Delhi District Court
Sh. Anil Kumar vs Municipal Corporation Of Delhi on 27 May, 2011
1
IN THE COURT OF SH. JAGDISH KUMAR: JSCCcumASCJcumGJ
KARKARDOOMA: DELHI
Suit No. 547/08
e102402c0047352008
Sh. Anil Kumar
S/o Sh. Vas Dev
(owner of Shop no. 6)
R/o 7/141, Geeta Colony,
Delhi110031. .....Plaintiff
Vs.
1. Municipal Corporation of Delhi
Through its Commissioner
Town Hall, Chandni Chowk,
Delhi.
2. The Assistant Engineer (Bldg.)
Municipal Corporation of Delhi
(Shahdara Zone)
New Delhi. ......Defendants
Date of Institution : 15.01.2008
Date of Reserving Order : 27.05.2011
Date of Order : 27.05.2011
SUIT FOR INJUNCTION
Suit No. 547/08 1/15
2
JUDGMENT
1 The present suit has been filed by plaintiff against the defendants for injunction. The brief facts as narrated in the plaint are that the plaintiff is the owner of shop no. 6 situated on ground floor forming part of property no. 2/102C, Geeta Colony, Delhi92 and the same was allotted to Late Sh. M. L. Malik by the Ministry of Rehabilitation Govt. of India and after the death of Sh. M. L. Malik his son Sh. Ashok Kumar Malik became the owner of the said property i.e. ground floor, first floor and barasati floor. It is further submitted that the construction of ground floor, first floor and barasati floor was carried out by Sh. Ashok Kumar, the previous owner, in March, 1989 as per the sanctioned plan. It is further submitted that Sh. Ashok Kumar Malik, the original owner, soled out the entire ground floor comprising of six independent shops to various persons. The plaintiff purchased one shop out of six shops and has been running his business therein.
2 The plaintiff further asserted that Sh. Ashok Kumar Malik has remarried with Smt. Krishna Malik, as his earlier wife Smt. Roop Suit No. 547/08 2/15 3 Malik was died. The plaintiff further asserted that there were various differences between Sh. Ashok Kumar Malik and his second wife Krishna Malik and there were lot of litigations between them, finally a divorce was pronounced between Ashok Kumar Malik and Smt. Krishna Malik in the year 199697. Sh. Ashok Kumar Malik was residing on the first floor. His second wife Krishna Mali received a huge compensation from her husband Sh. Ashok Kumar Malik by the order of Hon. High Court. Smt. Krishna Malik has hatred and having revengeful attitude against her previous husband Ashok Kumar Malik and his property, she started making complaints to various authorities against some unauthorized construction raised by the occupants of the first floor of the property 2/102C, Geeta Colony, Delhi which was allegedly constructed by the occupants of the first floor. The plaintiff asserted in his plaint that in connivance with Krishna Malik, the Assistant Engineer (Building) of Shahdara Zone, MCD had issued a notice dated 19.07.07 on false and frivolous grounds. It is not pointed out in the notice the unauthorized portion of construction. The plaintiff further asserted that he come to know through Web Site that the entire property bearing no. 2/102C had been booked as unauthorized construction. The construction has been shown of dated 06.01.03. He Suit No. 547/08 3/15 4 has further asserted that he has appalled against the notice U/Sec.349 of DMC Act before the Ld. MCD Appellate Tribunal but his appeal was dismissed by the Ld. Appellate Tribunal vide order dated 04.12.07 by holding that Tribunal has no jurisdiction to entertain the appeal against the notice U/Sec.349 of DMC Act. The Sec.349 of DMC Act is not appeal able U/Sec.347B of DMC Act. The plaintiff has filed the present suit being aggrieved of the notice.
3 The summons of the suit were issued to the defendants and after service, the defendants filed its WS. In WS the defendants took the preliminary objections that the suit is barred by the provisions of Sec.477 and 478 of the DMC Act, 1957 and the suit is without of any cause of action. It is submitted that the plaintiff has not come to the Court with clean hands. It is submitted that the property was booked for unauthorized construction up to the six shops at ground floor, four rooms and two bathroom, one kitchen, lobby with staircase with projection on municipal land at first floor, and same at second floor and three rooms, one bathroom, one veranda with staircase along with projection on municipal land at third floor. It is submitted that the unauthorized construction is actionable after passing of the demolition Suit No. 547/08 4/15 5 order as per law. It is further submitted that shop of the plaintiff is part of property bearing no. 2/102C, Geeta Colony, Delhi which was booked for unauthorized construction. The show cause notice dated 06.01.03 U/Sec.343 and 344(1) of DMC Act, 1957 was served upon the owner/builder by way of pasting but the owner/builder failed to give reply to the same within stipulated period. Therefore the demolition order notice dated 10.01.03 U/Sec.343 of DMC Act, 1957 were issued and served upon the owner but he failed to demolish the said unauthorized construction within stipulated period. Thereafter, the vacation notice dated 19.07.07 U/Sec.349 of DMC Act was issued and served on 21.07.07 to vacate the property.
The defendants denied almost all the averments of the plaintiff stated in the plaint and submitted that the plaintiff's property is also unauthorizedly constructed as the same is without sanctioned plan and in contravention of building byelaws. On the abovesaid grounds the defendants sought dismissal of the present suit. 4 Replication to the WS of defendants filed by the plaintiff in which he has denied the averments of defendants stated in the WS Suit No. 547/08 5/15 6 and reiterated and reaffirmed the contents of his plaint. 5 After completion of pleadings following issues were framed vide order dated 31.05.08:
(i) Whether the plaintiff is entitled to relief of permanent injunction, as prayed? OPP.
(ii) Whether the present suit is barred in view of Sec.
477/478 of the DMC Act, as alleged? OPD.
(iii) Whether the plaint does not disclose any cause of action, as alleged? OPD.
(iv) Relief.
6 The plaintiff examined himself as PW1. No other witness examined by the plaintiff. The defendants examined their sole witness Sh. S. K. Goel as DW1. The plaintiff placed on record documents from Ex.PW1/1 to Ex.PW1/11 and defendants has placed on record the documents Ex.DW1/1 and DW1/2 (colly).
7 I have heard the arguments from counsel for the parties and perused the file carefully. My issue wise finding is as under: Suit No. 547/08 6/15 7 ISSUE NO. 1 Whether the plaintiff is entitled to relief of permanent injunction, as prayed? OPP.
The onus to prove this issue is on the plaintiff. The plaintiff has prayed for perpetual injunction restraining the defendants from implementing the impunged order bearing no. D2071/EE(B) dated 19.07.07 with respect to shop no. 6 on the ground floor at property bearing no. 2/102C, Geeta Colony, Delhi92 without complying with the statutory provisions as laid down in Sec.343 of the DMC Act. The notice against which the plaintiff is seeking perpetual injunction is reproduced herein: "Whereas, it has been noticed that Premises No. 2/102C, Geeta Colony (Part) shop no. 6 has been occupied by the persons in contravention of Sec.346 of the DMC Act, 1957 as neither the occupant (S) has given notice for completion of the erected building nor the Commissioner, MCD has granted permission to occupy the same Details of unauthorized construction:
Suit No. 547/08 7/15 8
Vide File no. 276/UC/SHS dated 06.01.2003. Whereas, it has been established that unauthorized construction/deviations has been carried out in the said building and the Municipal Corporation of Delhi have to proceed in the matter in accordance with the law. Therefore, I Assistance Engineer (Building) Ajay Kumar, Zone, MCD, under Sec.349 of the DMC Act, 1957 call upon you to vacate the aforesaid premises/unauthorized construction forthwith of the receipt of this order, so that the MCD may take demolition/sealing action against unauthorized construction existing in the aforesaid premises as detailed above, failing which the demolition/sealing action shall be carried out at the risk and cost of the owner/occupier."
The notice bearing no. D2071/EE(B) dated 19.07.07 has be issued U/Sec.349 of the Municipal Corporation of Delhi Act. The notice has been issued on the basis of notice no. 276/UC/SHS dated 06.01.03. The Sec.349 of MCD Act is reproduced herein: "The Commissioner may by order in writing direct that any building which in his opinion is in Suit No. 547/08 8/15 9 a dangerous condition or is not provided with sufficient means of egress in case of fire or is occupied in contravention of section 346 be vacated forthwith or within such period as may be specified in the order:
Provided that at the time of making such order the Commissioner shall record a brief statement of the reasons therefore."
From the bare perusal of the Section 349 of DMC Act, it is essence of the Sec.349 of DMC Act that said notice has to be issued by the Municipal Commissioner, in the circumstances where he has opinion that the building which is ordered to be vacated is in a dangerous condition or is not provided with sufficient means of egress in case of fire or is occupied in contravention of Sec.346 of DMC Act. It is not the case of the plaintiff or defendants that the suit property is in dangerous condition or is not provided with sufficient means of egress in case of fire. Then the notice dated 19.07.07 has been issued in contravention of Sec.346 of DMC Act. The Sec.346 of DMC Act dealt with to get the completion certificate before occupying the property after getting construction as stated in Sec.346(1) of DMC Act. The plaintiff has deposed in his testimony that no notice bearing no. Suit No. 547/08 9/15 10 276/UC/SHS dated 06.01.03 has ever been served upon him. The notice U/Sec.349 of Municipal Corporation Act has been served upon him being the consequence of notice dated 06.01.03.
The defence of the defendant is that there was unauthorized construction in the property bearing no. 2/201C, Geeta Colony, Delhi9 and a show cause notice was issued to the owner/builder by way of pasting. I have perused the file. The defendant has placed on record the notice bearing no. 276/B/UC/SHS/2003 dated 06.01.2003 Ex.DW1/2 (colly). There are two notices bearing no. 276/B/UC/SHS/2003 dated 06.01.2003 on record which has been exhibited by DW1 as DW1/2 (colly). The first notice describes that in the election area 7374, Geeta Colony and at property bearing no. 2/102C there is construction going on without any permission. This document also shows that construction is also going on at the suit property. On the other hand, the plaintiff deposed in his examination inchief that he has purchased the property from previous owner Sh. Ashok Kumar Malik vide documents dated 05.05.1993. These documents has been exhibited as Ex.PW1/1 to PW1/6. The testimony of PW1 proves that on 05.05.1993 the suit property i.e. shop no. 6 was Suit No. 547/08 10/15 11 in existence. Which proves that the suit property was already constructed before 06.01.03. The fact mentioned in the notice dated 06.01.03 that construction is going on at the suit property without permission, is false. The DW1 deposed in his examinationinchief that the permission was granted to the previous owner to construct first floor, second floor and barasati floor and same was for the purpose of residence. Though this is not the defence of the defendants in their WS. The fact deposed is beyond pleadings. The another document Ex.DW1/2 (colly) is show cause notice as well as demolition order.
The question arises whether document Ex.DW1/2 (colly) had been served upon plaintiff or not. The plaintiff deposed in examinationinchief filed through affidavit that no notice U/Sec.343 of DMC Act or demolition order have been served upon him. The plaintiff has discharged his onus to prove that no notice was served upon him U/Sec.343 of DMC Act. The onus shifts upon the defendants to prove that notice was served upon the plaintiff before issuing notice U/Sec. 349 of DMC Act. The opportunity was given to him before passing the order U/Sec.343 of DMC Act. I have perused the file carefully but defendants have failed to prove that any notice was served upon the Suit No. 547/08 11/15 12 plaintiff before serving the order U/Sec.349 of DMC Act. The defendants further failed to prove that opportunity was given to the plaintiff being heard before passing any punitive order issuing notice U/Sec.349 of DMC Act. The defendants have placed on record the document Ex.DW1/2 (colly) which shows that same has been issued to Rajesh Kumar Shani. Plaintiff has placed on record document Mark B a writ which was filed by Rajni Shani which also proves the contention of the plaintiff that other persons were residing on the first floor and above the first floor with which the plaintiff has no concerned. Admittedly the appeal U/Sec.347(B) of DMC Act has already been dismissed by Ld. Appellate Tribunal of MCD.
So, I am of the view that no notice was ever served upon the plaintiff to explain the notice U/Sec.343 of DMC Act as well as before issuing notice U/Sec.349 of DMC Act. The principle of natural justice has not been followed by the defendants before taking punitive action against the plaintiff. The natural justice requires that every person should be heard before passing any order effecting his rights. An opportunity should be given to the person whose rights are being under consideration by the authority. In view of the observations Suit No. 547/08 12/15 13 above this issue is decided in favour of plaintiff and against the defendants.
ISSUE NO. 2
Whether the present suit is barred in view of Sec.477/478 of the DMC Act, as alleged? OPD.
The onus to prove this issue was on defendants/MCD. As per defendants the present suit is barred U/Sec.477/478 of MCD Act. As per the provision of Sec.478(3) of MCD Act an injunction suit can be filed where the plaintiff was apprehension that the purpose of giving notice will be defeat the purpose to file the suit. The plaintiff has filed the present suit for permanent injunction. The relief sought by the plaintiff was of urgent nature. I am of the considered view that the provisions of Sec.478(1) of MCD Act, shall not apply here in the present suit. This issue is decided accordingly. ISSUE NO. 3
Whether the plaint does not disclose any cause of action, as alleged? OPD.
Suit No. 547/08 13/15 14 The onus to prove this issue is on the defendants. The defendants have issued the notice Ex.PW1/7 to the plaintiff U/Sec.349 of the MDC Act and called upon him to vacate the premises. The plaintiff has alleged that the order has been served upon him without following the principle of natural justice and no notice was ever served upon him before serving the alleged notice. I am of the view that there is cause of action to file the present suit. The issue no. 3 is decided in favour of the plaintiff and against the defendants. RELIEF In view of my abovesaid discussion, the plaintiff is entitled for the relief claimed. Therefore, the defendants are hereby restraining from implementing the impugned order bearing no. D2071/EE(B) dated 18.07.07 in respect of shop no. 6 on the ground floor of property no. 2/102C, Geeta Colony, Delhi92 without complying with the statutory provisions laid down by Sec.343 of DMC Act. Suit is decreed with cost. Decree sheet be prepared accordingly. Suit No. 547/08 14/15 15
File be consigned to Record Room.
(Announced in open Court (JAGDISH KUMAR)
today i.e 27.05.11) JSCC/ASCJ/GJ(East)
KKD COURT
Suit No. 547/08 15/15
16
Suit No. 547/08
27.05.11
Present: Counsel for plaintiff.
Counsel for defendants.
Arguments heard on behalf of plaintiff also.
Put up at 4.00 p.m. for order.
(Jagdish Kumar)
JSCC/ASCJ/GJ(East)
KKD COURTS/27.05.11
At 4.00 p.m.
Present: None.
Vide separate judgment, the suit of the plaintiff is decreed for perpetual injunction in favour of plaintiff and against the defendants, hereby restraining the defendants from implementing the impugned order bearing no. D2071/EE(B) dated 18.07.07 in respect of shop no. 6 on the ground floor of property no. 2/102C, Geeta Colony, Delhi92 without complying with the statutory provisions laid down by Sec.343 of DMC Act. Suit is decreed with cost. Decree sheet be prepared accordingly.
File be consigned to Record Room.
(Jagdish Kumar) JSCC/ASCJ/GJ(East) KKD COURTS/27.05.11 Suit No. 547/08 16/15