Delhi District Court
Ms. Amarjeet Kaur vs Municipal Corporation Of Delhi on 24 August, 2012
IN THE COURT OF SHRI RAJ KUMAR TRIPATHI,
SENIOR CIVIL JUDGE (SOUTH),
SAKET COURTS, NEW DELHI.
CS No. 88/12
Unique Case ID No. 02406C0143162012
Ms. Amarjeet Kaur
W/o Mr. Amrik Singh
R/o G26, Third Floor,
Kalkaji, New Delhi
...Plaintiff
Versus
Municipal Corporation of Delhi
Central Zone.
...Defendant
DATE OF INSTITUTION : 07.06.2012
DATE OF HEARING ARGUMENTS : 18.08.2012
DATE OF PRONOUNCEMENT : 24.08.2012
SUIT FOR PERPETUAL AND MANDATORY INJUNCTION
ORDER
1. This is an order on the point of maintainability of the suit in view of Section 347E and other provisions of The Delhi Municipal Corporation Act (hereinafter referred to as "DMC Act".) CS No. 88/2012 Page No. 1 of 10
2. The plaintiff has filed the present suit for perpetual and mandatory injunction against the defendant - Municipal Corporation of Delhi. The plaintiff is aggrieved of the illegal action of defendant of serving the demolition order dated 06.02.2012. The plaintiff has alleged that defendant has passed an order of demolition without serving a show cause notice upon her. It is stated that even the demolition order is not in the name of the true owner of the property, therefore, the same has no legal sanctity and is nonest in the eyes of law. The plaintiff has prayed for perpetually restraining the defendant, its agent, attorneys and nominees etc from demolishing the property bearing no. G26, Kalkaji, 4th floor, New Delhi (hereinafter referred to as "suit property").
3. The suit filed by the plaintiff has been contested by the defendant by way of filing written statement. The defendant has stated that the suit property was inspected by the area official on 10.07.2012 and on inspection it was noticed that the property consists of basement to 3rd floor with 100% coverage and partly unfinished 4th floor. As per record, the property in question stood booked for unauthorized construction of 4th floor, vide U/C file no. 25/B/UC/CZ/2012 dated 23.01.2012 U/S 343/344 of DMC Act. It is further stated that after following due process of law, the necessary demolition order has been CS No. 88/2012 Page No. 2 of 10 passed by the competent authority. It is stated that in respect of the suit property the necessary sealing proceedings U/S 345A of The DMC Act has also been initiated and upon following the due process, the required order U/S 345A of DMC Act has also been passed by the competent authority on 09.03.2012. It is averred that the owner/occupier has preferred an appeal bearing No. 181/ATMCD/2012 titled Amarjit Kaur v. MCD which is listed for 10.09.2012. Rest of the averments made in the plaint has been denied by the defendant.
4. I have heard the submissions advanced by learned counsel for both the parties.
5. Learned counsel for plaintiff submitted that no show cause notice was issued to plaintiff prior to passing of demolition order. The alleged demolition order was not issued in the name of correct person i.e plaintiff. Learned counsel further submitted that there is jurisdictional error in passing of the order. Therefore, the suit filed by the plaintiff before this court is very much maintainable. Counsel for plaintiff in support of his submissions, relied upon the judgment titled as Shiv Kumar Chadha and Ors v. Municipal Corporation of Delhi and Ors 1993 (3) SCR 522; Manohar Lal Chatrath & Anr v. CS No. 88/2012 Page No. 3 of 10 Municipal Corporation of Delhi AIR 2000 Delhi 40 and R.A. Bhujwala v. Muncipal Corporation of Delhi 1996 RLR 320.
6. On the other hand, it was submitted by learned counsel for defendant that the demolition order was passed after following due process of law i.e the show cause notice was issued and served upon owner/occupier of the building and after affording opportunity to him/her, the demolition order was passed. Learned counsel further submitted that Section 347E and Section 343(4) DMC Act bars the jurisdiction of the Civil Court and only the Appellate Tribunal, MCD is the competent forum to decide the matter in dispute between the parties. Learned counsel for defendant prayed for dismissing the suit filed by plaintiff being not maintainable.
7. I have given my careful consideration to the submissions advanced on behalf of both the parties and gone through the entire material available on record.
8. The plaintiff is seeking injunction against the defendant - MCD for restraining the defendant, its agents, attorneys etc from demolishing the suit property. Section 343(4) of DMC Act bars the jurisdiction of the Courts. It states that no court shall entertain any suit, application or other proceedings for injunction or other relief against CS No. 88/2012 Page No. 4 of 10 the commissioner to restrain him from taking any action or making any order in pursuance of the provisions of this Section. The demolition order in the case has already been passed by the competent authority of MCD on 06.02.2012 after following the due process of law. Thus, the demolition order passed by the competent authority of MCD cannot be challenged before the Civil Court. It was submitted by learned counsel for plaintiff that the demolition order has not been passed by the commissioner but by some other person, therefore, the demolition order is not valid in the eyes of law. To counter the arguments of plaintiff, counsel for defendant submitted that by virtue of power U/S 491 of The DMC Act, the commissioner has passed a general order and the power exercisable by the commissioner has been delegated to different authorities. It was further submitted that since the order has been passed by the competent authority, therefore, the order is very much valid in the eyes of law. I find merit in the submissions advanced by counsel for defendant. The commissioner cannot be expected to discharge all the functions and duties himself. Therefore, he has been given power U/S 491 of The DMC Act to delegate his functions to other authorities. The demolition order in the case in hand has been passed by AE (Building) who is competent to pass the order under the Act as per the general order issued by CS No. 88/2012 Page No. 5 of 10 commissioner. Thus, there is no merit in the contention of defendant that since the order has not been passed by the commissioner himself, therefore, the order is not valid in the eyes of law.
9. Section 347 (E) of The DMC Act bars the jurisdiction of the Courts. For appreciation of contentions of both the parties, Section 347 (E) of The DMC Act is reproduced hereunder for ready reference:
"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 subsection (1), every suit, application or other proceedings 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 CS No. 88/2012 Page No. 6 of 10 continue to be dealt with and disposed of by that court as if the said section had not been brought into force".
10. A bare perusal of the aforesaid provision shows that no court can entertain any suit or application or other proceedings in respect of any order or notice appealable U/S 347 or 347B of The DMC Act. It is further clear that no order passed U/S 343 or 347B of The DMC Act or any notice issued thereunder can be called in question before any other Court except by preferring an appeal under those sections. In the case in hand, the demolition order has been passed U/S 343(1) of The DMC Act. Section 343(2) of DMC Act provides the remedy to the aggrieved party. Any person aggrieved by the order of the commissioner passed under subsection 1 of Section 343 of The DMC Act can prefer an appeal against the order to the Appellate Tribunal. The petitioner is feeling aggrieved by the demolition order passed by MCD on 06.02.2012. The allegation of plaintiff is that the demolition order was passed without serving a show cause notice upon her. A bare reading of the demolition order placed on record by none other than plaintiff herself shows that a show cause notice was issued to the owner/occupier of the building. The owner/occupier of the building did not file reply to the show cause notice. Thereafter the demolition CS No. 88/2012 Page No. 7 of 10 order was passed in the case. Section 347E of The DMC Act categorically states that neither the order nor the notice can be called in question before any other Court except the forum where the appeal can be preferred. Thus, in the given circumstances, the only remedy, which is available to the plaintiff is to approach the Appellate Tribunal, MCD. The jurisdiction of the Civil Court in respect of the matter in dispute is clearly barred.
11. In Shiv Kumar Chadha and Ors case (supra), the Hon'ble Supreme Court held that only in some special cases, a suit can be held to be maintainable. It was held that :
"(1) The Court should not ordinarily entertain a suit in connection with the proceedings initiated for demolition, by the Commissioner, in terms of Section 343(1) of The Corporation Act. The Court should direct the persons aggrieved to pursue the remedy before the Appellate Tribunal and then before the Administrator in accordance with the provisions of the said Act (2) The Court should entertain a suit questioning the validity of an order passed under section 343 of The Act, only if the Court is of prima facie opinion that the order is nullity in the CS No. 88/2012 Page No. 8 of 10 eyes of law because of any "jurisdictional error" in exercise of the power by the commissioner or that the order is outside the Act."
12. In the case in hand, there is no jurisdictional error in passing the demolition order dated 06.02.2012 by the competent authority. The said order has been passed after following due process of law. The order is within the purview of The DMC Act. Thus, in view of the judgment of Hon'ble Apex court in Shiv Kumar Chadha's case also the suit is not maintainable before this Court. The aggrieved person i.e plaintiff has to approach the Appellate Tribunal, MCD for seeking the remedy as sought in the case.
13. The judgments titled as R.A. Bhujwala v. Municipal Corporation of Delhi and Manohar Lal Chatrath & Anr v. Municipal Corporation of Delhi relied upon by learned counsel for plaintiff is not applicable in the facts and circumstances of the present case. In R.A. Bhujwala's case (supra), the plaintiffs were not issued any show cause notice U/S 3431 of The DMC Act while in instant case show cause notice was issued to the owner/occupier of the building who failed to file reply to the same. In Manohar Lal Chatrath & Anr's case (supra) the demolition and/or sealing order CS No. 88/2012 Page No. 9 of 10 was challenged on the ground of violation of principles of natural justice. In the instant case, the documents filed by the plaintiff herself i.e demolition order dated 06.02.2012 shows that the show cause notice dated 23.01.2012 was issued to the owner/occupier of the building and after affording the opportunity of hearing, the demolition order has been passed. Thus, there is no violation of principles of natural justice in this case.
14. For the reasons stated above, this court is of the considered view that the suit filed by the plaintiff before this court is not maintainable. The jurisdiction of this Court is barred in view of Section 3434 and Section 3473 of The DMC Act. The plaintiff has alternative and efficacious remedy to approach the Appellate Tribunal, MCD where the demolition order and/or sealing order can be challenged. The plaintiff has already approached that forum. Accordingly, the suit filed by the plaintiff is dismissed. No order as to cost. File be consigned to record room.
(Announced in open Court (RAJ KUMAR TRIPATHI)
on 24.08.2012) SENIOR CIVIL JUDGE
SAKET COURTS, NEW DELHI.
CS No. 88/2012 Page No. 10 of 10