Delhi High Court
M.C.D. vs Mohit Goel on 19 April, 2016
* HIGH COURT OF DELHI AT NEW DELHI
+ R.F.A. 469/2006
Pronounced on: 19th April, 2016
M.C.D. .....Appellant
Through: Ms. Amita Gupta, Advocate
Versus
MOHIT GOEL .....Respondent
Through: Mr. A.K. Bhattacharya, Advocate
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J.
1. This is an appeal filed by the appellant Municipal Corporation of
Delhi (MCD) against the judgment and decree dated 5th July, 2005
by virtue of which the learned Additional District Judge (ADJ) has
awarded a sum of Rs.1 lac as damages to the respondent/Mohit
Goel along with interest @ 6% per annum from the date of filing of
the suit till realization of the decretal amount. The aforesaid
amount of Rs.1 lac has been awarded as damages/compensation to
the respondent/plaintiff on account of demolition of the shop of the
respondent/plaintiff on the third floor on the basis of an alleged
illegal demolition order.
2. Briefly stated the case set up by the respondent/plaintiff is that he
had filed a suit for damages of Rs.10 lacs against the present
appellant/defendant on the ground that he had purchased a shop on
third floor of freehold property bearing Municipal No.3226, Ward
No.VI, situated at Gali Chaumukha Mandir, Hauz Qazi, Delhi with
common stairs and passages from the ground floor to the third floor
from one Smt. Saroj Jain wife of Shri Vinay Kumar Jain, resident
of 2688-91, Kinari Bazar, Delhi on 2nd August, 1994 vide a
registered Sale Deed. It is alleged by him that the shop was
mutated in his name in the municipal corporation record of the city
zone on 14.10.1995 and the respondent/plaintiff has been regularly
paying the house tax of the said shop from the date of mutation.
The respondent/plaintiff was using the said shop on the third floor,
more particularly shown in the site plan attached to the plaint for
the purpose of storage and dealing with welding machines and
welding materials for which he had a head office at 154, DSIDC
Sheds, Okhla Industrial Area-I, New Delhi. It was alleged by him
that apart from using the suit premises for storage, he was also
running his office from a part of the suit premises. He denied
having raised any construction on the said shop of his own. It is
alleged by him that in the month of November, 1998,
respondent/plaintiff could not visit the suit property as he was out
of station and when he came back on 07.12.1998, he was shocked
to see that the roof and the shutter of the suit property were
demolished and his articles including furniture, documents, etc.
were missing. It was alleged by him that his shop was demolished
illegally and mischievously without any rhyme or reason because
of which his articles worth Rs.4 lacs which were kept in the suit
property and furniture worth Rs.1,50,000/- suffered damages. It
was also stated by him that there are in all seven shops on the third
floor while as he alone was targeted which has resulted damages to
the tune of Rs.5,50,000/- to him.
3. The respondent/plaintiff allegedly issued a notice dated 10.12.1998
to the appellant/defendant calling them to pay damages of Rs.10
lacs and since he did not respond to the same, he filed the suit for
damages.
4. The appellant/defendant filed its written statement and took
number of preliminary objections with regard to maintainability of
the suit. It was stated by them that the process of law as enjoined
under Section 343 and Section 344 of the Delhi Municipal
Corporation Act, 1957 were duly complied with and notices were
issued to one Mukesh and since he failed to respond to the notice
consequently an order of demolition was passed on 04.02.1994.
They contested the suit on the ground that the statutory notice
under Section 477 and 478 of the Act was required to be given
before filing of the suit. On merits also they challenged the
averments made to the effect that damages to the tune of Rs.4 lcas
of the stock and trade and furniture to the extent of Rs.1, 50,000/-
be suffered by the respondent/plaintiff.
5. On the pleadings of the parties, the learned ADJ framed as many as
13 issues which are as under:-
"1. Whether the suit is properly valued for the purpose
of jurisdiction and court fee? OPP.
2. Whether the suit is barred by provision of Section
477/478 of the Delhi Municipal Corporation Act,
1957 for want of service of statutory notice? OPD.
3. Whether any notice under Section 343/344 of the
DMC Act was issued prior to demolition and, if so,
whether the said notice was legal? OPD.
4. Whether there is any suppression of material facts
by the plaintiff and, if so, whether the suit is liable
to be dismissed on that count? OPD.
5. Whether the plaintiff has carried out any
unauthorised construction in the suit premises
either prior to or even after part demolition of suit
property and if so, its effect? OPD.
6. Whether the plaintiff has any locus to file the
present suit and the present suit is maintainable?
OPP.
7. Whether a registered sale deed has been executed
in favour of the plaintiff and his name is mutated in
the revenue records of the defendant/MCD and, if
so, its effect? OPD.
8. Whether the plaintiff has been misusing the suit
property and whether there is additional
unauthorised construction and alterations in the
suit premises and if so, its effect? OPD.
9. Whether the plaintiff has kept articles worth
Rs.4,00,000/- and furniture worth Rs.1,50,000/- in
suit property and if so, its effect? OPP.
10. Whether the plaintiff is entitled to compensation
for a sum of Rs.10 lacs as damages, if any, caused
to his property and person? OPD.
11. Whether the plaintiff is also entitled to payment of
interest on the aforesaid amount and if so, for
which period and at what rate? OPP.
12. Whether the alleged legal notice dated 10.12.1998
was issued and served on the defendant? OPP.
13. Relief."
6. Both the appellant/defendant and the respondent/plaintiff examined
one witness each in support of their respective case. The
respondent/plaintiff filed his Affidavit as PW-1 and permitted
himself to be cross examined while as appellant/defendant
examined one S.R. Hassan, Assistant Engineer as DW-1 who filed
his Affidavit Ex.D-1 and was also cross-examined.
7. All the issues except issue Nos. 5 and 8 were decided in favour of
the respondent/plaintiff. So far as issues No.5 and 8 are concerned
they were partially decided in favour of both the parties. Both
these issues pertain to raising of unauthorised construction after the
demolition and some other aspect. I am purposely not referring to
the same in detail for the time being.
8. I have heard the learned counsel for the parties. I have also gone
through the record. However, after perusal of the record, I am of
the view that the learned ADJ has unnecessarily framed 13 issues
and one of the main issues with regard to the maintainability of the
suit itself which ought to have been framed has skipped the notice
of the learned ADJ and this issue was with regard to the
maintainability of the suit itself. This can be understood only when
it is noticed that the entire crux of the suit of the
respondent/plaintiff claiming damages to the tune of Rs.10 lacs is
premised on the ground that his shop was demolished in pursuant
to an illegal order of demolition. This is an averment made by him
not only in the plaint but also sought to be proved by him by filing
his Affidavit. This order of demolition is being called illegal is on
account of the fact that no notice under Section 343/344 of the
Delhi Municipal Corporation Act, 1957 is purported to have been
given either to the respondent/plaintiff or shown to have been given
to the owner, occupier or the person at whose instance the alleged
unauthorized construction has been carried out. It was the case of
the appellant/respondent that the notice was served on one Mukesh
but the Court has held that it has not been established that Mukesh
was the owner, occupier or the person who raised alleged
unauthorized and illegal construction. It is on the basis of this
evidence that the issue numbers 2,3 and 12 have been decided by
the learned ADJ in favour of the respondent/plaintiff and against
the appellant/defendant, holding that the order of demolition was
not sustainable in the eyes of law as provision of Section 343 of the
Act were not complied with.
9. This observation of the learned ADJ that the order of demolition is
illegal and non est in law, could not have been given in view of the
fact that as per Delhi municipal Corporation Act, 1957 the
jurisdiction of a Civil Court has been completely barred to rule on
the demolition order. A reference in this regard is drawn to Section
343(2) of the Delhi Municipal Corporation Act, 1957, which reads
as under:-
"343 Order of demolition and stopage of buildings and
works in certain cases and appeal
(2) Any person aggrieved by an order of the
Commissioner made under sub-section (1) may prefer an
appeal against the order to [the Appellate Tribunal]
within the period specified in the order for the demolition
of the erection or work to which it relates."
10. Section 343 sub-rule (1) provides for passing of an order of
demolition and stoppage of buildings and works in certain cases
and appeal while as sub-rule (2) clearly lays down as any person
aggrieved by an order of the Commissioner made under sub-rule
(1) which is including the order of demolition can file an appeal
before a specialized Tribunal which is known as MCD Appellate
Tribunal. Further, any person aggrieved by the order of demolition
can file the appeal. It may be also pertinent here to mention that
according to the respondent/plaintiff he had purchased the property
in the month of August, 1994 while as property was booked in
January, 1994 and the demolition order is passed on 04.02.1994.
Therefore, he could have challenged the order of demolition only
as an 'aggrieved person' before a MCD Appellate Tribunal and not
before a civil court.
11. Similarly, in sub-rule (4) it has been clearly laid down that no
Court shall entertain any suit, application or order proceeding for
injunction or other relief against the Commissioner to restrain him
from taking any action or making any order in pursuance of the
provisions of this Section.
12. The provision of filing an appeal against other orders under the
MCD Act is also taken care of by the legislature by incorporating
Section 347-E which bars the jurisdiction of Courts, which reads as
under:-
"Section 347E 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 347-B 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 347-B, shall
continue to be dealt with and disposed of by that court as
if the said section had not been brought into force."
13. A perusal of the aforesaid provisions of law clearly bars the
jurisdiction of the Civil Court from entertaining any suit with
regard to order of demolition. If that be so, the fact that the
respondent/plaintiff is making the order of demolition as
substratum of his case to claim damages then he ought to have first
got the order of demolition set aside from the Appellate Tribunal,
MCD which has not been done by him till date. If that be so, then
in my considered opinion, the suit as framed by the
respondent/plaintiff which has been decreed by the learned ADJ
could not have been entertained at all and was in fact liable to be
rejected under Order 7 Rule 11 sub-Clause (d) of the CPC. These
facts seem to have gone unnoticed on the part of the learned ADJ.
14. In addition to this, the question of show-cause notice being served
on the respondent/plaintiff did not arise and the observation of the
learned ADJ that the principle of natural justice deserves to be
followed afresh is also totally unwarranted. This is because of the
fact that admittedly, the respondent/plaintiff has purportedly
purchased the suit property on 02.08.1994 while as the suit
property was booked for unauthorized construction seven months
prior to that on 19.01.1994 and the order of demolition was passed
on 04.02.1994, therefore, there was absolutely no question of
notice being served on the respondent/plaintiff who was nowhere
in existence at that point of time.
15. Keeping in view the aforesaid totality of circumstances, I feel
instead of going into the merits of the appeal on the basis of the
issues which have been framed by the learned ADJ, it is evident
that entertaining of the suit by the learned ADJ in the Court below
was illegal and unwarranted in view of specific bar contained under
Section 343, sub-rule (2) and (4) and Section 347-E of the Delhi
Municipal Corporation Act, 1957.
16. I therefore, set aside the judgment and decree passed by the learned
ADJ awarding damages to the tune of Rs.1 lac along with interest
@ 6% per annum to the respondent/plaintiff from the date of
decree till the date of realization. However, it shall be open to the
respondent/plaintiff that in case he still feels aggrieved from the
order of demolition, he shall be free to have such recourse as may
be permissible to him in law. With these observations, the appeal
of the appellant stands allowed and the impugned judgment and
decree is set aside.
17. Pending applications also stand disposed of.
V.K. SHALI, J.
APRIL 19, 2016
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