Surender Kumar Singhal vs Municipal Corporation Of Delhi
2002 Latest Caselaw 2090 Del

JUDGMENT

K.S. Gupta, J.

1. This order will govern the disposal of I.A.7526/02 filed under Order 39, Rules 1 & 2 read with Section 151 CPC by the plaintiff.

2. Suit was filed, interalia, alleging that plaintiff is the owner of property No. BM-30 (West), Shalimar Bagh, Delhi and building plan for carrying additions and alterations in property was sanctioned by the defendant on 20th July 1999. On 23rd July 1998 a notification was issued by the Ministry of Urban Affairs & Employment were by the building bye-laws 1983 were amended in the light of recommendations made by the Committee set up under the Chairmanship of Sh. V.K. Malhotra. Modifications made in said bye-laws have been set out in Para 3 of the plaint. It is alleged that the plaintiff started making additions and alterations in property on the basis of relaxed building bye-laws. Defendant issued show cause notice dated 1st March 2002 alleging that plaintiff had made deviations beyond the sanctioned building plans by way of excess coverage at basement, ground floor, first floor and second floor. Plaintiff sent a reply dated 6th March 2002 to the show cause notice to AE (Bldg), Rohini Zone, MCD. Without considering the reply the defendant issued demolition notice dated 11th March 2002 under Section 343 of Delhi Municipal Corporation Act (for short the 'Act') requiring the plaintiff to demolish excess construction/deviations mentioned in said show cause notice within 6 days. Plaintiff made representation on 22nd April 2002 against the notice dated 11th March 2002 stating that basement had been closed and alleged excess coverage was being demolished to bring it to the level of sanctioned building plans and defendant was asked to drop proceedings. It is further alleged that by the order dated 18th June 2002 under Section 345-A of the Act the defendant illegally ordered the sealing of property and entire third floor, back portion (two bed rooms) of second floor and first floor were sealed the same day without giving opportunity to the plaintiff to make representation against that order. Defendant issued yet another notice dated 12th July 2002 under Section 435 of the Act. After sealing of property the plaintiff sent yet another representation to the Additional Commissioner (HQ), MCD asking for two months time to rectify the deviations/unauthorised construction. Defendant without considering the replies/representations of the plaintiff demolished part of portion on third floor on 18th June 2002, 15th and 16th July 2002. Defendant has started demolition work of second floor from 22nd July 2002 without regularising the construction. It was prayed that by decree of permanent injunction the defendant be restrained from taking any action of demolition and/or sealing of any portion of suit property; by decree of declaration it be declared that the order dated 18th June 2002 passed by defendant is null and void and construction in the property be ordered to be regularised.

3. In said I.A. the plaintiff has claimed reliefs

(a) and (b) as made in the plaint by way of ad interim injunction and de-sealing of property.

4. Defendant contested the suit by filing written statement. It is admitted that plaintiff had applied for sanction of building plan for additions/alternations on the first and second floors of property which was approved vide File No. 450/B/RZ/99 dated 20th July 1999. It is alleged that upon receipt of a complaint from Vigilance Department the J.E.(Bldg.), Rohini Zone inspected the suit property and on finding unauthorised construction of basement, addition/excess coverage on ground, first and second floors and unauthorised construction of third floor, a case was booked vide U/C file No. 30/B/UC/RZ/02 dated 1st March, 2002. Show cause notice dated 1st March 2002 was accordingly served on the plaintiff. On not receiving reply to show cause notice within the stipulated period, demolition notice dated 11th March, 2002 was issued to the plaintiff. Thereafter, demolition order was made on 21st March 2002 by the competent authority. It is further alleged that operation of the Notification dated 23rd July 1998 has been stayed by the Supreme Court by the order dated 11th December 2001 in WP(C) No. 725/94. Unauthorised construction on the third floor of suit property cannot be considered for regularisation in view of O.O.No. D/577/Addl.Commr.(E)/2002 dated 31st January 2002. It is asserted that sealing order was made by the Deputy Commissioner, Rohini Zone after carefully considered the matter. It is stated that although demolition order was passed in March 2002 the actual action of demolition was started only in June 2002. Sealing of unauthorised portion of property was done so that there was no further misuse.

5. In the short reply filed to the I.A. under disposal the defendant has reiterated the stand as taken in the written statement.

6. Submission advanced by Ms. Anusuya Salwan for plaintiff was mainly two-fold-(i) plaintiff's reply dated 6th March 2002 was not considered while issuing demolition notice dated 11th March 2002 and (ii) relaxed bye-laws were in force at the time the construction was carried out and plaintiff was under a bonafide impression that alleged excess coverage and unauthorised construction beyond sanctioned plan will be permitted to be compounded on payment of fee. It was, however, pointed out by Ms. Mini Pushkarna for defendant that plaintiff had deliberately suppressed about the filing of appeal against the order of sealing etc before the Appellate Tribunal, MCD on 15th July 2002 and non-grant of ex parte stay against demolition by the said authority. It was further pointed out that during the pendency of appeal before Appellate Tribunal the plaintiff filed this suit, obtained ex-parte stay against demolition on 26th August 2002 and got the appeal dismissed in default on 30th August 2002. Copies of grounds of appeal, stay application and notice dated 31st July 2002 filed by the defendant are placed on pages 34 to 44 on Part III file. As is manifest from sub paras (c) and (d) of Para 8 of the grounds of appeal, the plaintiff had impugned therein the aforesaid demolition notice as also order of sealing of property made by the defendant. Further, in stay application the relief claimed was to suspend the order of demolition passed in respect of a part of suit property till the disposal of appeal. Said notice dated 31st July 2002 would show that in appeal being No. 222/ATMCD/2002 notice was issued to defendant for 24th September 2002. To be only noted that against the orders of demolition and sealing of property, appeal lie before the Appellate Tribunal under the Act. Obviously, having remained unsuccessful in obtaining stay against demolition in said appeal, the plaintiff filed the present suit on 26 August 2002 before the date for which the appeal was fixed for hearing and obtained ex-parte stay against demolition on the application under disposal in terms of the order dated 26 August 2002 without disclosing the factum of filing of said appeal, stay application and non-grant of stay against demolition by the Appellate Tribunal. Relief of injunction being discretionary in nature cannot be granted to a person who comes to the court with unclean hands. Thus, without going into the merits of aforementioned submission advanced on behalf of plaintiff the ad interim restraint order dated 26th August 2002 which continues to operate till date, deserves to be vacated forthwith.

7 Accordingly, the application is dismissed and order dated 26 August 2002 is hereby vacated.