Sh. Prabhu Dayal vs M.C.D. And Anr.
2001 Latest Caselaw 425 Del

ORDER

A.K.Sikri, J.

1. Plaintiff is the co-owner of property bearing No. RZ-22/295/2 situated in the extended abadi of village Bijwasan, New Delhi (hereinafter referred to as the `suit property'). Other co-owners are his family members consisting of his wife Smt.Phoolo Devi and son Gajraj Singh. Threatened with demolition action by the defendants MCD and DDA, the plaintiff has filed this suit for permanent injunction labelling andy such threatened action as illegal and contrary to provisions of law. He therefore prays that decree of permanent/perpetual injunction in his favor and against the defendants be passed restraining the defendants from interfering with the peaceful use, occupation or enjoyment of the suit property or from in any manner demolishing/sealing any portion of the suit property. In the plaint it is averred that plaintiff and his family members have been residing in the suit property for decades. They are in actual and peaceful occupation and enjoyment of that property which is fully constructed which consists of a basement and ground floor. On the main floor, four shops exist two of which have been let out to tenants. In order to show that it is an old construction, the plaintiff has further mentioned in the plaint that domestic connection in the name of the plaintiff is existing since 22nd May, 1982. Likewise water connection is in existence since 20th September, 1983. Reliance is also placed on an Agreement dated 20th September, 1996 entered into between the son of the plaintiff and Ansal Properties and Industries Ltd. as per which Ansal Properties were given license to fix their hoarding on the roof of the suit property and also a board in front of the suit property. This shows, according to the plaintiff, that construction was in existence even at that time. The plaintiff was compelled to file the present suit when a group of officers of MCD and DDA visited them on 11th December, 1998 and threatened the plaintiff with demolition and/or sealing of the suit property. It is alleged that plaintiff, his family members and neighbours resisted the threat issued by the officers of the MCD & DDA and returned back with further threat to come back with larger force to execute their threats. According to the plaintiff no show cause notice whatsoever has ever been issued either by DDA or MCD till date. No opportunity has been given to the plaintiff to show cause against the threatened demolition/sealing, and therefore, the threatened action is totally illegal and contrary to the provisions of the Delhi Municipal Corporation Act. It is also stated that urbanisation of village Bijwasan has taken place as recently as 1994 and consequently the suit property and the structure existing thereon as on that date are completely constructed and stand regularised. Since suit property is in existence much prior to 1994, the threatened action of the defendants is without and authority or law. In view of grave urgency, it is also pleaded that no notice is being served either under Section 53B of the Delhi Development Act or under Section 478 of the MCD Act inasmuch as very purpose of filing the suit would be defeated if the plaintiff is required to serve such as a statutory notice and wait for the expiry of the statutory period.

2. Along with the suit, the plaintiff also filed IA No. 11169/98 under the provisions of Order XXXIX Rules 1 and 2 readwith Section 151 of Code of Civil Procedure seeking ex-parte interim injunction. This suit and IA came up for preliminary hearing on 18th December, 1998 and while issuing summons in the suit in IA No.11669/98 this court passed an order to the effect that defendants are restrained from sealing or demolishing the suit property. This order was passed after noticing the contention of the plaintiff that the suit property in question was constructed almost twenty years back. It was assessed to municipal taxes for the last number of years. There was electricity and water connection and that without any notice to show cause provided under Section 343 of the Delhi Municipal Corporation Act, the defendants were threatening to demolish and seal the suit property.

3. Defendant No.1/MCD appeared and filed its written statement. Apart from other objections, one of the preliminary objections taken is that the suit of the plaintiff was not maintainable on the ground of suppression and concealment of material facts inasmuch as the plaintiff has knowingly and deliberately kept hidden the fact that the unauthorised construction of basement and ground floor has been carried out at the suit premises without any sanction or permission from the defendant. The suit property comes within the jurisdiction of the defendant for the purpose of stoppage and prevention of the unauthorised construction in violation of the Building bye-laws. It is submitted that a Civil writ petition No.2787/94 titled `Palm Vihar Residents Welfare Association Vs. Municipal Corporation' is pending adjudication before this court and the present premises is also involved therein alleging the quantum of the booked unauthorised construction carried out without any senction and an affidavit in this regard has also been filed. The aforesaid unauthorised construction in the shape of unauthorised construction of basement and ground floor has been booked u/s 343/344 of the D.M.C.Act, 1957 vide unauthorised construction File No.46/B/UC/NC/98 dated 3rd July, 1998. A show cause No.387 dated 3rd July, 1998 had been issued and served upon the plaintiff, as per law but no reply to the show cause notice was received within stipulated time. Thereafter, the matter was further processed and the demolition notice No.2255 dated 14th July, 1998 was also issued and served upon the plaintiff, as per law, to demolish the booked unauthorised construction but the plaintiff failed to comply with the instructions as contained therein. Finally, the demolition orders dated 23rd July, 1998, as per policy were also passed. The unauthorised construction carried out at the suit premises is now liable for demolition. In terms of Section 347-E of the D.M.C.Act, the present suit is barred. Had the plaintiff been really aggrieved with the order of demolition passed u/s 343/344 of the DMC Act, 1957 qua the suit premises, the prompt and efficacious remedy available to the plaintiff is/was to approach the appellate tribunal, Municipal Corporation of Delhi which is the proper forum as per the D.M.C.Act.

4. Thus according to the defendant No.1. the plaintiff constructed the basement unauthorisedly and illegally in the year 1998 only. A proper show cause notice No.387 dated 3rd July, 1998 was issued and served upon the plaintiff. Since no reply was given ultimately demolition notice No.2255 dated 14th July,1998 was issued and finally demolition order dated 23rd July, 1998 was passed. If the plaintiff had any grievance he could file appeal under section 347-E of the Act and he has efficacious and statutory remedy and present suit was barred under the provisions of the Act as well as under section 41 of the Specific Relief Act. The plaintiff in the replication denied issuing of any such show cause notice and reiterated the averments made in the plaint submitting that these show cause notices and demolition orders are fabricated documents which were never served on the plaintiff. Therefore the present suit was the only remedy as in the absence of any show notices and demolition order, the plaintiff could not invoke the remedy of appeal.

5. In order to complete the events that took place during the pending of this suit, it may be mentioned that when this cause was listed on 22nd March, 1999 counsel for defendant No.1 had stated that plaintiff was continuing to carry out construction in the suit premises which was denied by counsel for the plaintiff. Accordingly, Ms.Puja Jain, Advocate was appointed as the Local Commissioner to visit the suit premises on the same date at 4.00 P.M. to ascertain as to whether any construction is being carried out in the recent past. The Local Commissioner visited the suit premises and submitted her report. This matter was thereafter heard on 9th September, 1999 and the court passed the order directing the plaintiff to produce the details of house tax record pertaining to which the assessment order had been filed. It was also directed that plaintiff would file reply to the show cause notice annexed with the written statement within four weeks. However, reply was not filed and by order dated 6th December, 1999 another four weeks' time was granted. Thereafter by order dated 27th March, 2000 last opportunity of two weeks was granted to file the reply to show cause notice. On 31st October, 2000 statement was made by learned counsel for the plaintiff that reply to show cause notice was filed on 24th October, 2000 vide diary No.29997. However, as the reply had not come on record, the counsel was directed to check up with registry and have the same placed on record. Still no steps are taken to have the reply on record. At the time of arguments, a copy of reply was handed over to the court. By order dated 31st October,2000 the plaintiff was also directed to give the details of house tax records in terms of order dated 9th September, 1999 which yet to be filed. Four weeks time was granted to do the needful. No such details are placed on record.

6. In view of the preliminary objection of defendant No.1 about the maintainability of the suit,both the parties argued this aspect at length and arguments were also advanced on IA No. 11669/98.

7. In support of his contention that in the absence of any show cause notice or demolition notice,suit was maintainable, learned counsel for the plaintiff relied upon the two judgments of this court, the particulars of which are as under:

1. Kapur Chand Vs. Municipal Corporation reported 1972 RLR (N) 205. In this case it was held that a dispute as to whether a shed was only repaired or was a new construction needed trial and the shed should be preserved till decision on merits in a suit for permanent injunction should be granted for maintaining status-quo. That was a case where petitioner had applied to the Municipal Corporation under Section 334 of the Act for permission to replace the roof of his shed to repair two walls. This permission was given to him. He pleaded that he had effected said repairs by the end of 1964. On the other hand, the Municipal corporation issued notice of demolition on 14th July, 1966 under Section 343 (1) of the Act alleging that its staff noticed unauthorised construction being done on three walls on 9th July, 1966. The court held that in the notice of demolition the Corporation did not mention in words the unauthorised construction and it gave a sketch of the same which corresponded exactly with sketch of the order sanctioning repairs and thus petitioner had a prima facie case which needed to go into by evidence of the parties. In this case, the petitioner had earlier filed an appeal which was withdrawn by him and then suit was filed in which it was explained that appeal was withdrawn on a false assurance given by the Corporation that the alleged unauthorised construction would be regularised on his application and would not be demolished. He also alleged that his consent for the withdrawal of the appeal was obtained by mis-representation or concealment of real intention or by fraud. This court while allowing the revision petition, granted injunction by holding that the plea of the petitioner cannot be assumed to be untrue at this stage and the truth of it has to be considered and decided in the light of evidence which the petitioner might adduce in the course of the suit. This case, therefore, has no application to the facts and circumstances of the present case.

2. In Krishan Gopal Vs. Municipal Corporation of Delhi reported as 2nd (1972) I Delhi 272, this court examined the question whether civil court had the jurisdiction in view of the provision for appeal and further in view of section 343(4) of the Act specifically providing that no court shall entertain any suit, application or other proceedings for injunction or other relief against the commissioner to restrain from him taking any action or making any order in pursuance of the Act. Relying upon certain decisions of the Supreme Court including in the case of Dhulabhai Vs. state of M.P. & Anr, the court held that civil court has the jurisdiction where there is an express or implied bar to entertain the suit if the authority concerned has acted beyond jurisdiction or contrary to the statute. On the facts of that case it was found that the authority concerned had acted without serving a notice on the appellant and had also attempted to demolish the alleged construction without serving the order of demolition on the appellant and therefore the appellant was debarred from filing an appeal to the District Judge under Section 343(3) of the Act. The suit was thus held to be maintainable. It was a case, as the facts would reveal, where admittedly no such show cause notice or demolition order was served upon the plaintiff/appellant and notice was served upon one Parmeshwari Dass, father of the appellant. On these facts the court came to the conclusion that it could not be said that the notice was served on the person at whose was instance the construction was being made; he was not in a position to identify the person at whose instance the work being carried out and therefore notice was not properly served in accordance with the provisions of Section 343 of the Act. Thus it was not case where notice was not served but on facts it was found that notice was not served on a proper person, and therefore, there was no service of valid notice in the eyes of law and in fact there was no demolition order passed at all. This case also has no application to the facts and circumstance of the present case.

8. In the case of Manohar Lal Chatrath and Anr. Vs. Municipal Corporation of Delhi , precisely this very question of maintainability of the suit in view of their being remedy of appeal under sections 343 and 347 of the Act came for decision. That was also a case where plaintiff alleged that no show cause notice or demolition notice was served and the action was violative of principle of natural justice as no jurisdictional hearing was given and defendant resited the suit by contending that on finding illegal construction requisite show cause notice was served on the plaintiff but as despite service of this notice plaintiffs is not stop the construction and demolition order dated 3rd August, 1987 was served on the plaintiffs. In para 4 of the judgment, the court observed as under:

"At the outset I must make it clear that neither the show cause notice dated 21st July, 1987 has been produced before the court. Learned counsel for the plaintiffs contended that since no pre decisional notice was served on the plaintiffs before issuing the alleged demolition order, the threatened action of demolition of the building in question is violative of the principles of natural Justice and so the present suit is maintainable. Strong reliance was placed on the decision of the Supreme Court in Shiv Kumar Chadha Vs. MCD ."

Thus that was a case where show cause notice or demolition were not produced before the court. The court thereafter noticed the provisions of the Act viz. Section 331 defining the expression "to erect a building". Section 332 providing for previous sanction of the Commissioner for erection or to erect any building or to execute any work specified in Section 343. Therefter the court observed that Section 343(1) empowering the Commissioner to issue order demolition of the offending erection work of any building covered by the Act and Section 344 empowering the Commissioner to stop the construction of the building where the erection of such building or execution of any work has been commenced or is being carried on either without sanction or contrary to sanction so granted. An appeal has been provided under Sub-section (2) of Section 343 of the Act against the order of demolition. A further appeal has been provided under section 347D to the Administrator against the order or the Appellate Tribunal. Section 347-E bars jurisdiction of courts to entertain any suit or other proceedings in respect of any order or notice appealable under Section 343 or Section 347-B. The court then cited the Supreme Court judgment in the case of Shiv kumar Chadha(supra) and noted that it laid down the following principles:

"(i) The courts 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 person aggrieved to pursue a remedy before the Appellate Tribunal and then before the Administrator in accordance with the provisions of the said Act."

(ii) 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."

The court then observed that in the case in hand according to the plaintiff no demolition order was passed whereas MCD maintained serving a show cause notice and passing of demolition order. On the basis of these facts, it was concluded that the suit for injunction was barred under Section 34-E of the Act as well as under Section 41(H) of the Specific Relief Act. The relevant paras, being paras 8 and 9 deal with this aspect read as under:

"8. Thus according to the plaintiff, no demolition order was passed for demolition of the alleged unauthorised construction in the building. It was pleaded in the written statement that the demolition order dated 31.8.1987 was served on the plaintiffs. Even after filing of the written statement, the plaintiffs did not care to challenge the said order by incorporating suitable amendments in the plaint. That being so, the present suit does not fall with the category of "the suit questioning the validity of an order passed under Section 343 of the Act. It is well known in the city of Delhi that unauthorised constructions are regularly put up: when caught out, a suit or writ is filed raising a plea that no notice was issued or served before passing the demolition order and stay orders are obtained with an intention to while away the time. In the case of Shiv Kumar Chadha(supra), it was observed by their Lordships that "we are conscious of the fact that persons who make unauthorised constructions by contravening and violating the building bye-laws for regulations often run to Courts with pleas mentioned above, specially that no notice was issued or served on them, before the Corporation has ordered demolition of the construction". I, therefore, find and hold that the present suit is barred under Section 347-E of the Act."

"9. That apart, it is undisputed that an adequate alternative remedy by way of appeal under the provisions of the Act was available to the plaintiffs. The plaintiffs have filed the present suit for a permanent injunction restraining the defendants from demolishing and/or sealing the offending portion of the building. Section 41(H) of the Specific Relief Act lays down that an injunction, which is a discretionary equitable relief, cannot be granted when an equally efficacious relief is obtainable in any other usual mode or proceeding except in cases of breach of trust. Thus, the present suit for injunction is also barred under Section 41(H) of the Specific Relief Act."

This case squarely applies to the facts of the present case. To the same effect is the judgment of this Court in the case of ANZ Grindlays Bank Plc Vs. Commissioner, MCD reportedas 1995 II AD(Delhi) 573. The contention of both the parties in respect of notice and demolition order are identical. In fact in the aforesaid case show cause notice or demolition order where not even produced. On the contrary in the present case the MCD has produced on record show cause notice as well as demolition order.

9. The learned counsel for the plaintiff strenuously argued that these documents are fabricated by defendant/MCD and defendant had not been able to show as to how these orders were served on the plaintiff. On the other hand, learned counsel for the defendant argued that the service was effected and it could be effected even by affixation as well which was the proper mode of service prescribed under the Act itself and relied upon the judgment in the case of K.Krishnaswmy Vs. M.C.D.reported as 1996 IV AD(Delhi) 198. The original file was also produced for perusal. However any comments by the court on the service/non-service of these notices can prejudice either party and it is appropriate that this issue is decided by the appellate Tribunal itself. I am of the opinion that keeping in view the ratio laid down by the Supreme court in the case of Shiv Kumar Chadha(supra) and this Court in the case of Manohar Lal Chatrath(supra) the proper remedy for the plaintiff is to file the appeal once the show cause notice and demolition orders have surfaced.In such an appeal it would also be open to the plaintiff not only to show/prove that no such notices/demolition orders were served, it will also be open for him to contend that there was no unauthorised construction. The appellate forum being an alternative and efficacious remedy which puts a specific bar on the civil court to entertain suit of this nature, it would not be appropriate to go in these questions and the appropriate course would be to relegate the parties to the forum of Appellate Tribunal. It is possible that the show cause notice or the demolition order projected by the MCD are fabricated document or that these were not served upon the plaintiff. It is also possible that these are genuine documents and were duly served upon the plaintiff who is only feigning non-service thereof. It is appropriate to leave all these matters for determination by the Appellate Authority. As observed by the Supreme Court in the case of Shive Kumar Chanda(Supra) "persons who make unauthorised construction often run to courts with such plea specially that no notice was issued or served on them before the Corporation had ordered demolition of the construction". Therefore, if the suit is to be held to be maintainable merely because plaintiff is alleging non-service, in all cases the plaintiff would pretend so and file the suit scuttling the provision of appeal altogether. Such an attempt should not be allowed in view of their being specific provision barring the jurisdiction of the civil court more particularly when the question of service of non-service of show cause notice and demolition order can be duly examined by the Appellate Tribunal.

10. This suit is accordingly dismissed as not maintainable. IA No. 11669/98 also consequently stands dismissed.

11. However, keeping in view the peculiar facts of this case and particularly as this court had given interim protection to the plaintiff by order dated 18th December, 1998 which was extended from time to time and is operating till date, it is directed that the said injunction order will remain in force for a period of four weeks from today. During this period, the plaintiff would be entitled to approach the Appellate Authority by filing the appeal and apply for stay. However, it is made clear that the Appellate Authority shall be free to pass any order after examining the controversy on merits, without being influenced by the interim order passed in this case. Since the plaintiff would be filing the appeal now at this stage, which would naturally be time barred, the plaintiff shall be at liberty to apply for condensation of delay in filing the appeal because of the pendency of this suit and it is hoped and expected that the Appellate Authority shall take the factum of pending of this suit into consideration while dealing with such an application for condensation of delay, if preferred by the plaintiff. With these observations suit and IA are accordingly dismissed.

12. There shall be no order as to costs.