Metropolis Restaurant vs Municipal Corporation Of Delhi ...
2002 Latest Caselaw 297 Del

JUDGMENT

J.D. Kapoor, J. (Oral)

1. Admittedly defendant No. 3 is a tenant of the plaintiff firm in respect of the property No.14 and 14/1 plot No. 15, Block 80A Krishna Market Pahar Ganj, New Delhi. The suit property is situated at 1634-35 Main Bazar Pahar Ganj, New Delhi of which the plaintiff is owner. Some time in 1991, the plaintiff firm and its partners had filed eviction petition against defendant No. 3 on the ground of bona fide requirement under Section 14(I)(e) read with Section 25(b) of the Delhi Rent Control Act.

2. As a counter blast, defendant No. 3 i.e. the tenant made a complaint to the Municipal Corporation of Delhi against the plaintiff-firm that it has raised huge unauthorised constructions in the suit property. On persistent representation of defendant No. 3 the DDA prosecuted sh. Nand Lal Sharma one of the partners of the plaintiff under Section 29 of the Delhi Development Act. However, the said criminal proceeding ended in acquittal on the ground that the property in question was being put to commercial use much before the master plan came into existence.

3. It is averred that on the frivolous representation of defendant No. 3, the Lt. Governor of Delhi i.e. defendant No. 2 has passed some order directing defendant No. 1 MCD to take action against the suit property. However this fact came to the notice of the plaintiff when on 11th June, 1993 one Mr. Kardam, Junior Engineer of pahar Gunj Zone of MCD visited the site for inspection and told that there were orders from the Lt.Governor for demolishing the basement.

4. According to the plaintiff the alleged basement is not the basement as it is the mezzanine floor that exists between the ground and the first floor. The height of the mezzanine floor form the original plinth level is 7 feet whereas the upper floor of the mezzanine floor has a height of 7'-9". The lower height of the plinth level of the property according to the plaintiff is the result of the repair and raising of the level of the road from time to time during the past 60 years. The plinth level of the suit property is lower than the road level because of the filling of malba to stop entry of rain water into the building, though the height of the first floor and the ceiling of the ground floor was about 14'-9".

5. The instant suit has been filed on the premise that no show cause notice for sealing or demolishing the basement as contemplated under Sections 343 and 344(1) of the Delhi Municipal Corporation Act, 1957 has been served upon the plaintiff though there exists a threat of demolition of the said basement.

6. According to MCD the plaintiff was booked for unauthorised construction on 25th June, 1993 and thereafter a fresh show cause notice No. 124005 dated 30-7-1993 for the unauthorised construction of the basement and stair case was issued and served upon the plaintiff Shri Nand Lal Sharma, K.L. Sharma and Davinder Kumar but no reply was received form them. Teh construction in question, according to M.C.D., is against the building bye laws and is not compoundable. The preliminary objection raised by M.C.D., is about the maintainability of the suit as according to it the same is barred by the provision of Section 347-E of the Act. Right form March, 1996 when unauthorised construction was noticed in the suit property and form time to time when unauthorised construction was booked demolition was ordered by the M.C.D.

7. Section 347-E of the Act provides an appeal before the Appellate Tribunal against the impugned action of defendant No. 1 and specifically debars the jurisdiction of the civil court. It reads as under:

"347-E. Bar of jurisdiction of Courts-(1) After the commencement of Section 7 of the Delhi Municipal Corporation (Amendment) Act, 1984 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 under those sections.

(2) Notwithstanding anything contained in Sub-section (1) every suit, application or other proceeding pending in any court immediately before the commencement of Section 7 of the Delhi Municipal Corporation (Amendment) Act 1984 in respect of any order or notice appealable under Section 343 or Section 347B shall continue to be dealt with and disposed of by that court as if the said section had not been brought into force."

8. The instant suit has been filed in view of the Judgment of the Supreme Court in Shiv Kumar Chadha v. MCD and Ors. 50 (1993) DLT 492(SC) whereby the remedy by way of civil suit is available in case the authority has not served with the notice either under Section 343 or 344 or 345-A of the MCD Act by way of either sealing the premises or demolishing the same.

9. Counsel for the plaintiff has placed reliance on the report of the Local Commissioner appointed during the proceedings to ascertain whether the construction sought to be demolished is the basement or not. Though the Architect has found that the area in question measuring 19'.3 x 21'.3" is having height of 7'.0" to 7.6" but still has given the opinion that it is not the basement though this structure is situated on the ground floor in the mezzanine form. It is for the enforcement Authority to ascertain whether particular construction comes within the definition of basement or not.

10. As is apparent from the provisions of Section 347E, any action of the MCD either for sealing the unauthorised construction or demolishing the same it is challengeable before the Appellate Tribunal of MCD. The defense that the property in question is neither basement nor unauthorised construction can be raised before the said Tribunal. However the details given by defendant No. 1 in paragraph 10 and other paras referred to above show that the requisite notices were not only sent to the plaintiff under Section 29 of the Act itself show the service of show cause notices against unauthorised construction. The averments of defendant No. 1 in this regard need to be reproduced and are as under :

"For the first time, unauthorised construction of one room by erection of partition walls at first floor was booked vide file No. 89/B/UC/SPZ/86 dated 31.3.86, secondly unauthorised construction of five rooms, verandah and stair case at second floor was booked vide file No. 326/B?/UC/SPZ/87 dated 22.11.87 thirdly unauthorised construction of tin shed at IIIrd floor was booked vide file No. 18/B/UC/SPZ/90 dt. 22.1.90 and fourthly unauthorised construction of basement was booked vide file No. 230/B/UC/SPZ/91 dated 25.6.91. A fresh show cause notice No. 124005 dated 30.78.93 for the unauthorised construction of basement and stair case has also been issued and served on the owners/builders. Shri Nand Lal Sharma, Jitender Nath Sharma and Sh. Ravinder Kumar as per law and demolition notice No. 116658 dated 17.8.92 was also issued and served upon the owner.

11. The service of these notices have bene validly proved by DW 1 Ashok Kumar Assistant Engineer (Building) of the MCD. It is difficult to ram down the throat that the Junior Engineer will go to the spot for demolishing the property without serving the requisite notice. Even during the suit proceedings, the plaintiff had sufficient information as to the service of notices referred to in paragraph 10 of the written statement. Merely because some of the notices have been quashed does not mean that these were not served. Nor does it mean that the plaintiff should have rushed to the Civil Court. Remedy was before the Appellate Tribunal.

12. The plaintiff has tried to take misplaced benefit of the ratio of Shiv Kumar's case as the Supreme Court has taken the view that it is in some special cases where jurisdictional error on the part of the Corporation is established that a civil suit is maintainable. The observations made by the Supreme Court to the effect that the court should not entertain the suit in connecting with the proceedings initiated for demolition are noteworthy and need to be reproduced. These are as under :

"In some special cases where "jurisdictional error" on the part of the Corporation is established, a suit shall be maintainable. According to us.

(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. Teh 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 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."

13 In view of the aforesaid facts the suit itself is barred by the provisions of Section 347(E) of the Act and is hereby dismissed. However, the plaintiff is granted one month time to avail the remedy before the Appellate Tribunal and during this period the suit property shall not be demolished.

14. With the above observation, suit stands disposed of.