Mr. Suresh Goel vs M.C.D. And Ors.
2006 Latest Caselaw 1538 Del

JUDGMENT

Reva Khetrapal, J.

1. The short question which arises for consideration is whether the present suit filed by the plaintiff is barred in terms of Section 347-E of the Delhi Municipal Corporation Act, 1957, a preliminary issue having been framed on 20th February, 2006 which reads as under:

Whether the suit of the plaintiff is maintainable OPP (Issue No. 2)

2. Shorn of trappings, the case of the plaintiff in a nutshell is that the suit property consisting of agricultural farm houses bearing Khasra Nos.136, 145,146,147,152 and 154, Sultanpur, Mehrauli, New Delhi was raised as per sanctioned plan dated 16.12.1980. A completion certificate was issued by the defendants in respect thereof on 16.11.1984. Vide notification bearing no. S.O. 623(E) and No. K-12016/5/79-DDIA/VA/IB dated 23rd July, 1998, however, the definition of agricultural land to be considered as farm house was altered by Government of India by amending the building bye-laws and the necessary provisions of the master plan. The said notification specified that agricultural land being of an area of 2 acres (0.8 hectares) and above would be within the definition of farmhouse and that 500 sq.metres of construction/covered area/FAR would be permissible on such farmhouse. On 25.9.1998, the defendants issued a circular which amongst other instructions laid down a levy of fees on additional FAR plus surcharge of 10% in respect of cases where unauthorized construction had been carried out in violation of pre 23.7.1998 norms, but which were within the norms which had been revised vide notification dated 23.7.1998. In furtherance of said notification, further notifications and advertisements were published by the defendants from time to time inviting the general public to get their unauthorized/excess construction regularized. The plaintiff received a letter dated 21.1.2000 from the defendants whereby he was asked to take necessary steps to avail the facility of the aforesaid amnesty scheme for regularization of the excess coverage in the suit property. In response thereto, the plaintiff deposited his application for availing of the amnesty scheme on 16.3.2000.

3. While the aforesaid application of the plaintiff for regularization was pending consideration with the defendants, the plaintiff received a notice dated 6th July,2001 under Section 344(2) and 344(4) of the Delhi Municipal Corporation Act, wherein the defendants for the first time informed the plaintiff that there was excess area of about 557.35 sq.metres in the suit property without any details as to how the said excess area had been calculated . The notice also did not detail the portions of the property in which allegedly excess area existed. The plaintiff's allegation is that the said notice was malafide, illegal and without jurisdiction, apart from being in violation of the policies and schemes of the defendants themselves, and issued in spite of the fact that the application of the plaintiff for regularization was pending with the defendants. While the plaintiff was still trying to sort out the regularization matter, the defendants in a highhanded manner without serving any notice on 26.4.2002, demolished portions of the suit property at the back of the plaintiff.

4. On 7.8.2000, another notification was published in the official gazette, notifying that the Government had amended/modified the master plan for Delhi, 2001 and that the planning and development with respect to farmhouses would be the same as existing prior to the notification dated 23.7.1998. On 16.08.2002, the officials of the defendants visited the suit property and threatened to seal the same and to carry out further demolition action on the plea that a public notice had been issued in the Times of India in this regard. The plaintiff alleges that the aforesaid action of the defendants is without jurisdiction in view of the fact that his application for regularization is still pending consideration with the defendants and is against their own policy which has been widely published by the defendants from time to time in leading newspapers, which detail the norms being adopted by the defendants for the purpose of regularization of property which has come up prior to 23.7.1998.

5. In the course of hearing, learned Counsel for the plaintiff contended that the Central Government had modified the master plan of Delhi under Section 11A(2) of the DDA Act, 1957 by notification dated 23.7.1998. By this notification, apart from other properties even in respect of farm houses certain extra construction was permitted. The plaintiff apart from other farmhouse owners had applied in pursuance of these relaxed norms for regularization of the excess coverage, though the plaintiff had not added towards the farmhouse in any manner after obtaining completion certificate dated 16.11.1984 and had not raised any construction thereon subsequent to the said date. The plaintiff had deposited his application on 16.3.2000, long before the second notification dated 7.8.2000 was issued by which these relaxations were withdrawn.

6. Learned Counsel for the plaintiff has also drawn my attention to the fact that this Court in C.W No. 7697/2000, Holistic Farms Pvt.Ltd. v. MCD and Anr. decided on 23.10.2002 and Deepak Malhotra v. MCD and Anr. 2003 II AD (Delhi), 594 has held that notification dated 7.8.2000 was to be given prospective effect and that the same did not apply retrospectively, meaning thereby, that till the notification dated 7.8.2000 was issued, amended bye-laws and relaxed norms continued to operate from 23.7.1998 to 6.8.2000, as per which the rate to be charged for regularization of the excess area was Rs. 450/- per sq.metre. Learned Counsel for plaintiff contended that the notice dated 6.7.2001 apart from the fact that it was without any details as to how the excess area had been calculated, was even otherwise without jurisdiction in view of the own policies and schemes of the defendants and in view of the further fact that the plaintiff had applied for regularization of the excess area well before the issue of notification dated 7.8.2000 by which the earlier amnesty scheme was withdrawn.

7. Learned Counsel for the plaintiff, in the above context, placed reliance on the judgment in Krishan Gopal v. Municipal Corporation reported in 1971 Rajdhani Law Reporter (Note 49), wherein it was held that though Section 343(4) bars the jurisdiction of Civil Court, but this bar does not apply where the Corporation acts without jurisdiction or contrary to the statute that created it (per Firm Seth Radha Krishan v. Administrator, Municipal Committee, Ludhiana ; State v. N. Ramaswami Iyer ; Dhulabhai etc. v. State ).

8. Next, reference was made to the judgment in Nahar Singh v. Municipal Corporation of Delhi 1973 Municipal Corporation Cases 281, wherein this Court reiterated relying upon Krishan Gopal's case (supra) that a civil court has jurisdiction when action is being taken without jurisdiction or contrary to the statute.

9. The contention of learned Counsel for the defendants, on the contrary, is that a bare perusal of Section 347-E of the Delhi Municipal Corporation Act, 1957 makes it abundantly clear that the appropriate remedy available to an aggrieved person in the matter of demolition/sealing is to approach the appropriate authority, which in this case is the Appellate Tribunal of M.C.D. and, as such, the suit of the plaintiff is liable to be dismissed on this ground alone under Order 7 Rule 11(d) of the Code of Civil Procedure. Further, it is contended that pursuant to notice dated 6.7.2001, demolition order dated 27.7.2001 was passed as the excess area of 557.35 sq.metres was found unauthorized. On 26.4.2002, the demolition action was partly taken, and there still existed unauthorized construction in the suit property which was liable to be demolished. The policy for regularization having been withdrawn by the defendants, the application for regularization made by the plaintiff stood rejected automatically. As such, it is denied that the action of the defendants was without jurisdiction, illegal or arbitrary in any manner.

10. Reliance was placed by learned Counsel for the defendants on a judgment of a learned Single Judge of this Court reported in 2001 (58) DRJ 677, Prabhu Dayal v. MCD and Anr., wherein the suit filed by the plaintiff was dismissed as not maintainable on the ground that the provisions of Section 347-E of the Delhi Municipal Corporation Act, 1957 were squarely applicable and as such the bar under Section 41(h) of the Specific Relief Act had come into play.

11. In my considered opinion, the aforesaid decision is clearly distinguishable in view of the fact that there was no allegation in the said case that the issuance of the notice was without jurisdiction, and accordingly it was held that the appropriate remedy for the plaintiff was to file an appeal before the Appellate Authority once show cause notice and demolition order had surfaced. The present case is a case where issuance of the show cause notice is alleged to be without jurisdiction in view of the fact that the same was contrary to the notified scheme of Municipal Corporation itself and the plaintiff's application for regularization was pending with the defendants at the time of issuance of show cause notice.

12. In the above context, reference may be made to the judgment of the Apex Court in Shiv Kumar Chadha v. Municipal Corporation of Delhi and Ors. , which was also a case pertaining to and involving interpretation of Sections 343 and 347-E of the Act. The Apex Court, after discussing the entire gamut of law, held that in spite of the bar prescribed in Sub-sections 4 and 5 of Section 343 and Section 347-E of the Corporation Act over the power of the Court, under certain special circumstances, the Court can examine whether the dispute falls within the ambit of the Act. It was further held that once the Court is satisfied that either the provisions of the Act are not applicable to the building in question or the specific procedural requirements which are vital in nature, have not been followed, it shall have jurisdiction to inquire and investigate while protecting common law rights of the citizens. Paragraphs 28 and 29 of the judgment in Shiv Kumar Chadha's case (supra), which are apposite read as under:

28. According to us, it cannot be urged that the provisions of the Act have created any right or liability and for enforcement thereof remedy has been provided under the Act itself. The act purports to regulate the common law right of the citizens to erect or construct buildings of their choice. This right existed since time immemorial. But with the urbanisation and development of the concept of planned city, regulations, restrictions, on such common law right have been imposed. But as the provisions of the act intend to regulate and restrict a common law right, and not any right or liability created under the Act itself, it cannot be said that the right and the remedy have been given uno flatu e.g. in the same breath . Most of the cases of this Court referred to above related to statutes creating rights or liabilities and providing remedies at the same time. As such the principles enunciated therein, shall not be fully applicable in the present case. In spite of the bar prescribed under Sub-sections (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, whether the dispute falls within the ambit of the Act. But once the Court is satisfied that either the provisions of the Act are not applicable to the building in question or the basic procedural requirements which are vital in nature, have not been followed, it shall have jurisdiction, to enquire and investigate while protecting the common law rights of the citizens. Can a Court hold a suit to be not maintainable, although along with the plaint materials arek produced to show that the building in question is not within the Corporation limits, or that the constructions were made prior to coming into force of the relevant provisions of the Act We are conscious of the fact that persons who make unauthorised constructions by contravening and violating the building bye-laws or regulations often run to Courts, with pleas mentioned above, specially that no notice was issued or served on them, before the Corporation has ordered the demolition of the constructions.

29. It is well known that in most of the cities building regulations and bye- laws have been framed, still it has been discovered that constructions have been made without any sanction or in contravention of the sanctioned plan, and such constructions have continued without any intervention. There cannot be two opinions that the regulations and bye-laws in respect of buildings, are meant to serve the public interest. But at the same time it cannot be held that in all circumstances, the authorities entrusted with the demolition of unauthorized constructions, have exclusive power, to the absolute exclusion of the power of the Court. 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. 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 facie opinion that the order is nullity in the eye of law because of any jurisdictional error in exercise of the power by the commissioner or that the order is outside the Act .

13. The law laid down by the Supreme Court was followed by this Court in ANZ Grindlays Bank Plc. v. Commissioner, MCD reported in 1995 II AD (Delhi) 573, Manohar Lal Chatrath and Anr. v. Municipal Corporation of Delhi reported in 1999 VI AD (Delhi) 180 (DB), Prabhu Dayal v. MCD and Anr. reported in 2001 (58) DRJ 677 and Rajrani Gupta v. MCD and Anr. .

14. In ANZ Grindlays Bank Plc. (supra), it was held that though ordinarily civil suit against proceedings initiated for demolition does not lie and aggrieved person must avail the remedy of appeal, civil suit does lie in limited cases of jurisdictional error of Municipal Corporation, such as (i) when order is outside the Act, (ii) when property is outside corporation limits or (iii) construction was made prior to coming into force of law alleged to be violated.

15. In Rajrani Gupta v. MCD and Anr. , a Division Bench of this Court reiterated that no doubt it has been held that the appellate forum under the Delhi Municipal Corporation is an alternative and efficacious remedy which puts a specific bar on the Civil Court to entertain certain categories of suits, however such remedy is not an absolute prohibition to civil suits of every nature. It is necessary for a Court to examine as to whether a plaint laid before it along with materials produced on record falls within the mischief which has been sought to be remedied in the categories laid down by the Supreme Court of India.

16. Another Division Bench of this Court in Manohar Lal Chatrath and Anr. v. Municipal Corporation of Delhi 1999 VI AD (Delhi) 180, relying upon the decision of the Hon'ble Supreme Court in Shiv Kumar Chadha's case (supra), rejected the application of the defendant under Order VII Rule 11 (d) of the Code, holding that a perusal of Order VII Rule 11(d) of the Code shows that the plaint could be rejected only if it appeared from the statement in the plaint to be barred by any law. Even if the expression, the statement in the plaint was given a liberal meaning, documents filed with the plaint may be looked into, but nothing more. It was further held that in view of the fact that the averments made in the plaint prima facie show that the appellants pleaded that no new or unauthorized 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 passing of the demolition and/or sealing orders and in view of the further fact that on these pleadings two issues were also framed, the ingredients of Order 7 Rule 11(d) of the Code were not satisfied and thus the plaint could not be rejected.

17. On the strength of the above decision, Ms.Nandni Sahni, learned Counsel for the plaintiff contended that in the instant case the plaint could not be rejected under Order VII Rule 11(d) of the C.P.C. nor could the provisions of Order XIV Rule 2 C.P.C. come to the aid of the defendant. It was urged by her that the question whether the suit was not maintainable or not could not be decided as a preliminary issue, especially when it was a mixed question of law and fact, arising not merely on the basis of allegations made in the plaint, but the stand taken by the defendant in their written statement.

18. Reference was made by her in this regard to a judgment of the Apex Court in Lufthansa German Airlines v. Vij Sales Corporation . Paragraph-5 of the said judgment reads as follows:

5. After hearing learned Counsel for the parties, we are of the opinion that the present case was not one of such suits which should have been disposed of on the preliminary issue. While deciding the question whether the suit was barred by limitation, the High Court had to examine the allegations made in the plaint and the stand taken by the appellant in the written statement. In our view, it shall not be proper for this Court to express any opinion on the finding recorded by the learned Single Judge on the question of limitation. The proper course shall be to direct that the trial of the suit which had been withheld for more than 14 years should proceed....

19. There is yet another aspect of the matter. A bare glance at the issues framed in the instant case and held to be friable shows that one of the issues framed on the basis of the pleadings and the documents of the parties is: Whether the impugned notice dated 6th July, 2001 is illegal and without jurisdiction and, if so, to what effect (Issue No.5).

20. Needless to state, evidence will have to be adduced by the parties in respect of the above issue (Issue No.5), which is a mixed question of law and fact. Issue No. 2 which pertains to the maintainability of the suit, in my considered opinion, is closely and inextricably linked with Issue no.5. Assuming the impugned notice dated 6th July, 2001 is held to be illegal and without jurisdiction, there can be no dispute that the present suit must be held to be maintainable in view of the judgment of the Hon'ble Supreme Court in Shiv Kumar Chadha's case (supra) and of this Court in Manohar Lal Chatrath's case (Supra).

21. Before parting with this order, it will also be apposite to note that it is the contention of the plaintiff that the present suit was filed in this Court as no Appellate Tribunal existed on the date of the institution of the suit.

22. In view of the aforesaid, in my considered opinion, the suit being founded on the allegation of the plaintiff that the notice dated 6th July, 2001 issued by the defendant is illegal and without jurisdiction, is maintainable in this Court and will not be hit by the bar of Section 347-E of the Delhi Municipal Corporation Act, 1957. Preliminary Issue No. 2 is decided accordingly.

23. Parties are directed to proceed with the trial of the suit in accordance with law.

24. List before the Joint Registrar on 18th September, 2006 for further proceedings.