Delhi District Court
Smt. Rama Anand vs Municipal Commissioner Of Delhi on 27 March, 2012
IN THE COURT OF SH. R. B SINGH
ADDITIONAL DISTRICT JUDGE - 01 (WEST): DELHI
MCA No. 20/11
Smt. Rama Anand
W/o Sh. M. M Anand
R/o A - 2, 2nd Floor
Double Storey Qtrs.
Ramesh Nagar, Kirti Nagar,
New Delhi .....Appellant
Versus
1. Municipal Commissioner of Delhi
(Through its Commissioner)
At Civic Center Connaught Place
New Delhi
2. SHO
P.S Kirti Nagar
New Delhi .....Respondents
J U D G M E N T
This is an appeal U/O XLIII Rule 1 read with section 151 of the CPC against the order dated 18.10.2011 on the application U/O XXXIX Rule 1 & 2 read with section 151 CPC of the Court of Sh. Sanjay Sharma, Ld. ASCJ (West), Delhi in suit no. 134/2011.
2. Ld. Counsel for the appellant has submitted that the Rama Anand Vs. MCD & Ors Page 1 of 9 appellant has preferred this appeal to set aside the impugned order dated 18.10.2011 of the Court of Sh. Sanjay Sharma, Ld. ASCJ (West), Delhi on the suit no. 134/11 with the submissions that the appellant is the owner of the immovable built up/old constructed property bearing no. A - 2, 2nd Floor, Double storey quarters, Ramesh Nagar, Kirti Nagar, New Delhi. On 25.07.2011, the defendants visited the suit property and restrained the appellant from white - washing and minor repair in the suit property, which she was carrying out for getting it fit to human habitation, by saying that they are having restrain order from the higher authorities towards raising unauthorized construction in the area. The appellant is well within his rights to keep it in good and well maintained condition fit for human habitation. The acts of the defendants is malafide and arbitrary. The suit property is well constructed built up, 2nd floor had been purchased on dated 29.04.2011 after checking the unauthorized construction on the web site of MCD. The Sub Registrar office on verification of the documents had also cleared/registered on 02.05.2011 and the MCD has charged the corporation tax of the land value and construction. When the suit was filed, a fresh showcause notice dated 14.10.2011 was served on 18.10.2011. The reply to the said notice was duly given to the MCD Rama Anand Vs. MCD & Ors Page 2 of 9 on 21.10.2011. It is worthwhile to mention that a notice was served on 31.05.2011 but just after one day the concerned old builtup barsati of the building was demolished on 01.06.2011 by the MCD. Under these circumstances, the appeal has been filed on the following grounds namely:
i. The impugned order is perverse, bad in law and contrary to the facts established on record.
ii. The ld. trial court had failed to appreciate the facts and material on record and passed the impugned order merely on the basis of hyper technical consideration. The impugned order is glaring instance of the non observance of the rule of law and grave injustice has been done to the appellant. The entire surrounding area of the suit property are having 3 - 4 stories buidlings. The acts of the defendant is biased, indiscriminate and violation of article 14 of the Constitution of India. The vacation notice was given by the defendant no. 1 is totally illegal and against the provision of law.
3. It is, therefore, prayed that this Court may call for the record of the Ld. trial court and set aside the order dated 18.10.2011, restrain the defendants as prayed in the suit in the interest of justice and grant permission for the whitewashing of the suit premises or Rama Anand Vs. MCD & Ors Page 3 of 9 any other relief/deem fit.
4. On the contrary ld. counsel for the respondent/MCD has submitted that the present miscellaneous civil appeal against the impugned order dated 18.10.2011 passed by Sh. Sanjay Sharma Ld. ASCJ, West, Delhi in suit bearing no. 134/11 is not maintainable in as much as flat bearing no. A - 2, Double storey quarters, Ramesh Nagar, (Kirti Nagar), has been a standard construction as per standard plan devised by the Government of India, Ministry of Urban Affairs, which consisted of ground floor and first floor only.
Whereas the property in suit has been illegally constructed with entire second and third floor, which has been booked vide File no. B - 1/WZ/UC/2011/693 dated 14.10.2011. The copy of the same is annexed as Annexure - R. Consequently, a show cause notice as aforesaid bearing no. B - 1/WZ/UC/2011/693 dated 14.10.2011 under section 343(1) and 344 of the Delhi Municipal Corporation Act, 1957 dated 14.10.2011 was given to the appellant/plaintiff to show cause as to why the same should not be demolished being illegal and unauthorized, against which the plaintiff/appellant filed its objection vide letter dated 20.10.2011. The copy of the show cause notice notice and reply letter dated 20.10.2011 are annexed as Annexure R - 1 and R - 2 respectively. On the basis of show cause Rama Anand Vs. MCD & Ors Page 4 of 9 notice as aforesaid after considering the reply filed by the plaintiff/appellant, a demolition order was passed and accordingly, on going construction of third floor was demolished on 01.06.2011. Since the second floor was also an unauthorized and illegal construction, therefore, an order bearing no. D/1365/EE(B)I/WZ/11 dated 29.11.2011 under section 349 of the DMC Act has been issued to the plaintiff/appellant to vacate the premises for completing the demolition action under section 343 and 344 of the Act. The copy of the order dated 29.11.2011 is annexed herewith as Annexure R - 3. In view of the action having been taken under section 343 and 344 of the Act in respect of the suit property, the civil suit is barred under section 347E of the Delhi Municipal Corporation Act, 1957 and as such the present appeal as well as main suit is liable to be dismissed forthwith. The reliance is placed on the judgment of Hon'ble High Court of Delhi in RE: Ashok Builders & Promoters Vs. Municipal Corporation of Delhi dated 30.01.2002 reported as 2002(97) DLT 10: 2002(63) DRJ 665 in which Hon'ble High Court of Delhi has relied that 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 Section 343 or 347B of the Act, the suit is also dismissed on Rama Anand Vs. MCD & Ors Page 5 of 9 the ground of non jurisdiction.
5. The act of the demolition of property under section 343 and 344 of the DMC Act is appealable to the Ld. Appellate Tribunal Municipal Corporation of Delhi which ought to have been availed of by the plaintiff/appellant, which is statutory remedy provided under the Act, but the plaintiff/appellant failed to avail of the same. It is, therefore, submitted that the jurisdiction of the Civil Court under section 347E of the Act and the notice under section 343 and 344 cannot be called in question. Under these circumstances, it is prayed that the appeal may be dismissed as order dated 18.10.20111 passed by Sh. Sanjay Sharma, Ld. ASCJ (West), Delhi is not liable to be setaside.
6. I have heard arguments from Ld. counsel for the appellant, Ld. counsel for the respondent and I have perused the material on record. Ld. counsel for the appellant has also relied on the case law i.e "Ashoka Builders & Promotes Vs. Municipal Corporation of Delhi 2002(63) DRJ 665" and I have perused the same also.
7. After hearing arguments and on the perusal of the material on the record including the Ld. trial court record this Court is of the opinion that the present appeal is liable to be dismissed as Rama Anand Vs. MCD & Ors Page 6 of 9 the property bearing no. A - 2, 2nd Floor, Ramesh Nagar, Kirti Nagar, New Delhi has been regulated as per the standard plan devised by the Government of India, Ministry of Urban Affairs whereas the property in suit has been illegally constructed with entire second and third floor which has been booked vide File no. B
- 1/WZ/UC/2011/693 dated 14.10.2011. Consequent upon the show cause notice as mentioned above under section 343 and 344 of the DMC Act dated 14.10.2011 was given to the appellant/plaintiff to show cause as why the same should not be demolished being illegal unauthorized against which the appellant/plaintiff has filed its objections vide letter dated 20.10.2011. On the basis of the show cause notice as aforesaid after issuance of the show cause notice and after considering the reply filed by the appellant/plaintiff demolition order was passed and accordingly on going construction was demolished on 01.06.2011 and second floor of the premises is also stated to be unauthorized and illegal construction and therefore an order bearing no. D/1365/EE(B)I/WZ/11 dated 29.11.2011 under section 349 of the Act has been issued to the plaintiff/appellant to vacate the premises for completing the demolition action under section 343 and 344 of the Act. In view of the action being taken under section 343 and 344 of the Act in respect of the said property Rama Anand Vs. MCD & Ors Page 7 of 9 the civil suit is also stated barred under section 343 of the DMC Act, 1957 as the action of demolition of property under section 343 and 344 of the Act is appealable to the Ld. Appellate Tribunal MCD, which is a statutory remedy available with the appellant/plaintiff.
8. The submissions on the behalf of the appellant that the MCD has demolished the property of the appellant only and has not touched the other surrounding illegal construction is not convincing, because as per the submissions on behalf of the MCD the on going construction has to be demolished first and the construction on the 3rd floor of the demised premises of the appellant was stated to be on going construction. The submission on the behalf of the appellant that the appellant is the owner of the immovable built up old constructed property bearing no. A - 2, Second Floor, Ramesh Nagar, Kirti Nagar, New Delhi is also not convincing as the property in question is regulated by standard plan devised by Ministry of Urban Affairs, Government of India in which only ground floor and first floor are permissible and since the appellant has allegedly illegally constructed the second and third floor in total disregard for the law of the land. The courts cannot help a person who has no regard for the law of the land. Even if the other persons of the locality has raised illegal construction up to 3 - 4 storeys, Rama Anand Vs. MCD & Ors Page 8 of 9 there is no justification that the appellant is also justified in doing illegality and the Courts cannot be of helping hand in perpetuation of illegality.
9. Under the aforesaid discussions, this court is of the opinion that the impugned order dated 18.10.2011 passed by Sh. Sanjay Sharma, Ld. ASCJ is not liable to be setaside and the appeal is liable to be dismissed and consequently the appeal is dismissed.
10. A copy of the judgment alongwith the ld. Trial court record be sent back to ld. Trial court for necessary information and record.
11. The appeal file be consigned to the record room.
Announced in Open Court
on 27th March, 2012 ( R. B SINGH )
Additional District Judge01(West)
Tis Hazari Courts, Delhi
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