Delhi High Court
Ashok Builders & Promoters vs Municipal Corporation Of Delhi on 30 January, 2002
Equivalent citations: 2002IIIAD(DELHI)891, 97(2002)DLT10, 2002(63)DRJ665
Author: J.D. Kapoor
Bench: J.D. Kapoor
JUDGMENT J.D. Kapoor, J.
1. The short controversy involved for determination is whether the jurisdiction of the civil court is barred by Section 347E of the Delhi Municipal Corporation Act, 1957 (in short the 'Act') even if the plea of the plaintiff that he is entitled to protection under the Amnesty Scheme under the relaxed Building Bye-laws (in short "BBL') is accepted.
2. Availing the benefit of the scheme, the plaintiff applied on 29.4.1999 requesting for regularizing the excess coverage and deviations as per relaxed BBL and deposited an amount of Rs. 3,71,430/- towards regularization fee and levy etc. on self assessment.
3. Excess coverage and non- compoundable deviations have been detailed in para 12 of the written statement. Some of these are so huge that these need to be reproduced and are as under:-
(b) Four-storeyed building with basement has been constructed against permissible 2 1/2 storeyed building with basement. Moreover, mezzanine and barsati floors have been constructed as a regular floor, which is not allowed.
(d) The basement has been converted into a regular market by providing various shops/office by way of partition against permissible and sanctioned use for domestic storage.
(e) Ground floor has also been converted into a regular market by providing various shops/offices against permissible and sanctioned use for residential purposes.
4. Admittedly, defendant-MCD has not regularised unauthorised construction or non-compoundable deviations and rejected the application of the plaintiff on account of the deviations not falling within the purview of the regulation policy and show cause notices issued under Sections 343/344 of the Act followed by demolition order.
5. In the civil suit No. 201/90 filed by the plaintiff before the subordinate civil court, the plaintiff has not only denied having made any unauthorised construction and deviations against the sanctioned building plan it has also denied receipt of show cause notice under Sections 343/344 of the DMC Act. In order to obviate the controversy as to the non-receipt of notice, the defendant filed a fresh show cause notice in the court and prayed for service of the same on the plaintiff before the Court itself. The Civil Court adjourned the said suit to 19.11.1990 for service of fresh show cause notice on the plaintiff. The plaintiff avoided to receive the notice on various occasions i.e. on 23.11.1990, 28.11.1990 and 30.1.1990, on one pretext or the other and ultimately on 30.11.1990, the Court rejected the request of the plaintiff for grant of further adjournment and vacated the stay orders dated 12.4.1990 and 20.4.1990.
6. In view of the aforesaid conspectus of facts, Mr. R.D. Jolly, learned counsel for the defendant has contended that Section 347E of the Act bars the jurisdiction of the court to 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.
7. Sections 343 and 347B provide as under:-
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 367or in contravention of any condition subject to which such sanction has been accorded or in contravention or any of the provisions of this Act or bye-laws made there under, 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 therefore 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 an 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.
xxxxx 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-our plan under Section 313;
(b). an order directing the alteration or demolition or 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 Section338;
(i) an order requiring the rounding of, 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;
(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) An appeal under this Section shall be filed within thirty days from the date of the order or notice appealed against:
Provided that the Appellate Tribunal may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing it within that period.
(3) An appeal to the Appellate Tribunal shall be made in such form and shall be accompanied by a copy of the order or notice appealed against and by such feeds as may be prescribed by rules.
8. Section 347E reads like this:-
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.
(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."
9. Bare perusal of these provisions show that any person aggrieved by any of the orders made or notice issued under Sections 343/344 or 347E of this Act may prefer an appeal against such an order or notice before the appellate tribunal.
10. Mr. A.S. Chandhiok, learned senior counsel for the plaintiff has contended vehemently that none of the actions taken so far by the defendant falls within the ambit of Section 347B as on their own showing, no demolition order has been placed or record. So much so even the the date or who passed the order is not specified. Mr. Chandhiok even went to the extent of contending the defendant-MCD is not vested with jurisdiction to even issue notice under Section 347B after accepting the application for regularizing the construction under the Amnesty Scheme and after having received compounding fee from the plaintiff and as per their own resolution No. 557 and 22.3.1999, no demolition or any other action could have been passed against the building in question.
11. Mr. Chandhiok has further contended that there is no averment in the written statement as to when did the application which was admittedly filed by the plaintiff on 29.4.1999 was rejected or order was passed in respect of that application and even in the written statement, there is not even a reference that over Rs. 4 lakhs received from the plaintiff were offered to be refunded prior to taking the impugned action or that they are even ready to refund. According to Mr. Chandhiok once having accepted the amount under the scheme or an invitation made in public, the defendant is estopped from declaring any portion of the property as unauthorised or having not been regularised under the Amnesty Scheme.
12. Without prejudice to the above, in the alternative, Mr. Chandhiok has contended that the averments of the alleged notices dated 11.5.2000 & 13.6.2000 must be outrightly rejected inter alia on the following grounds:-
a) The defendant admits in the written statement that as per record of the defendant-MCD, plaintiff is the owner of the property;
b) Notice is not even addressed to the plaintiff;
c) Notice is not against any unauthorised construction. Notice under Section 344 on their own showing is for stopping further construction whereas the case of the plaintiff is that no construction has been carried out after 1990;
d) The alleged notice claiming deviation on the ground floor, first floor and second floor under construction showing as if the property is constructed in 2000 is on the face of it malafide;
e) Notice without even specifying the area notwithstanding the regularisation plan is per se bad in law and suffers from element of vagueness.
13. Mr. Chandhiok urged that since actions of the defendant did not fall within the ambit of Section 347B, no appeal lies to the appellate tribunal against the intended or proposed action by MCD under Section 343/344/347 of the Act as vide notice dated 11.5.2000, plaintiff was only required to stop the construction.
14. Facts as culled out by Mr. Chandhiok in support of his contentions need to be recapitulated.
15. The building in question was constructed originally in 1961 comprising the basement, ground floor and first floor and the said basement was bring used for commercial use. MCD assessed it to commercial use for house tax for the year 1962-63 onwards. In 1962-63 master plan came into operation. In 1988 a fresh sanction was granted by the Corporation for change of the existing structure after purchase of the property by the plaintiff on 21st September, 1988. On 11.12.88 Form D was issued by the Corporation in favor of the plaintiff. In 1990 at the instance of some competitors of the plaintiff, the defendant sought to demolish the property and sealed the same when the suit was filed on 11th April, 1990 being suit No. 201/90 before the learned Subordinate Judge and a notice was issued to the defendant-corporation for 12th April, 1999 and on 12th April, 1990 an interim order was passed in favor of the plaintiff restraining the defendant from sealing or demolishing the property.
16. Again an interim order was passed by the learned Subordinate Judge on 30th November, 1990. An appeal was preferred before this Court being CM. No. 346/89. The plaintiff filed a Civil Revision before High Court and the same was registered as C.R. No. 689/91 on 9th October, 1991 and an interim order was passed by the High Court restraining the defendant from demolishing and sealing and at the same time restrained the plaintiff from carrying out further construction. The revision petition was admitted and interim order was confirmed on 4th January, 1993. Through CWP No. 438/98 a Public Interest Litigation was filed in which an affidavit was filed that the plaintiff had applied for regularisation of the unauthorised construction under the Amnesty Scheme which the defendant had issued on 6th December, 1998 and the same was pending on 22nd March, 1999, the Municipal Corporation passed resolution No. 557.
17. On 26th April, 99 an application was filed by the plaintiff under the new relaxed building bye-laws for compounding the alleged unauthorised construction. The Corporation assessed the compounding fee at Rs. 3,71,430/- after the inspection of the property. The Corporation called upon the plaintiff to deposit a further sum of Rs. 83103/- as compounding charges and imposed a pre condition under the scheme that litigation, if any, pending with respect to property should be withdrawn. Consequently, the plaintiff filed CM.No. 244/2000 on 19.1.2000 seeking relief to withdraw the Revision petition with liberty to come back if necessity arose.
18. On 17th April, 2000, a notice was issued by the Corporation under Section 345A. On 24th April, 2000 the sealing order was passed and was executed on 25th April, 2000. It was challenged before the appellate tribunal. However, on 5th May, 2000 this Court directed the MCD to de-seal the property. On 11th May, 2000, a notice was again issued by the Corporation and on 13th June, 2000 another notice was issued by the corporation. These notices are as under:-
Notice dated 11.5.2000 Municipal Corporation of Delhi show cause notice under Section 344(1) AND 346 of Delhi Municipal Corporation Act, 1957 No. 207/B/OC2S2/2000 Date: 11.5.2000 10307 Resident B-23, Greater Kailash-I New Delhi ... as specified under Section 332 of Delhi Municipal Corporation Act, 1957 without obtaining permission G.K.I situated property No.B-23 have completed/started construction work.
I, Vijay Kadiyan AE(B) appointed and authorised by Delhi Municipal Corporation under Section 461, under Section 344(1) will stop construction immediately. You are informed that if the construction work is not stopped on receipt of this order then action will be taken against you under the above mention section without giving you any further information under Section 344(2) and 344(4). Deviation against sanctioned building plans, excess coverage at basement, GF, FF, SF & TF under construction and servant room at FF infringement in set back portion at each floor.
You are informed that for reasons stated above beginning/full complete construction work in unauthorised and you are directed that within 3 days after receiving the notice time to visit the office of the undersigned and show-cause why order be not served to demolish above mentioned construction carried out and construction carried out after issuance of notice.
If you do not appear on the above mentioned date or on date which the matter is adjourned to it will be understood that you do not have to say anything and the matter will be immediately decided.
To Shri O/B/O B-23, G.K.I New Delhi"
Name Sd/-
Vijay Kadiayan, AE(B) Notice dated 13.6.2000 MUNICIPAL CORPORATION OF DELHI OFFICE OF THE DEPUTY COMMISSIONER SOUTH ZONE : GREEN PARK : NEW DELHI No. 68/Regd/DC/Bldg./SZ/99 Dated: 13.6.2000 SHOW CAUSE NOTICE UNDER SECTION 145-A OF THE DMC ACT, 1957 (66 OF 1957) WHEREAS it has been brought to my notice that under mentioned unauthorised construction is being carried on at the instance of Sh.Onwer/Builder in Property No.B-23, Greater Kailash-I, New Delhi.
Details of unauthorised construction:
Deviation against SBP in shape of excess coverage at basement, GF, FF, SF, TF, UZc of Mumty & servant room at T.F., infringement in set back at each floor.
AND WHEREAS, upon carefully considering the reports before me and having gone through the file and all the other relevant papers, I am satisfied that the is apprehension of the building being disposed off/occupied or misused and further unauthorised construction being carried out and so for the purposes of carrying out the provisions of this Act and for preventing any dispute as to the nature and extent of unauthorised construction erection or occupancy, it would be essential to proceed Under Section 345A of the DMC Act against the aforesaid premises or the unauthorised work carried out/being carried out therein.
Now, therefore, I Vijay Dev, Deputy Commissioner, MCD, South Zone in exercise of the powers vested in me under Section 345A read with Section 491 of the DMC Act and the rules made there under, hereby call upon by this show cause notice, owner/builder to show cause within three days from the receipt of this notice as to why the aforesaid premises be not sealed.
Issued under my hand and seal on the 24th day of May, 2000.
Sd/- (Vijay Dev) Deputy Commissioner, South Zone"
19. It is contended by Mr. R.D. Jolly, learned counsel for the defendant-MCD that after declaration of Amnesty Scheme under the relaxed BBL for regularizing the excess coverage permissible within law, the owner/builder moved an application dated 29.4.99 requesting therein to regularise the excess coverage as per the relaxed BBL and was asked to comply with the instructions as contained in the notice No. 969/UPC/EE (B)/SZ/99 dated 24.5.1999. The requisite formalities were completed in part and the matter was further processed as per the guidelines and as per the available record pertaining to the property in question maintained by the MCD, the plaintiff has changed the user of the entire building from residential to commercial besides having raised huge unauthorised constructions against which the revocation proceedings Under Section 338 of the DMC Act, 1957 have also been contemplated and besides this, the plaintiff has carried out various internal deviation in violation of the building bye-laws at sanctioned floors/revoked floors which cannot be regularized. Moreover, as per the conditions for consideration of the applications for regularisation the non-compoundable deviations are required to be first demolished and only thereafter, the application for regularisation of the unauthorised constructions can be considered.
20. I have accorded careful and cautious consideration to the rival contentions and scanned the relevant provisions and Amnesty Scheme. By no stretch of imagination the request of the plaintiff comes within the ambit or purview of the regularisation policy under the Amnesty Scheme as it is not blanket regularization of unauthorised constructions, user or contravention of building bye-laws. No scheme of the kind has precedence over the bye-laws. Bye-laws have statutory force. amnesty may be for condoning delay or any other lapse. Merely because a person makes application under such a scheme and deposits the penalty or compounding fees based on self-assessment, does not acquire a right to protect unauthorized construction or non-compoundable deviations or change of permissible user. If such a protection is allowed, the applicant will have the right to change the entire complexion of the structure and raise construction at his will and be Master of the building bye-laws. The persons seeking protection or benefit of the Amnesty Scheme do so at their own risk and peril. In case, their applications under the Amnesty Scheme are not found to be in order or not in accordance with the Scheme, public notice or inviting the application, the authorities can not be held liable or responsible for retaining the money deposited with the applications.
21. On the one hand, the plaintiff is claiming protection under the Amnesty Scheme and insisting for compounding the non-compoundable deviation in the premises while on the other hand, the defendant has found that under the garb of Amnesty Scheme the plaintiff has carried out huge unauthorised constructions and in violation of building bye-laws not only at sanctioned floors but also has constructed unauthorised floors and changed the use of the building from residential to commercial which is not at all regularisable. The demolition of the non-compoundable deviations in a condition precedent to the consideration of the application for regularisation of the compoundable deviations.
22. However, in view of the specific provision of Section 373E that no court shall entertain any suit, application or other proceedings in respect of any order or notice appealable under Section 343 or Section 347B, the plaintiff has no other option than to approach the MCD Tribunal.
23. Merely because the application for regularisation was made Along with the fees does not entitle him to seek the remedy by way of a civil suit for protecting the non-compoundable deviations or unauthorised constructions. However, at the same time, the defendant shall bear in mind that the plaintiff shall have to be given protection under the Amnesty Scheme which is permissible under bye-laws and the rules and may compound the compoundable deviations as per rules or as per Amnesty Scheme.
24. As far as the allegations of converting residential premises into commercial premises is concerned, an independent action may be initiated by the defendant which shall be independent of the compounding of the compoundable deviations as permissible under the Amnesty Scheme or the building bye-laws.
25. Since the plaintiff has denied having received show cause notice of either demolition or sealing though his conduct shows that he has been not only avoiding but evading the service of such notices even in the court, yet this defense may be taken by the plaintiff before the MCD Tribunal. The defendant shall not take any action pursuant to those notices for one month from today so as to allow the plaintiff to seek an appropriate remedy before the appropriate forum and also to ensure the service of such notices by the defendant if not served. It is hoped that the plaintiff will not adopt the same attitude as he did in the subordinate civil court. If he does so he may do it at his own peril.
26. With these observations, the ex parte injunction order is hereby vacated resulting in the dismissal of the application. Since jurisdiction of the civil court is barred under Section 347E of the Act to entertain any suit, application or other proceedings in respect of any order or notice under Sections 343 or 347B of the Act, the suit is also dismissed on the ground of non-jurisdiction.
27. With this order suit and all applications stand disposed of.