Delhi District Court
Anjana Nautiyal vs Municipal Corporation Of Delhi on 8 October, 2024
IN THE COURT OF MS. RICHA GUSAIN SOLANKI,
DISTRICT JUDGE - 02, SOUTH WEST DISTRICT, DWARKA
COURTS, DELHI
RCA CIVIL DJ ADJ No. 73/2023
CNR No. DLSW010057652023
IN THE MATTER OF:
ANJANA NAUTIYAL
W/o Shri Praveen Nautiyal
R/o Flat No.4, Plot No.54A,55,56, 3rd floor
Raja Puri, Uttam Nagar, New Delhi-110059
... Appellant
vs
1. MUNICIPAL CORPORATION OF DELHI
through Deputy Commissioner, Najafgarh Zone
Main Zonal Building, Room No.102-103,
1st floor, Dhansa Stand, Najafgarh,
New Delhi -110043
2. Office of the Executive Engineer
(Building department)
Main Zonal Building, Room No.121-122,
1st floor, Dhansa Stand, Najafgarh,
New Delhi-110043
3. Nitin Grover S/o shri Yashpal Grover
R/o C-2A/82, Janakpuri, New Delhi-110058
4. Surender Kaushik S/o late Sh. Mohan Dutt Sharma
R/o Flat No.4, Plot No.7, Deen Apartment,
Sector-4, Dwarka, New Delhi-110075
.... Respondents
Date of institution of Appeal 07.06.2023
Date of order reserved: 11.09.2024
Date of pronouncement: 08.10.2024
RCA DJ ADJ 73/2023 Anjana Nautiyal vs MCD & Ors page 1/7
JUDGMENT
1. The challenge by means of this regular first appeal under Section 96 CPC is to the order of Ld Additional Senior Civil Judge, South-West, Dwarka Court, New Delhi dated 19.05.2023 whereby the Ld. Trial Court had rejected the plaint of the appellant/plaintiff. For the sake of avoiding any confusion, the parties will now be referred to their status before the Ld Trial Court.
2. The case of the plaintiff before the Ld. Trial Court was that she is the owner of built-up property bearing flat no. 3, Plot no. 54A, 55, 56, 3rd Floor, Raja Puri, Uttam Nagar, New Delhi (hereinafter referred to as "the suit property"). She stated that she had purchased the suit property from defendant no.3/Nitin Grover vide a registered sale deed on 18.10.2017 and defendant no.3 had assured that the suit property was free from all kinds of encumbrances, legal flaws, litigation, notices, attachment, etc. It is stated that defendant no. 2/Executive Engineer, MCD issued an unnamed notice under Section 349 of the DMC Act, which was pasted on the gate of suit property on the evening of 17.05.2023. It is stated that as per the said notice, the suit property was found to be in contravention of Section 346 of DMC Act and directions had been issued to vacate the suit property within 24 hours. It is stated that defendant no. 4/Surinder Kaushik was the erstwhile owner of the suit property when the demolition and sealing order of the suit property were passed in the year 2011-12. It was the case of the plaintiff that defendant no.1/MCD and defendant no.2 had acted in complete contravention of law by issuing such unnamed notice. It was the case of the plaintiff that she did not know that the suit property RCA DJ ADJ 73/2023 Anjana Nautiyal vs MCD & Ors page 2/7 had been booked under Section 344 and 343 of the DMC Act or that show cause notice had been issued to the earlier owner/occupier/builder and a demolition order had been passed on 01.11.2011. Hence, the suit had been filed seeking a declaration that the notice issued under Section 349 of the DMC Act was null and void, for permanent injunction restraining defendant nos. 1 and 2 from executing/ continuing in furtherance of the notice under Section 349 DMC Act and for permanent restraining the defendants from taking action for vacation of the suit property, amongst other reliefs.
3. Vide the impugned order, the Ld Trial Court rejected the plaint holding that the suit of the plaintiff was not maintainable under Section 41(h) of the Specific Relief Act since she had an equally efficacious remedy of filing an appeal before the Learned Appellate Tribunal, MCD against the notice under Section 349 DMC Act. It was held that under Section 347E of the DMC Act, the jurisdiction of civil court was barred.
4. Aggrieved by the said order, the plaintiff has filed the present appeal taking just one ground- that Section 347E DMC Act did not apply to the notice under Section 349 DMC Act.
5. Defendant nos. 1, 2 and 4 have filed written replies supporting the order passed by the Ld Trial Court whereas defendant no.3 has contested the appeal orally.
6. It would be profitable to reproduce the relevant sections of the DMC Act:
"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 347B and no such order or notice shall be called in question otherwise than by preferring an appeal under those sections.
RCA DJ ADJ 73/2023 Anjana Nautiyal vs MCD & Ors page 3/7 (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 347B, shall continue to be dealt with and disposed of by that court as if the said section had not been brought into force."
"Section 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).
(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. (3) Where an appeal is preferred under sub-section (2) against an order of demolition, the Appellate Tribunal may, subject to the provisions of sub-section (3) of section 347C, 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.
RCA DJ ADJ 73/2023 Anjana Nautiyal vs MCD & Ors page 4/7 (4) No court shall entertain any suit, application or other 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.
(5) Subject to an order made by the Administrator on appeal under section 347D, every order made by the Appellate Tribunal on appeal under this section, and subject to the orders of the Administrator and the Appellate Tribunal on appeal the order of demolition made by the Commissioner shall be final and conclusive.
(6) Where no appeal has been preferred against an order of demolition made by the Commissioner under sub-section (1) or where an order of demolition made by the Commissioner under that subsection 7 has been confirmed on appeal, whether with or without variation, by the Appellate Tribunal in a case where no appeal has been preferred against the order of the Appellate Tribunal, and by the Administrator in a case where an appeal has been preferred against the order of the Appellate Tribunal the person against whom the order has been made shall comply with the order within the period specified therein, or as the case may be, within the period, if any, fixed by the Appellate Tribunal or the Administrator] on appeal and on the failure of the person to comply with the order within such period, the Commissioner may himself cause the erection or the work to which the order relates to be demolished and the expenses of such demolition shall be recoverable from such person as an arrear of tax under this Act."
"Section 347B. Appeals against certain orders or notices issued under the Act (1) Any person aggrieved by any of the following orders made or notices issued under this Act, may prefer an appeal against such order or notice to the Appellate Tribunal, namely:--
(a) an order according or disallowing sanction to a lay-out plan under section 313;
(b) an order directing the alteration or demolition of any street under section 314;
(c) a notice under sub-section (1) of section 315;
(d) a notice under sub-section (2) of section 317;
(e) an order directing the disposal of things removed under Chapter XV or seized under section 334, or an order rejecting the claim of any person for the balance of the proceeds of sale of things so disposed of;
(f) an order sanctioning or refusing to sanction the erection of any building or the execution of any work under section 336;
(g) an order withholding sanction under the proviso to sub-section (1) of section 337;
(h) an order cancelling a sanction under section 338;
(i) an order requiring the rounding off, splaying or cutting off the height of a building intended to be erected, or for the acquisition of any portion of a site, under section 339;
(j) an order disallowing the erection of any building or the execution of any work under section 340;
RCA DJ ADJ 73/2023 Anjana Nautiyal vs MCD & Ors page 5/7
(k) an order requiring the stoppage of any erection or work under section 344;
(l) an order requiring the alteration of any building or work under section 345;
(m) an order directing the sealing of unauthorised constructions under section 345A;
(n) an order refusing to grant permission under sub-section (2) of section 346;
(o) an order granting or refusing permission under section 347;
(p) any such other order or notice relating to or arising out of planned development under the provisions of this Act as may be prescribed by rules.
(2)..."
7. Thus, it is apparent that a notice under Section 349 DMC Act is not appealable to the Appellate Tribunal, MCD.
8. Moreover, the case of the plaintiff was that she had not received any notice from the MCD prior to the notice under Section 349 of the Act as the notices had been issued to the erstwhile owner, before she had purchased the suit property.
9. If any property is found to be dangerous or non-compliant by the MCD, the department has the power to get the same demolished but before taking any such action, it must follow the mandatory provisions Of section 343 of DMC Act. The MCD must issue show cause notice under Section 343 and 344 DMC Act to the owner/occupier of that property. In other words, issuance of notice under Section 343 DMC Act was mandatory before issuing notice under Section 349 of the Act. Ld Counsel for the plaintiff has rightly relied on judgment in the case of RA Bhujwala vs MM Corp of Delhi (1996)3 RCR (Civ) 408.
10. The Ld Trial Court erred in concluding that, even if prior notices had been issued in the year 2011, before the plaintiff purchased the suit property, such grievances could only be brought before the Ld Appellate Tribunal, MCD. Section 9 of the Code of Civil Procedure stipulates that courts shall have RCA DJ ADJ 73/2023 Anjana Nautiyal vs MCD & Ors page 6/7 jurisdiction to try all suits of a civil nature except those expressly or impliedly barred. It is well settled that any statute that ousts the jurisdiction of civil courts must be strictly construed. In this case, I find that no such bar existed, and the Ld Trial Court misjudged in holding that the plaintiff's suit was barred by law and in rejecting the same.
11. Resultantly, the impugned order dated 19.05.2023 cannot be sustained in law and is hereby set aside.
12. The suit is remanded back to the Ld Trial Court for rehearing the plaintiff and further proceedings.
13. The plaintiff is directed to appear before Ld Additional Senior Civil Judge, South-West, Dwarka Courts, on 21.10.2024.
14. The interim order passed on 08.06.2023 shall remain operative till 21.10.2024.
15. The appeal is accordingly disposed off. Parties to bear their own costs.
16. Decree sheet be prepared.
17. File be consigned to record room and a certified copy of this order be sent to the Ld Trial Court forthwith.
18. Trial Court record be sent back. RICHA Digitally signed by RICHA GUSAIN GUSAIN SOLANKI SOLANKI Date: 2024.10.08 17:02:16 +0530 Pronounced in the open court (RICHA GUSAIN SOLANKI) on 08th October 2024 District Judge-02, South West Dwarka Courts Complex New Delhi RCA DJ ADJ 73/2023 Anjana Nautiyal vs MCD & Ors page 7/7