Delhi District Court
Smt. Shashi Chopra vs North Delhi Municipal Corporation on 9 February, 2015
In the Court of Ms. Shivali Sharma : Additional Senior Civil Judge of
Central District at Tis Hazari Courts, Delhi
CS No. 481/2014
In the matter of:
Smt. Shashi Chopra
......Plaintiff
V E R S U S
North Delhi Municipal Corporation
........Defendant
ORDER
1. Vide this order, I shall dispose of the interim injunction application under Order 39 Rules 1 & 2 CPC filed by the plaintiff along with the plaint.
2. The case of the plaintiff is that plaintiff is the proprietor of M/s. Jai Dayal Mal Chopra & Co. and is engaged in the trading of waste paper. Plaintiff is occupying the ground floor measuring 1000 square feet of property bearing no. Plot no. 35North, 583032 (earner known as 5728), Basti Harphool Singh, Sadar Thana Road, Sadar Bazar, Delhi110006 (hereinafter referred to as 'the suit property') as a tenant. The entire building i.e. 35North including the suit property is well built and is safe and secured and does not CS No. 481/14 Smt. Shashi Chopra v. North DMC Page 1 of 12 suffer from any imminent danger of getting collapsed. The entire buildings on Sadar Thana Road are almost 100 years old and except minor repairs no major repairs are required in any building.
3. The defendant/North DMC had deliberately, intentionally and due to oblique motives issued an order dated 17.10.2014 under Section 348 of DMC Act bearing no. D34/EE/B/SPZ/14 and under Section 349 of DMC Act dated 17.10.2014 bearing no. D765/AE/B/SPZ/14 mentioning therein that the building was in dilapidated condition and major and minor cracks have developed in the wall on each floor as such the building was structurally unsafe and posed a risk to the safety of the occupants of the building as well as the adjoining buildings.
4. Before issuing the orders under Section 348/349 of DMC Act, the defendant did not carry out any inspection nor any report was prepared in order to form the opinion that building is structurally unsafe for occupation. No physical inspection of the property was made either by the officials of North DMC or any Structural Engineer. The impugned orders have been passed at the behest of the landlord. The said orders also do not contain the reasons for declaring the building dangerous. No description of major and minor cracks has been mentioned in the impugned order. It is simply stated that the building is beyond repairs, however no reason for the same has been mentioned in the orders for the same.
CS No. 481/14 Smt. Shashi Chopra v. North DMC Page 2 of 125. Moreover, no show cause notice has been issued to the plaintiffs before passing of the impugned orders and as such they have not been given an opportunity of being heard. Thus, the impugned order is illegal, void and contrary to law and is liable to be struck down.
6. On 06.11.2014 a representation was also made by the plaintiffs with the office of the defendants wherein it was specifically mentioned that the building is structurally safe and sound and it was highlighted that no inspection of the suit property either by any JE, AE or any other structural engineer of the defendant has ever been carried out before branding the building including the suit property as unsafe. However, it was of no effect.
7. On 12.11.2014, the officials of the defendant came to property no. 35North and started demolishing terrace of the building but due to resistance from the plaintiffs and other occupants of the building, the officials could not demolish the building including the suit property and had to retreat. Plaintiffs apprehend further action in this regard by the officials of North DMC on the basis of the impugned orders. Hence, the present suit has been filed seeking a declaration in favour of the plaintiffs declaring the orders under Section 348 & 349 of DMC Act both dated 17.10.2014 as illegal, null, void and contrary to law and also declaring that the building is structurally safe and sound. An injunction is sought restraining the defendant from demolishing the suit property.
CS No. 481/14 Smt. Shashi Chopra v. North DMC Page 3 of 128. In the interim application, an interim injunction is sought against demolition of the suit property and also staying the operation of the impugned orders till the disposal of the suit.
9. In support of his case, plaintiffs have relied upon decision of our own High Court in Rajendra Singh Yadav v. MCD 2002 (61) DRJ 10 wherein, in similar circumstances Hon'ble High Court had directed a fresh inspection of the property by Zonal Engineer (Building), Dangerous Building Cell of the concerned area to assess the status of the building concerned and thereafter to proceed with the matter in accordance with law in terms of Section 348 of the DMC Act.
10. Written statement was filed on behalf of North DMC/defendant wherein the suit has been objected to being barred by the provisions of Section 477/478 of the DMC Act. On merits, the contentions raised in the plaint have been denied. It is stated that the suit property is in a ruinous condition and the said fact is duly established on the basis of a survey report dated 08.07.2014 as conducted by the Executive Engineer (Projects) on the basis of Office Order no. 499/SE/SPZ/2014 dated 30.06.2014 and 417/DC/SPZ/14 dated 04.07.2014. In the said survey, all the properties pertaining to Ward no. 85 were surveyed on 05, 06 and 07th July, 2014 and a list of the properties which were found in dangerous/ruinous conditions was prepared. The suit property finds mention in the said survey report at Sr. No. 13. The said survey CS No. 481/14 Smt. Shashi Chopra v. North DMC Page 4 of 12 report was prepared and sent to the concerned DC, SPZ; SE, SPZ and to EE (B), SPZ as per Delhi Municipal Corporation Act, 1957. Thereafter the suit property was inspected by JE (B) on 16.10.2014 and the photographs were also taken which prima facie establishes that the order dated 17.10.2014 is just, appropriate and as per law.
11. The action of the defendant in passing the impugned order is an independent action being a statutory authority empowered to initiate such action without being influenced by any dispute between the plaintiffs and the landlord over the suit property. A complaint was received by the officials of MCD regarding the dilapidated condition of the suit property which was duly supported with a report of a MCD approved Structural Engineer. The said report of Structural Engineer was also considered before passing the impugned orders. On the other hand, the plaintiffs have not filed any report so as to suit their case from any such competent and duly qualified engineer. With these contentions the case of the plaintiff is controverted and it is stated that impugned orders are just and in accordance with law.
12. Ld. counsel for the defendant has relied upon the following citations in support of their case :
i. MCD v. Daulat Ram ILR 1971 II 711 wherein it has been held that the question whether the premises in a particular case were in ruinous condition or not was pre eminently for the municipal CS No. 481/14 Smt. Shashi Chopra v. North DMC Page 5 of 12 engineer to consider as they had the expert knowledge as well as the impartial attitude of mind necessary to form the opinion whether the premises should be demolished in public interest. When administrative authority has formed an opinion on a technical question, the Court should be reluctant to be persuaded that the opinion is not soundly based.
ii. MCD v. Ramesh Chander 1979 (2) ILR Delhi 499 wherein duty qua negligence for inspecting the buildings and taking action to avoid imminent danger to the building has been fixed upon MCD in similarly circumstances where a building collapsed killing one person apart from other loss.
13. Arguments on the interim application have heard and record has been carefully perused. The rival citations relied upon by both the parties have also been perused.
14. It is a settled principle of law that before granting an interim injunction in favour of the plaintiff the Court has to satisfy itself that a prima facie case is made out in favour of the plaintiff, balance of convenience lies in favour of the plaintiff and he is likely to suffer an irreparable loss in case the injunction is not granted in his favour.
15. Before proceeding further, it would be appropriate to go through the Section 348 and 349 of DMC Act. Section 348 and 349 of the Act reads as under :
CS No. 481/14 Smt. Shashi Chopra v. North DMC Page 6 of 12348. Removal of dangerous buildings (1) If it appears to the Commissioner at any time that any building is in a ruinous condition, or likely to fall, or in any way dangerous to any person occupying, resorting to or passing by such building or any other building or place in the neighbourhood of such building, the Commissioner may, by order in writing, require the owner or occupier of such building to demolish, secure or repair such building or do one or more of such things within such period as may be specified in the order, so as to prevent all cause of danger therefrom.
(2) The Commissioner may also, it he thinks fit, require such owner or occupier by the said order either forthwith or before proceeding to demolish, secure or repair the building, to set up a proper and sufficient hoard or fence for the protection of passersby and other persons, with a convenient platform and handrail wherever practicable to serve as a footway for passengers outside of such board or fence.
(3) If it appears to the Commissioner that danger from a building which is in a ruinous condition or likely to fall is imminent, he may, before making the order aforesaid, fence off, demolish, secure or repair the said building or take such steps as may be necessary to prevent the danger.
(4) If the owner or occupier of the building does not comply with the order within the period specified therein, the Commissioner shall take such steps in relation to the building as to prevent all cause of danger there from.
(5) All expenses incurred by the Commissioner in relation to any building under this section shall be recoverable from the owner or occupier thereof as an arrear of tax under this Act.
CS No. 481/14 Smt. Shashi Chopra v. North DMC Page 7 of 12349. Power to order building to be vacated in certain circumstances (1) The Commissioner may by order in writing direct that any building which in his opinion is in 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 therefor. (2) If any person fails to vacate the building in pursuance of such order the Commissioner may direct any police officer to remove such person from the building and the police officer shall comply with such direction accordingly.
(3) The Commissioner shall, on the application of any person who has vacated, or been removed from any building in pursuance of an order made by him, reinstate such person in the building on the expiry of the period for which the order has been in force according as the circumstances prevailing at that time permit."
16. Perusal of above said provisions shows that when it appears to the Commissioner that any building is in ruinous condition or likelihood to fall then Commissioner may, by order in writing, require the owner/occupier to demolish, secure or repair such building. Further, if it appears to the Commissioner that there is danger from a building which is in a ruinous condition then he may demolish, secure or repair the said building or take such steps as may be necessary to prevent the danger. Hence, it is crystal clear that the power has been vested upon the Commissioner to come to the conclusion that whether building is in dangerous condition or CS No. 481/14 Smt. Shashi Chopra v. North DMC Page 8 of 12 not. Commissioner has also power under Section 349 of DMC Act that if, in the opinion of the Commissioner, building is in dangerous condition, the same can be vacated forthwith.
17. The main contention of the plaintiff in the present case is that the impugned orders under Section 348 and 349 of DMC Act dated 17.10.2014 have been issued by the defendant in connivance with the landlord of the plaintiff. It has been alleged and argued during the course of arguments that the report of Structural Engineer being relied upon by North DMC to declare the suit property as dangerous and unsafe has been obtained by landlord from the concerned person and filed before North DMC along with his complaint. The said fact is not disputed on behalf of North DMC and it has been categorically stated during the course of arguments that North DMC does not have any Structural Engineer on its rolls and it only approves the Structural Engineer. In case a report of structural engineer has to be obtained, it is obtained through a Structural Engineer approved by North DMC. In the instant case, such report on the structural stability of the suit property has been obtained by owner/landlord of the suit property from an MCD approved structural engineer and the same has been filed before North DMC along with a complaint. It has been admitted on behalf of North DMC that the said report of structural engineer had also been relied upon while proceedings against the building under Section 348/349 of DMC Act.
CS No. 481/14 Smt. Shashi Chopra v. North DMC Page 9 of 1218. However, the allegations regarding issuance of impugned notices by North DMC at the instance of owner/landlord/complainant have been vehemently denied and it is argued that the said contentions are even otherwise against the record as the procedure regarding surveying the properties qua their conditions had started way back on 30.06.2014 when a specific office order was issued directing survey of properties pertaining to Ward no. 85. After the survey, as many as 13 properties including the suit property was recognized as being dangerous vide report dated 08.07.2014. The report of the structural engineer was only filed in the month of October, 2014 and accordingly it cannot be said that the action has been initiated at the instance of the owner/landlord. I find merit in this contention of ld. counsel for North DMC.
19. Perusal of the impugned orders clearly shows that specific reasons for declaring the suit property as dangerous have been mentioned therein. The report of the structural engineer dated 15.10.2014 relied upon by North DMC also clearly show the reasons for which the building has been declared to be beyond repairs and structurally unsafe. I have also perused the photographs placed on record by both the parties. The photographs filed by North DMC clearly show see through cracks on the walls of the suit property. It has not been disputed on behalf of the plaintiff that these photographs do not pertain to the suit property.
CS No. 481/14 Smt. Shashi Chopra v. North DMC Page 10 of 1220. One report has also been filed on behalf of the plaintiffs in support of their case that the building is safe. Perusal of the said report dated 13.11.2014 clearly shows that said report has not been prepared by any Structural Engineer. It is a report of some consultants and no qualification of the person preparing the report has been mentioned therein. Prima facie, the report dated 15.10.2014, being relied upon by the defendants, is a more detailed report categorically stating reasons for which the building has been opined to be structurally unsafe. The said report has been prepared by a MCD approved Structural Engineer and appears to be more reliable prima facie. Admittedly, the building in question is also more than 100 years old as mentioned in paragraph no. 5 of the plaint.
21. In view of the reasons given above, prima facie, it appears that the orders issued by North DMC which have been impugned herein have been passed after following due process of law and due application of mind by the officials of North DMC. Considering the fact that the ultimate responsibility of the safety of the citizens in case of dangerous building lies with North DMC, it cannot be restrained from taking action as per law. Thus, prima facie there appears to be no illegality in the impugned orders.
22. In the backdrop of the above facts and circumstances, I am of the view that plaintiffs have failed to establish a prima facie case in their favour. For the same reason, balance of convenience also CS No. 481/14 Smt. Shashi Chopra v. North DMC Page 11 of 12 cannot lies in their favour. As regards irreparable loss, the balance is again tilted against the plaintiff as in case the North DMC is restrained and any untoward incident takes place qua the building in question, the responsibility with lie with North DMC.
23. For the above reasons, I do not find any merit in the application under Order 39 Rules 1 & 2 CPC. The same is, accordingly, dismissed.
Announced in the Open Court on 09.02.2015 (Shivali Sharma) Additional Senior Civil Judge Central District: Tis Hazari Courts: Delhi CS No. 481/14 Smt. Shashi Chopra v. North DMC Page 12 of 12