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[Cites 14, Cited by 0]

Delhi District Court

R/O D­6/222A vs Commissioner M.C.D Town Hall on 1 November, 2010

                                  1

    IN THE COURT OF S.K. SARVARIA DISTRICT JUDGE­VIII 
                  ROHINI COURTS: DELHI



Civil Suit No. 323/2010 

Smt. Veena Dureja 

W/o Sh. Gulshan Dureja

R/o D­6/222A, First Floor, 

Sector­6, Rohini, 

Delhi­110085.                                           ... Plaintiff 

                              VERSUS



1. Commissioner M.C.D Town Hall, 

    Delhi.                                       ... Defendant No.1

2. Deputy Commissioner, M.C.D Rohini Zone 

    Sector­5, Rohini, Delhi­110085.              ... Defendant No.2

3. Executive Engineer M.C.D Rohini Zone 

    Sector­5, Rohini, Delhi­110085.              ... Defendant No.3




                                             Veena Dureja Vs MCD & Ors
                                             2

ORDER

1. Present suit for declaration and injunction has been filed by the plaintiff against the defendants. The case of the plaintiff in nutshell is that she is the owner in a possession of LIG premises owned by DDA bearing No. D­6/222 A, consisting of First, Second and Top floors, Sector­6, Rohini, Delhi, 11 00 85 (in short suit premises). The defendant No.3 had sent one Notice under Section 435 of DMC Act bearing No. D­414/EE (B) II/RZ/10 dated 6/1/2010 informing about demolition programme against unauthorized construction in the suit premises. Assistant Engineer and Defendant No.3 sent one vacation notice under Section 349 bearing No. D­594 AE (B)­II/RZ dated 6/1/2010 calling upon the plaintiff to vacate the alleged unauthorized construction within 24 hours with copy to SHO, Rohini Police Station . The defendant No.2 sent one show cause Notice under section 345­A of DMC Act, 1957 bearing No. 1485/DC/R Z/10 dated 4/2/2010 for carrying out ceiling within three days of the alleged unauthorised construction in shape of entire floor on the terrace at second floor room and room at top floor. The plaintiff replied on 5/2/2010 to the said Show Cause Notice dated 4/2/2010 of Veena Dureja Vs MCD & Ors 3 defendant No.2 requesting to regularise it under the provisions of law. The defendants demolished the alleged unauthorised construction on 12/3/2010 with the help of the police.

2. The defendant No.3 by Demolition Notice under section 435 DMC Act bearing No.D­689/EE/B/II/RZ/10 dated 16/3/2010 and the Assistant Engineer working under it sent undated vacation notice again after carrying out demolition on 12/3/2010 the top floor of the premises under intimation to the SHO North, Rohini, Sector­7, Delhi. The plaintiff sent reply dated 18/3/2010 requesting not to harass her. The plaintiff has prayed for the following reliefs:

a. To declare that the show cause notice dated 04.02.2010 issued by the defendant No.II to the plaintiff and the subsequent proceedings is illegal, without jurisdiction and having no binding force as it was served after the expiry of the statutory period of six months. b. To declare that the Demolition Notices dated 06.01.10 & 16.03.10 and the vacation notices dated 06.01.10 and undated one are no notices in the eyes of law as no sufficient periods given to the plaintiff as required under law.
Veena Dureja Vs MCD & Ors 4 c. To direct the defendants to regularize the alleged unauthorized nd premises on the 2 floor of the premises after payment of the requisite fees.
d. To declare that the acts and omissions of the defendants are illegal in the eyes not the rightful authority for initiating any action for demolition of suit premises as well as for issuing any notices on the property owned by DDA.
e. To direct the defendants not to harass the plaintiff by using tactics of threat and by misusing provisions contrary to law and to compensate the plaintiff for his said acts and omissions. f. To award damages to the plaintiff for demolition on top floor by the defendants.
g. To award costs of the suit.
h. To grant any other relief which this Hon'ble Court deems fit and proper under the circumstances of the case.
Veena Dureja Vs MCD & Ors 5
3. Defendants have filed the written statement and have raised the preliminary objections as to the very maintainability of the present suit. It is pleaded by the defendants that this court does not have the jurisdiction to entertain the present suit as the same is barred under Ss. 477, 478, 343 (3) and 347(E) of the DMC Act. They have stated that the demolition in the suit premises has been carried out on the direction of CBI. The appropriate show cause notices were issued. The demolition action was taken on 12/3/2010 and further order under section 345­A of the DMC Act was passed on 17/3/2010.

The defendants have denied the facts stated in the plaint and have prayed for dismissal of the suit with heavy costs.

4. In the replication the plaintiff has controverted the facts stated in the written statement and has reiterated the facts given in the plaint. The controversies between the parties in the pleadings resulted into framing of the following issues on 5/10/2010:

1. Whether suit is barred U/s 477 and 478 of the DMC Act as mentioned in preliminary objection no.1 of the WS? OPD Veena Dureja Vs MCD & Ors 6
2. Whether this court has no jurisdiction in view of section 343(3) and 347(E) of DMC Act as alleged in preliminary objection no.4 of the WS? OPD
3. Whether plaintiff is entitled to decrees of declaration, as prayed? OPP
4. To what amount of damages, if any, is the plaintiff entitled from defendant? OPP
5. Relief.

Issue Nos. 1 and 2 being legal issues were treated as preliminary issues and are being decided by the present judgement/order.

5. I have heard Ld. Counsel for the parties and have perused the record, relevant provisions of law and the written arguments filed on behalf of the plaintiff and the authorities relied on behalf of the parties. My findings on the preliminary issues framed are as under:

Veena Dureja Vs MCD & Ors 7 Issue Nos. 1 and 2

6. Both the technical issues are taken up together for the sake of convenience. The Delhi Municipal Corporation Act, 1957 (hereinafter referred to as "the Corporation Act") has made provisions for the constitution of the Corporation and has prescribed the procedure for election of the councillors, levy of taxes, sanitation and public health. Chapter XVI contains provisions regarding erection of buildings within the Corporation area.

7. Section 343 of the MCD Act refers to the order of demolition and stoppage of buildings and works in certain cases and appeal. According to sub­section (2) of Section 343,any person aggrieved by an order of the Commissioner made under sub­section (1) of Section 343 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.

8. According to Sub­section (3) of the Section 343, where an appeal is preferred under Sub­section(2) against an order of demolition, the Appellate Tribunal may, subject of the provisions of Veena Dureja Vs MCD & Ors 8 Sub­section (3) of section 347 C, stay the enforcement of that order on such terms, if any, and for such period, as it may think fit, provided that where the erection of any building or execution of any work has not been completed at the time of the making of the order of demolition, no order staying the enforcement of the order of demolition shall be made by the Appellate Tribunal unless security, sufficient in the opinion of the said Tribunal has been given by the appellant for not proceeding with such erection or work pending the disposal of the appeal.

Section 347E is as under:­ "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 347B and no such order or notice shall be called in question otherwise then by preferring an appeal under these sections.

(2)Notwithstanding anything contained in sub­section (1), every suit, application or other proceeding pending in any court immediately before the commencement of section (7) of the Delhi Municipal Veena Dureja Vs MCD & Ors 9 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."

9. Because of sub­sections (4) and (5) of section 343 and also section 347E aforesaid the stand of the Corporation is that the Courts have been debarred from entertaining suits, applications or proceedings for injunction, against any order or notice for demolition and the order of demolition passed by the Commissioner, subject to appeals before the Appellate Tribunal and Administrator shall be deemed to be final and conclusive.

10. Section 9 of the Code of Civil Procedure, (hereinafter referred to as "the Code") says that Courts shall have jurisdiction to try all suits of civil nature "except suits of which their cognizance is either expressly or impliedly barred".

11. It is to be noted that in the written arguments filed on behalf of the plaintiff number of authorities are mentioned but only the copy of decision of our Hon'ble High Court in Suresh Goel versus Veena Dureja Vs MCD & Ors 10 MCD in CS (OS) No. 13 37/2002 passed on 6/9/2006 is filed. The other authorities mentioned in the written arguments are not produced for examination of this court. Similarly, learned counsel for defendants has relied upon only one authority titled as Prabhu Dayal versus MCD and another 90 (2001) DLT 710 Delhi. But Prabhu Dayal's case (supra) pertains to the period prior to very important amendments in Section 343 and 347E by the amending Act 42 of 1984. Similarly in Suresh Goel's case (supra) relied on behalf of the plaintiff the suit was filed in 2002 on the basis of the Notice dated 6/7/2001 issued by MCD. Therefore, Suresh Goel's case (supra) also pertains to the pre­amendment period. Hence, the authority relied on behalf of both parties which are produced before the court are not much help. Same should be the position of the authorities mentioned in the written arguments of the plaintiff but not produced as these also pertain prior to the amendments in the relevant provisions by Amending Act 42 of 1984.

12. Very important amendments have been made in Subsection (4) of Section 343 by Amending Act 42 of 1984 by inserting the words 'No court' to entertain any suit, application or Veena Dureja Vs MCD & Ors 11 other proceedings for injunction or other reliefs against the Commissioner to restrain from taking any action or making any order in pursuance of provisions of Section 343.Similarly, Section 347E is inserted by Amending Act 42 1984 and is made effective with effect from 10/12/1985. The said provisions quoted above clearly bar the jurisdiction of the courts in respect of any order or notice appealable under Section 343 and Section 347. However, Sub­section (2) of Section 347 E says the pending cases, applications and other proceedings in any court prior to the amendments inserted by Act 42 of 1984 shall be continued to be dealt with by unamended provisions of law. The reliefs claimed in the present suit referred before, are covered by section 343 and 347E and the bar created by these provisions of law. Further, while deciding the application under Order 39 Rule1 and 2 CPC of the plaintiff on 8/6/2010 my learned predecessor has also held that there was specific bar on the civil courts to entertain the suit and this court has no jurisdiction to entertain and try the present suit and application. I also subscribe the same view due to the reasons given above.

13. Section 477 of the Corporation Act protects the Veena Dureja Vs MCD & Ors 12 Corporation and its employees for anything done by them in good faith or intended to be done. No suit or prosecution can be entertained by the Court against them by virtue of protection given in Section 477. Yet another impediment in the maintainability of the present suit is Section 478 of the Corporation Act which requires that requisite two months Notice as indicated in the said provision of law should be given prior to filing of the suit against the Corporation or against its officers etc. Although, plaintiff has pleaded giving of Notice to defendant prior to filing of the suit but the copy of the same is not filed to ascertain whether requisite two months Notice is given to the defendants before filing of the suit. Therefore, the relief of declaration, damages etc which are not urgent reliefs are hit by said Section 478. What is more as regards the relief of damages the plaintiff has not quantified the damages claimed perhaps to avoid paying the court fee.

14. From the aforesaid and perusal of the record, it is apparent that the present suit falls within the four corners of the Section 343, 347E and Sections 477, 478 of the MCD Act and the jurisdiction of this court is barred. Thus, the suit is not Veena Dureja Vs MCD & Ors 13 maintainable.Both preliminary issues are decided in favour of the defendants and against the plaintiff. Resultantly the suit is dismissed with costs. The judgment be sent to the server (www delhidistrictcourts.nic.in). The file be consigned to the record room.


Announced in the open court on 

      st
this 1    day of November,  2010

                                                          (S. K. SARVARIA) 

                                               DISTRICT JUDGE­VIII 
                                              ROHINI COURTS: DELHI




                                                                 Veena Dureja Vs MCD & Ors