph 16 of the plaint which reads as under :-

"16. Assuming though not admitting that there has been any new and/or unauthorised construction made, it is submitted that without issuing any show cause notice and without affording the plaintiffs an opportunity of being heard, no order of demolition and or sealing of the premises/property or any part thereof, could be passed by the defendant Corporation. The building cannot be demolished and/or sealed and/or essential amenities withheld at the whim and fancy of the defendant. To the knowledge of the plaintiffs, there has been no order passed by any competent authority either directing demolition or sealing of the property in question. Demolition has to be carried out strictly under the authority of law. It seems that the employees of the defendant Corporation are trying to achieve their ulterior motive by threatening demolition/sealing of the property."

7. He relied on a decision of the Supreme Court in Shiv Kumar Chadha Vs. Municipal Corporation of Delhi, wherein after considering sub-section(4) and sub-section (5) of section 343 and Section 347-E of the Act laid down the following principles :-

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 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 facie 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."

8. Mr. Raman Duggal, learned counsel for the respondent, on the other hand, argued that appellants got the plan sanctioned for residential building and after obtaining the completion certificate they carried out further unauthorised construction in the building converting the residential premises into commercial premises and by increasing the number of rooms and that a show cause notice was duly served and that the suit was barred under Section 347E of the Act. However, the respondent had neither placed on record the show cause notice dated 21st July, 1987 nor the demolition order dated 3rd August, 1987 nor any proof of service of notice on appellants.

9. In order to appreciate the rival contention of the learned counsel for the parties, Order 7, Rule 11 of the Code is produced hereinbelow:-

"11. Rejection of Plaint - The Plaint shall be rejected in the following cases :-

(a) Where it does not disclose a cause of action;

(b) where the relief claimed is undrevalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so.

(c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the court, fails to do so;

(d) where the suit appears from the statement in the plaint to be barred by any law."

10. Perusal of Order 7 Rule 11(d) of the Code shows that the plaint can be rejected only if it appears from the statement in the plaint. To be barred by any law. Even if the expression the statement in the plaint is given a liberal meaning, documents filed with the plaint may be looked into, but nothing more.

11. In this case averments made in the plaint prima facie show appellants pleaded that no new or unauthorised construction was made by them; that no show cause notice was served on them after grant of completion certificate and no opportunity of being heard was provided to them prior to the passing of the demolition and/or sealing orders of the premises by the respondent. On these pleadings, as noticed above, two issues were also framed. Therefore, the ingredients of Order 7, Rule 11(d) of the Code are not satisfied and thus the plaint could not be rejected.

12. Before we part with the judgment it may be observed that after 10th August, 1987, when appellants were granted an ad interim injunction, the suit came up for hearing on number of dates; appellants took adjournments for filing replication and the matter was delayed for about four years. The respondents also did not by behind. They were proceeded ex parte on 6.3.1992 and the same was set aside only on 27.4.1998 and the issues were framed. Thereafter, on 20.11.1998 impugned order rejecting the plaint was passed. Under the circumstances the matter needs to be expedited.

13. With the above observations the appeal is allowed. The impugned order is set aside. The suit will now proceed in accordance with law as expeditiously as possible. Nor order as to costs.