Bal Kishan Das vs Municipal Corporation Of Delhi
2010 Latest Caselaw 4029 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                  Judgment Reserved on: 26.7.2010
                  Judgment Delivered on: 31.08.2010

+                        RSA No.76/1991



BAL KISHAN DAS                            ...........Appellant
             Through:          Mr.S.C. Nigam, Advocate.

                   Versus

MUNICIPAL CORPORATION OF DELHI
                                ..........Respondent
            Through: Ms.Saroj Bidawat, Advocate.

       CORAM:
       HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

     2. To be referred to the Reporter or not?               Yes

     3. Whether the judgment should be reported in the Digest?
                                                          Yes


INDERMEET KAUR, J.

1. This second appeal has impugned the judgment dated

3.10.1991 passed by the first Appellate Court endorsing the

judgment and decree dated 18.2.1989 passed by the Trial Court

wherein the suit of the plaintiff was dismissed.

2. The appellant before this court is the plaintiff. He is stated

to be the owner of a double story building with barsati on the top

floor constructed upon plot no.2, Sundar Nagar Market, New Delhi.

As per the averments in the plaint, the plaintiff was in occupation

of the suit property as a tenant since 1955. On 2.8.1980 he had

purchased this property vide a sale deed from its erstwhile owner.

His contention is that the property has been maintained in the

same state and no new construction has been raised. On

15.11.1980 officials of the MCD i.e. the defendant department had

alleged that the rear portion of the property had been raised

unauthorisedly; they sought to demolish it. This act of the

defendant is arbitrary and without any jurisdiction. No show cause

notice under Section 343 of the Delhi Municipal Corporation Act

(hereinafter referred to as the „DMC Act‟) had been served upon

him. Plaintiff had accordingly filed the present suit seeking an

injunction against the defendant.

3. The Trial Court had framed five issues. They read as follows:

1. "Whether the defendant was served proper show cause and demolition notice upon the plaintiff? "

2. "Whether the construction is old i.e. constructed in 1957 as alleged in the plaint? OPP"

3. "Whether the suit is barred in view of Sec. 477/476 of the D.M.C. Act?"

4. "Whether the suit is not maintainable in view of Section 41(h) of the Specific Relief Act, read with Secs.

343 and 344 of the DMC Act?

5. Relief.

4. The onus to discharge issue no.1 was upon the defendant.

He had examined four witnesses in defence. Ocular testimony of

the witnesses as also the documentary evidence placed on record

had been relied upon; it was held that notice to show cause and

demolition notice had been served upon the plaintiff by the

defendant. Procedure of Section 343 of the DMCT Act had been

duly complied with. This issue was decided in favour of the

defendant and against the plaintiff. The further part of the

judgment had held that the suit is not barred under Sections 477

and 478 of the DMC Act; it is maintainable; there is no bar under

Section 41(1) of the Specific Relief Act. Suit of the plaintiff was

dismissed.

5. In the first appeal on 3.10.1991, the judgment of the Trial

Court was endorsed.

6. This is a second appeal. On 31.3.1992 after admitting the

appeal, the following substantial question of law were formulated

which inter alia reads as follows:

"(1) Whether there be any finding returned on the basis of the material not found on record?

(2) Can liability for demolition if ever the same has been incurred before the year 1957 when the area was administered by the NDMC under the Punjab Municipal Act and the same having not been taken cognizance of by them, be enforced on transfer of the area to the respondent under Section 343 of the D.M.C.Act?

(3) Can the court pass a decree without returning a finding on a vital issue (Issue No.2 in this case) in respect whereof the evidence is available on record?"

7. The contention of the learned counsel for the appellant is

that the impugned judgment is perverse inasmuch as it is based on

no evidence. It is submitted that in para 3 of the plaint there is a

specific averment that no new construction has been raised on the

property and the property is the same state as it was earlier. In

the written statement, it has been replied that this is a matter of

record; there is no specific denial to this averment. The provisions

of Section 343 of the DMC Act were not attracted. No action could

have been initiated under this provision of law. Admittedly the

owner of this property up to 2.8.1980 was the erstwhile owner

namely Mrs. M.D.Kagal. Attention has been drawn to the version

of DW-3. It is submitted that there is no material elicited in his

version to satisfy the finding on issue no.1 that the show cause and

demolition notice had been served upon both owner and the tenant

of the suit property. The Acknowledgement Card has also not been

proved. In the entire testimony the name of M/s Popular Chemists

has even otherwise been described as M/s Popular Chemicals

Works. To support this arguments, learned counsel for the

appellant has placed reliance upon a judgment reported in

34(1988) DLT 118 Mahinder Singh & Ors. Vs. Municipal

Corporation of Delhi wherein this Court had held that a notice

under Section 343 should be served upon the person at whose

instance the erection or the work had been commenced which also

includes the owner of the building. There is no such evidence of

service of notice upon the appellant as also Mrs.M.D.Kogal who

was the owner of the property at the relevant time.

8. It is submitted that as per the case of the defendant, the

unauthorized construction is on the ground floor but the first floor

of the same property is not unauthorized which is a wholly

contradictory plea. Even otherwise the so called unauthorized

construction had been incurred prior to 1957 when the area was

under the NDMC and as such was governed by Punjab Municipal

Act; the NDMC had not taken cognizance of the so called offence.

To substantiate these averments attention has been drawn to the

cross-examination of DW-2 wherein he has stated that there is no

report in the record to show that anyone from MCD ever detected

any unauthorized construction from 1957. It is submitted that

there could not be any transfer of liability under the DMC Act to

the MCD. This has also raised another vital and substantial

question of law. For this proposition, reliance has been placed

upon AIR 1973 Delhi 198 MCD Vs. Smt. Surjit Kaur. It is submitted

that where the liability has been incurred under the Punjab

Municipal Act i.e. prior to 1957 as in this case and no action having

been initiated under the said statute, no action could lie under the

DMC Act.

9. Arguments have been countered by learned counsel for the

respondent. It is submitted that the findings of the two courts

below call for no interference; the show cause notice and the

demolition notice had been served upon the plaintiff i.e. M/s

Popular Chemists of whom Bal Kishan Das was a partner as also

the owner i.e. Dr. Mrs. M.D.Kagal. It is pointed out that admittedly

the plaintiff had not informed the MCD about the change of the

ownership and the subsequent purchase of the suit property by the

plaintiff on 2.8.1980 from Dr. Mr. M.D. Kagal. Nevertheless the

department has complied with service of the show cause notice and

demolition notice on both i.e. owner Dr. Mrs. M.D. Kagal as also

M/s Popular Chemists. The concurrent findings of the two fact

finding Courts below did not call for any interference.

10. Section 343 of the DMC Act reads as follows:

"[343. Order of demolition and stoppage of buildings and works in certain cases and appeal.- (1) Where the erection of any building or execution of any work has been commenced, or is being carried on, or has been completed without or contrary to the sanction referred to in section 336 or in contravention of any condition subject to which such sanction has been accorded or in contravention of any of the provisions of this Act or bye-laws made thereunder, the Commissioner may, in addition to any other action that may be taken under this Act, make an order directing that such erection or work shall be demolished by the person at whose instance the erection or work has been commenced or is being carried on or has been completed, within such period, (not being less than five days and more than fifteen days from the date on which a copy of the order of demolition with a brief statement of the reasons therefor has been delivered to that person), as may be, specified in the order of demolition:

Provided that no order of demolition shall be made unless the person has been given by means of a notice served in such manner as the Commissioner may think fit, a reasonable opportunity of showing cause why such order shall not be made:

Provided further that where the erection or work has not been completed, the Commissioner may by the same order or by a separate order, whether made at the time of the issue of the notice under the first proviso or at any other time, direct the person to stop the erection or work until the expiry of the period within which any appeal against the order of demolition, if made, may be preferred under sub section (2).

11. It is a mandatory requirement. It mandates that before the

Department i.e. the MCD passes a demolition order against a party

the service of the show cause notice on the concerned person is

mandated. Admittedly the ownership of the suit property prior to

2.8.1980 was with Dr. (Mrs.) M.D.Kagal. On that day vide sale deed

dated 2.8.1980 Bal Kishan Dass, partner of M/s Popular Chemists

had purchased this property. The show cause notice dated

1.9.1980 has been proved before the Trial Court as Ex.DW-3/A and

Ex.DW-3/B. DW-3 on oath has deposed that Ex. DW-3/B the show

cause notice dated 1.9.1980 was issued under the signatures of

I.C.Gupta , the Zonal Engineer, MCD; DW3 had himself gone to

serve this show cause notice on the party. As per his version, he

had served Ex.DW-3/B on the owner of the suit property but the

owner had refused to sign; his service report was proved as Ex.DW-

3/C. Perusal of Ex. DW-3/B shows that a notice under Section 343

and 344 of the DMC Act duly signed at point B by the issuing

authority i.e. by the MCD had been addressed to (i)

Dr.Mrs.M.D.Kagal, Red Cross Building, Red Cross Road, New Delhi

and at serial (ii) to M/s Popular Chemical Works, Shop No.2,

Sundar Nagar Market, New Delhi. Ex.DW-3/C, the service report

shows that the notice has been returned, copy of the same has

been pasted in the presence of the two witnesses namely

P.K.Chopra (at serial no.1) and M.K.Gupta at (serial no.2)and their

names find mention in Ex.DW-3/C. In his cross-examination, this

witness has stated that he has verified the name and address of the

owner of the suit property from the house tax record; further the

person who had refused to take the show cause notice Ex. DW-3/B

was a lady; notice was pasted at the house of the said lady. DW-4

has also corroborated this version of DW-3. He had brought the

dispatch register from the MCD department. He has deposed that

two notices i.e. notice no.331/UC/80 addressed to Mrs. Dr. M.D.

Kagal, Red Cross Building, Red Cross Road, New Delhi and M/s

Popular Chemical Works, Sunder Nagar Market, New Delhi were

dispatched against serial no.971. Ex.DW-3/B is the photocopy

produced from the Departmental Record. Ex.DW-3/A is the original

of this document (it appears that inadvertently FIR has also been

exhibited as Ex.DW-3/A).

12. Submission of the learned counsel for the appellant that this

evidence by itself is not a proof of the show cause notice and the

judgments of the two Courts below on this issue is a perverse

finding is not borne out from the record. As already aforenoted

supra by clear, cogent and categorical evidence of DW-3 and DW-4,

it had been proved that the show cause notice Ex.DW-3/A and

Ex.DW-3/B had been served upon the owner namely

Dr.Mrs.M.D.Kagal a lady and M/s Popular Chemical Works; the

first person had its address at the Red Cross Building, Red Cross

Road, New Delhi whereas the second person was served at the

address mentioned therein at Shop No.2, Sundar Nagar Market,

New Delhi. Ex. Dw-3/C is service report evidencing this. Merely

because the witnesses who had attested the document Ex.DW-3/C

had not been produced in the witness box has no reflection on the

non-veracity of the said document; they cannot be held to be

disproved for this reason alone. Service report Ex.DW3/C

categorically recites that the notices were pasted at the aforenoted

address in the presence of the two witnesses namely P.K.Chpra, JE

(Building) and M.K.Gupta JE (Building).

13. The order of demolition is Ex. DW 2/A dated 27.10.1980.

This demolition order was passed by DW-2 O.P. Jamgid, Zonal

Engineer (Building), MCD; he had deposed so on oath. It bore his

signature. The demolition notice Ex.DW-2/B has also been proved

in his version. Ex.DW-2/B is dated 27.10.1980. In his cross-

examination DW-2 has stated that the suit property had been

unauthorizedly covered; the open space area at the back of the

shop should have been open as per the standard plan of the

market; however, there was a 100% coverage of the plot whereas

80% of the total area could only be covered. FIR Ex.DW-3/A was

recorded after inspection. In his cross-examination, he has further

stated that the parties appeared in response to the show cause

notice but failed to show that it was an old construction raised

before 1957. He has further stated that he had passed the

demolition order after satisfying himself that the show cause notice

was served on the correct person. It is relevant to state that no

suggestion has been given to this witness that no demolition notice

or show cause notice had in fact been served upon the party.

14. This evidence adduced before the Trial Court had amply

established that the demolition order had been passed only after

the service of the show cause notice. Submissions of the learned

counsel for the appellant on this score are clearly without any

merit. There is no perversity in the finding of the two Courts

below. Both of them had scrutinized the oral and documentary

evidence in detail to arrive at this fact finding.

15. The judgment relied upon by learned counsel for the

appellant reported in the case of Mahinder Singh (supra) does not

apply to the facts of the instant case. In the instant case, it has

categorically been established by the oral testimony of DW-2 , DW-

3 and DW-4 that show cause notice had been served upon the

person concerned.

16. The contention of the learned counsel for the appellant that

Trial Court not having been given any conclusive finding on issue

no.2 has violated the mandate of Order 20 Rule 5 of the CPC which

has raised a substantial question of law is again an argument

without merit.

17. Order 20 Rule 5 CPC inter alia reads as follows:

"Court to state its decision on each issue- Judgments of other Courts shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision."

18. For this proposition reliance has been placed upon a

judgment of this Court reported in 1972 RLR 100 Ram Gopal Vs.

Jagdish Pershad . It is stated that in this case which was a second

appeal where one issue had not been decided the matter has been

remanded back to the Trial Court for trial in accordance with law.

This judgment does not apply to the facts of the instant case. In

the said case, the plaintiff had filed a suit for recovery against the

defendant as arrears of rent; he had claimed himself to be the

owner/landlord of the suit property; defendant was his tenant. The

defendant had disputed the plaintiff‟s claim as owner/landlord; his

contention being that Ishwari Pershad and Suraj were owners of

the property in dispute and he had purchased this property from

them in June 1966. Issue no.1 framed by the Trial Court related to

the fact as to whether the defendant had purchased the suit

property from Ishwari Pershad and Suraj and whether they were

competent to dispose of the suit property. This issue had not been

dealt with by the Trial Court as also by the first Appellate Court.

The judgment on which reliance has been placed upon had held

that this issue was purposeful for the determination of the suit

which issue had not been decided; it was in these circumstances

that the matter was remanded back. These facts are clearly

decipherable; they are distinct and would have no application to

the instant situation.

19. As already noted the present suit is a suit for perpetual

injunction. The onus to discharge issue no.2 as aforenoted was

upon the plaintiff. In this context, the finding on issue no.2 by the

Trial Court are reproduced and herein read as follows:

" The burden to prove this issue was on the plaintiff. The plaintiff has stated that the construction is old. But he did not produce the sanctioned site plan on record. In the plaint he has stated that the construction was raised after getting sanctioned plain from the NDMC, but the plaintiff has not produced or proved any such site plan sanctioned by the NDMC to show the exact construction which was sanctioned and the exact construction which exists at present. So adverse inference is to be drawn against the plaintiff. On the other hand, the DWs have categorically stated that the construction is recent one. As discussed by me in issue no. 1 and as per law laid down by our own High Court in Tulsi Devi Vs. MCD cited as 1985 DLT Vol. 27 page 413 the court is not supposed to give findings regarding the

construction being old or new. So no finding is given on this issue."

20. It was in this context that no finding was given on issue no.2.

Even otherwise this was a suit for perpetual injunction;

requirements of Section 343 of the DMC Act had been held to be

complied with; as such in view of the provision of Section 343(4) of

the DMC Act, the Trial Court had held that it had no jurisdiction to

entertain the present suit which had been dismissed. Finding on

issue no.2 was not relevant for the decision in the present suit. No

finding had been given on this issue primarily for the reason that

the plaintiff has not led any evidence on this score; site plan had

not been produced by him. While disposing of issue no.2, the Court

had held that the version of the witness of the defence has

established that the construction is a recent one.

21. The version of DW-2 and DW-3 which has been highlighted by

the learned counsel for the appellant to support his stand in fact

support the stand of the respondent. DW-2 has clearly stated that

the parties had appeared in response to the show cause notice

served upon them and they failed to show that this unauthorized

construction has been raised before 1957. This version of DW-2

also substantiates the version of the respondent that the show

notice had been served upon the plaintiff. DW-3 had stated that he

was posted as Junior Engineer in the area in 1979-80; he was

supposed to book coverage of rear open spaces of shops of Sundar

Nagar Market, New Delhi which were unauthorized. He has

deposed that he had visited the spot and found the coverage of the

open space pursuant to which he had prepared FIR Ex. DW-3/A;

this was obviously after his posting i.e. after 1979-80. Contention

of the plaintiff that this construction was prior to the year 1957 is

not borne out and has rightly been held by the Courts below that

no evidence on this score has been led by the appellant/plaintiff

which had led the Trial Judge to give no finding on issue no.2.

22. Admittedly prior to the year 1957 the Punjab Municipal Act

was in force and the NDMC was the administrator and in charge of

the disputed property. Thereafter the area under dispute had been

transferred to the MCD after the enactment of the Delhi Municipal

Corporation Act 1957. It is not the contention of the appellant that

there was no valid transfer of the liability from the NDMC to the

MCD. The MCD had taken over the administration of the disputed

area i.e. the area falling in the Sunder Nagar Market area with

effect from 1957. There is no evidence to show that this

construction was prior to 1957; the first Appellate Court had

endorsed the finding of the Trial Judge on issue no.2 that the

testimony of the witnesses of the defence had proved that the

unauthorized construction was made after 1957. As such the

judgment reported in Surjit Kaur (supra) would have no application

in which case admittedly the unauthorized construction had been

incurred prior to the year 1957.

23. There is no fault in the finding of both the Court below. The

substantial questions of law are answered accordingly. There is no

merit in the appeal. It is dismissed.

INDERMEET KAUR, J.

AUGUST 31, 2010 ss/nandan