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Pawan Kumar Jain vs . Sdmc & Ors. on 20 December, 2018

Pawan Kumar Jain Vs. SDMC & Ors.


   IN THE COURT OF MS TYAGITA SINGH SENIOR CIVIL
        JUDGE­CUM­RENT CONTROLLER (SOUTH),
              SAKET COURTS, NEW DELHI


CS SCJ 416/18

CNR NO.: DLST03­000711­2018


IN THE MATTER OF:

SHRI PAWAN KUMAR JAIN
S/O LATE SH. PRAKASH CHAND JAIN
R/O A­3, GROUND FLOOR, BACK SIDE,
SOUTH EX. PART­II,
NEW DELHI­110049                            ....PLAINTIFF

                                   VERSUS

1. SOUTH DELHI MUNICIPAL CORPORATION
CIVIC CENTRE, MINTO ROAD,
NEW DELHI
THROUGH ITS COMMISSIONER

2. ASSISTANT ENGINEER (BUILDING)
SOUTH DELHI MUNICIPAL CORPORATION,
CENRAL ZONE,
LAJPAT NAGAR BUILDING­I,
NEW DELHI­110024




CS SCJ 416/18                                    Page 1 of 11
 Pawan Kumar Jain Vs. SDMC & Ors.


3. SMT. POONAM SHARMA
W/O SHRI SUNIL KUMAR SHARMA
R/O A­3, FIRST FLOOR,
SOUTH EX. PART­II,
NEW DELHI­110049

4. SHRI KAPIL DEV
S/O
R/O A­3, PART GROUND FLOOR (FRONT SIDE)
SECOND (FRONT SIDE) SOUTH EX. PART­II,
SECOND (FRONT SIDE) SOUTH EX. PART­II,
NEW DELHI­110049
                                       ....DEFENDANTS


DATE OF INSTITUTION                          :07.05.2018
DATE OF RESERVING                            :13.12.2018
DATE OF PRONOUNCEMENT                        :20.12.2018
DECISION                                     :PLAINT REJECTED

Advocates appearing in the case:

Sh. S.B. Singh, Ld. Counsel for plaintiff.
Ms. Promila Kapoor, Ld. Counsel for defendants no. 1 and 2/SDMC.
Sh. Mukul Gautam, Ld. Counsel for defendant no.3.
Sh. Rajiv Kumar, Ld. Counsel for defendant no.4.


                                   ORDER

1. Vide this order, I shall decide application of defendant no.3 U/o CS SCJ 416/18 Page 2 of 11 Pawan Kumar Jain Vs. SDMC & Ors.

VII Rule 11 CPC and application of plaintiff U/o XXXIX Rule 1 and 2 CPC.

2. Brief facts of the case necessary for disposal of both the applications, as mentioned in the plaint are as follows:

2.1. The plaintiff has stated that he is the owner and in possession of half portion of the ground floor (back side) and half portion of second floor (back side) with stair case going to the second floor i.e. terrace, toilet, store, bathroom and open area below with roof on second floor in free hold property bearing A­3, NDSE Part­II, New Delhi, as shown in red colour in the site plan annexed with the plaint (henceforth referred to as 'suit property').

2.2. That defendant no.1/SDMC had passed demolition orders and taken demolition action against third floor and fourth floor of the said property belonging to defendant no.4 but during demolition action, the defendant no.1 and 2 exceed its powers and demolished the partition wall/ boundary wall of plaintiff which was already existing on the second floor.

2.3. Plaintiff has alleged that defendants no. 1 and 2 had no right to CS SCJ 416/18 Page 3 of 11 Pawan Kumar Jain Vs. SDMC & Ors.

demolish the partition wall, due to which present suit has been filed. In the present suit, plaintiff has prayed for relief of permanent injunction for restraining defendants no.3 and 4 from encroaching upon or interfering in peaceful possession of plaintiff in second floor of property no. A­3, Back Side, South­Extension Parti­II, New Delhi, as shown in red colour in the Site Plan annexed with plaint. Plaintiff has further prayed for mandatory injunction for directing defendants no. 1 and 2 to repair/restore the damaged wall to its size, shape and position as it was before demolition, or in alternative, to allow the plaintiff to repair and fill up the punctured portions of wall and restore the wall to its original form. Plaintiff has also prayed for damages of Rs. 1,00,000/­ against defendants for damage caused to the boundary/ partition wall and for harassment of plaintiff.

3. In the written statement as well as application U/o VII Rule 11 CPC, defendant no.3 has taken objection that suit of plaintiff is barred by Section 347E of DMC Act as the plaintiff has sought relief against the demolition order passed by competent authority of MCD and Civil Court has no jurisdiction to entertain the suit against Competent authority of MCD, and proper forum for this purpose is Ld. Appellate Tribunal, MCD.

CS SCJ 416/18 Page 4 of 11

Pawan Kumar Jain Vs. SDMC & Ors.

4. Defendants no. 1 and 2/SDMC has filed status report alongwith coloured photographs, stating that the matter in respect of the same property was pending before Hon'ble High Court of Delhi and unauthorized construction in the shape of third floor and fourth floor in the suit property was demolished by MCD but the owner/occupier tried to raise unauthorized construction in the shape of brick wall of approximately 6 feet height, which was demolished on 23.042018 at the ongoing stage.

5. Copy of order dated 19.01.2018 of Hon'ble High Court in W.P. (C) 523/2018 titled "Sunil Sharma Vs. South Delhi Municipal Corporation" has been filed on record by defendants, vide which SDMC was directed to remove the debris from terrace of the second floor after it had taken demolition action against third floor and fourth floor of suit property.

6. Perusal of application U/o XXXIX Rule 1 and 2 CPC reveals that plaintiff has prayed for restraining defendants no.1 and 2 from demolishing the boundary wall/partition wall of second floor of property no. A­3, back side, South Extension Part­II, New Delhi. However, as per status report of SDMC dated 23.10.2018, the partition wall has already been demolished as it was an unauthorized CS SCJ 416/18 Page 5 of 11 Pawan Kumar Jain Vs. SDMC & Ors.

construction at the second floor. Therefore, relief claimed in application U/o XXXIX Rule 1 and 2 CPC has already become infructuous. Hence, application U/o XXXIX Rule 1 and 2 CPC stands dismissed as having become infructuous.

7. During arguments on application U/o VII Rule 11 CPC, Ld. Counsel for plaintiff argued that as per settlement between plaintiff and his brother Sh. Raj Kumar Jain in previous suit, it was agreed that partition wall shall be erected at the terrace of second floor. He showed the copies of statements dated 27.04.2005 of plaintiff and defendant Sh. Raj Kumar Jain, recorded in case titled 'Pawan Kumar Jain Vs. Raj Kumar Jain'. On the other hand, Ld. Counsel for defendants argued that the defendants are not bound by the settlement between plaintiff and his brother.

8. Copies of orders of Competent Authority of SDMC passed U/s 343 DMC Act have been perused. Status report and action taken report of SDMC have also been perused. Keeping in view the status report and action taken report of SDMC as well as orders competent authority of SDMC, it is clear that demolition action has been taken against the suit property by defendants no. 1 and 2/SDMC, after following due process of law after passing of demolition order by the CS SCJ 416/18 Page 6 of 11 Pawan Kumar Jain Vs. SDMC & Ors.

competent authority. If plaintiff has any grievance against the demolition orders of competent authority, proper forum for this purpose is Ld. Appellate Tribunal of MCD and not the Civil Court.

9. Section 343 (4) and Section 347(E) of DMC Act are being reproduced herein for ready reference:

"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 CS SCJ 416/18 Page 7 of 11 Pawan Kumar Jain Vs. SDMC & Ors.

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 sub­section(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)"XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX"

CS SCJ 416/18 Page 8 of 11

Pawan Kumar Jain Vs. SDMC & Ors.

(4) [No court] shall entertain any suit, application or 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) "XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX"

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 CS SCJ 416/18 Page 9 of 11 Pawan Kumar Jain Vs. SDMC & Ors.

appeal under those sections.

10. Bare perusal of the above stated Sections reveals that specific bar has been imposed by the Delhi Municipal Corporation Act, 1957 upon suits for permanent injunction against demolition orders of the competent authority of MCD. Therefore, this Court has no jurisdiction to entertain this suit against orders of demolition passed by competent authority.

11. I rely upon judgment of the Hon'ble High Court of Delhi in RSA No. 113/18 in case titled 'Sheetal Chauhan v. South Delhi Municipal Corporation & Anr.', in support of my findings. In the said judgment, the Hon'ble High Court of Delhi has upheld the order of the Ld. Trial Court dated 01.08.2017, vide which the suit of the plaintiff/appellant Sheetal Chauhan was dismissed as not maintainable under Section 347(E) of DMC Act, 1957 read with Section 41(h) of the Specific Relief Act.

12. After perusal of entire plaint and documents, it is clear that the suit of the plaintiff is clearly barred under Section 347 (E) read with Sections 347 (B) and 343 (4) of DMC Act, 1957 as plaintiff is trying to challenge demolition orders of MCD by virtue of this suit, under the CS SCJ 416/18 Page 10 of 11 Pawan Kumar Jain Vs. SDMC & Ors.

garb of permanent and mandatory injunction. The suit of plaintiff is also barred U/s 41(h) of Specific Relief Act, as he can avail other efficacious remedy before Ld. Appellate Tribunal of MCD. Hence, there is no cause of action in favour of plaintiff against defendants. Therefore, application U/o VII Rule 11 CPC stands allowed and plaint stands rejected U/o VII Rule 11 (a) & (d) CPC.

13. No order as to costs.

14. Decree sheet be prepared accordingly. File be consigned to Record Room.

    (Announced in the open                     (Tyagita Singh)
    Court on 20.12.2018)               SCJ­cum­RC (South), Saket Courts
          Digitally
                                                New Delhi
          signed by
          TYAGITA
TYAGITA   SINGH
SINGH     Date:
          2018.12.24
          16:12:35
          +0530




    CS SCJ 416/18                                                Page 11 of 11