Delhi District Court
Saket Bar Association vs The Govt. Of Nct Of Delhi on 27 September, 2013
Saket Bar Association v. Govt. of NCT of Delhi CS No. 551/11
IN THE COURT OF SH. MANISH YADUVANSHI
SCJCUMRC (SOUTH) SAKET COURTS COMPLEX
NEW DELHI
CS No. 551/11
UNIQUE CASE ID NO. 02406C0313312011
IN THE MATTER OF:
SAKET BAR ASSOCIATION
LAWYERS CHAMBERS BLOCK
SAKET COURTS, NEW DELHI.
THROUGH THE HONY. SECRETARY
SAKET BAR ASSOCIATION
....PLAINTIFF
VERSUS
THE GOVT. OF NCT OF DELHI
THROUGH SECRETARY
PUBLIC WORKS DEPARTMENT &
HOUSING (ALLOTMENT BRANCH)
GOVT. OF N.C.T. DELHI,
5TH LEVEL "B" WING
DELHI SECRETARIAT, DELHI.
....DEFENDANT
DATE OF INSTITUTION : 13.12.2011
DATE OF RESERVING THE ORDER : 26.09.2013
DATE OF DECISION : 27.09.2013
Result: Plaint Returned Page 1 of 18
Saket Bar Association v. Govt. of NCT of Delhi CS No. 551/11
ORDER
1. In this suit for Declaration, Permanent and Mandatory Injunction, the plaintiff in caption filed an application seeking waiver of statutory period of notice under Section 80(2) of the Code of Civil Procedure, 1908 (hereinafter, called 'CPC') while simultaneously seeking interim relief by virtue of application under Order 39 Rules 1 and 2 read with Section 151 CPC. Both the applications were filed with the suit. The present order is to dispose off the former application and depending on its outcome, the lattar.
2. At behest of plaintiff, the suit is presented by its then Hony. Secretary against the Govt. of NCT of Delhi, Public Works Department and Housing (Allotment Branch) through Secretary.
3. The plaintiff Association, duly recognized by Bar Counsel for Delhi, primarily functions in looking after lawful interest and welfare of members of its Association. The then Executive Committee of the plaintiff body passed resolution in favour of its then Secretary Sh. Vinod Sharma on 09.12.2011 to prefer this suit after feeling aggrieved by letter No. F.27/24/2010Judl./Pt. File/0296 dated 01.12.2011 which Result: Plaint Returned Page 2 of 18 Saket Bar Association v. Govt. of NCT of Delhi CS No. 551/11 was issued by the defendant and addressed to Hon'ble District Judge VcumASJ/I/C (South & SouthEast) District Court Complex, Saket, New Delhi. The letter was sent through office of the Ld. District Judge & Addl. Sessions Judge Incharge through its covering letter dated 03.12.2011 to the Hony. Secretary of the plaintiff. It is in regard to the license fee worked out by the Executive Engineer, CBMD, M422, PWD, Delhi for the allotment of the chambers in Lawyers' Block at District Court Complex, Saket, New Delhi. The fees worked out is Rs.59.60/sq. ft./month and for maintenance it is Rs.20/sq. ft. totalling Rs.80 per sq. feet per month of covered area per month. These are considered excessive, exorbitant and assessed in arbitrary manner. It is in the petition that Rs.1,000/ per month is being charged per member at Dwarka Court Complex; Rs.550/ per month per member (double occupancy) at Karkardooma Court Complex while Rs.1,500/ per month is being charged on double occupancy from the members at Hon'ble Delhi High Court Chamber Complex as license fee which is inclusive of maintenance charges as well. It is in the petition that as per Rule 12 of Saket District Court Lawyers' Chambers (Allotment & Occupancy) Rules, 2010, water scavenging charges, maintenance and other charges shall be paid by the allottee at the rates worked out by Result: Plaint Returned Page 3 of 18 Saket Bar Association v. Govt. of NCT of Delhi CS No. 551/11 the Hon'ble District Judge, Saket. Vide order No. 44/2011 dated 18.10.2011, the Hon'ble District Judge had worked out maintenance charges as Rs.1,100/ (single occupancy basis); Rs.550/ (double occupancy basis); Rs.400/ (triple occupancy basis) and Rs.150/ per month on multiple occupancy basis. As per Rule 10 of the above Rules, the defendant is required to fix the license fee. Since it was not done, the Hon'ble District Judge, Saket was authorized to fix the same provisionally by the Hon'ble Registrar General, Delhi High Court vide letter dated 19.10.2011. The plaintiff Association feels that even the interim fixation of license fee and maintenance charges is on higher side. It is submitted that cause of action accrued on 01.12.2011 on issuance of the letter from the office of Hon'ble Judge Incharge, Saket and is existing till the letter dated 01.12.2011 is withdrawn. A declaration is sought for to declare the said letter as illegal, null, void, ineffective and inoperative for being unjust, discriminatory, arbitrary, unreasonable and exorbitant. Permanent Injunction is prayed to restrain the defendant from acting upon/implementing/demanding the license fee and maintenance charges as per the above letter. Mandatory Injunction is prayed for directions to defendant to refix the fee and charges in accordance with established norms and settled precedents Result: Plaint Returned Page 4 of 18 Saket Bar Association v. Govt. of NCT of Delhi CS No. 551/11 observed at various District Courts and at the Hon'ble High Court of Delhi. As an interim prayer, it has been prayed that the defendant and its officials be restrained from acting upon/implementing/demanding the license fee and maintenance charges as per their letter dated 01.12.2011 till disposal of the suit. An application under Order 1 Rule 8 read with Section 151 CPC was also filed with the suit.
4. A restraint order was passed on 13.12.2011 restraining the defendant from acting upon, implementing, demanding the license and maintenance charges as per law dated 01.12.2011 subject to payment of maintenance charges and provisional license fees to the Hon'ble District Judge & ASJ, Incharge, South District, Saket Courts, New Delhi. On 19.09.2012, a memo of appearance was filed on behalf of the defendant. Subsequently, neither any vakalatnama nor written statement was filed consequent to which defence of defendant was struck off on 28.02.2013 and the interim order was confirmed till final disposal. Owing to subsequent developments in this case, an application was filed by the defendant on 27.08.2013 for setting aside of order dated 28.02.2013. Vide a detailed order dated 02.09.2013, the order dated 28.02.2013 was set aside. Written statement and reply to Result: Plaint Returned Page 5 of 18 Saket Bar Association v. Govt. of NCT of Delhi CS No. 551/11 the application were filed by the defendant. Time was sought to file reply to the application under Section 80 (2) CPC. In the written statement, the defendant took a preliminary objection that the suit is liable to be dismissed for want of notice under Section 80 CPC. It is also in the written statement that the license fees has been worked out on basis of recognized principles of valuation based on Delhi Plinth Area Rate2007. It is further in the written statement that for the State Bank of India operating from ground floor of Utility Block in District Court Complex, Saket license fee has been worked out at the rate of Rs.180.50/ per sq. ft. per month which is in fact lower then the rate fixed for the Lawyers' Block. The relevant documents has been relied upon. On similar counts, the defendant has opposed the application of the plaintiff under Order 39 Rules 1 and 2 CPC.
5. In the replication, the plaintiff has reiterated its case thereby maintaining its stand and taking a further stand that Delhi Plinth Area2007 Rules are not applicable in the present case. In the present case, in support of its case, the petitioner Association has relied on several RTI responses in regard to the licence fee and maintenance charges in various District Court Complex including that of the Result: Plaint Returned Page 6 of 18 Saket Bar Association v. Govt. of NCT of Delhi CS No. 551/11 Hon'ble Delhi High Court.
6. By virtue of setting aside of the order dated 28.02.2013, this Court has heard the appearing counsels on application under Section 80(2) CPC as well as the interim application. None of the counsels touched upon the application under Order 1 Rule 8 read with Section 151 CPC.
7. Section 80 CPC is a legislative mandate which may act as a hurdle until it shown that the suit is to obtain an urgent or immediate relief. A suit against government or any public officer in respect of any act purporting to be done by him in his official capacity may be instituted, with the leave of the Court, without serving any notice under Section 80(1) CPC. However, it is further mandated that the Court shall not grant relief in the suit, whether interim or otherwise, except after giving to the government/public officer a reasonable opportunity of showing cause in respect of relief prayed for in the suit. The proviso appended to Section 80(2) CPC thereafter governs subsistence of such a suit. Accordingly, the application under Section 80(2) CPC shall be taken up first for disposal in the light of brief facts enumerated above. Sh. Rajiv Bhardwaj, Advocate had sought some Result: Plaint Returned Page 7 of 18 Saket Bar Association v. Govt. of NCT of Delhi CS No. 551/11 more time for filing reply to this application which was declined earlier however liberty was given to agitate the same by virtue of the first preliminary objection recorded in the written statement besides his oral submissions.
8. According to the Ld. Counsel for the plaintiff, the cause of action accrued in favour of the plaintiff on 03.02.2011 when its Hony. Secretary received communication No. LCAC/Saket/2011/133/6798 dated 03.12.2011 from the Incharge, LCA Cell, Saket Court Complex along with letter of Sh. V.K. Tripathi, Joint Secretary, PWD bearing No. F.27/24/2010Judl./Pt. File/0296 dated 01.12.2011. It is submitted that immediately thereafter the present suit was filed by the plaintiff on 13.12.2011. Thus, it cannot be said that the plaintiff had not considered the time spent in between in proximity with the urgent relief prayed. It is therefore submitted that the plaintiff being conscious of legal provision moved the application in hand submitting therein that the petitioner seeks urgent and immediate relief against unlawful and discriminatory imposition of license fees which would seriously jeopardize and have a negative impact on the profession of members of the plaintiff body. It is thus said that the purpose of relief Result: Plaint Returned Page 8 of 18 Saket Bar Association v. Govt. of NCT of Delhi CS No. 551/11 would be defeated by giving the notice or the postponement of the institution of the suit.
9. Conversely, Sh. Rajiv Bhardwaj, Advocate has submitted that in furtherance of the preliminary objection in this regard as contained in his written statement, the suit does not discloses any urgency at all. Ld. Counsel submitted that between time spent on receipt of the communication impugned and filing of the suit, the plaintiff Association could have issued legal notice in accordance with Section 80(1) of CPC and could have then proceeded to have brought this suit in order to have it sustain the legal hurdle of Section 80 CPC.
10. I have considered the said arguments in the light of the legal objections. Section 80 (2) is in the nature of an exception to Section 80(1). It has been introduced by way of amendment in the year 1976 with a view to entertain suits where urgent and immediate relief is required to be given. At the same time, it has also been held that Section 80(2) is mandatory and it cannot be bypassed. It has been held to be a precedent even for a suit for injunction. Prior leave of the Court is to be sought to sustain such a suit. It has been held in Union of India v. N.N. Batiani, 2001 (2) Guj LR 338 that under Section Result: Plaint Returned Page 9 of 18 Saket Bar Association v. Govt. of NCT of Delhi CS No. 551/11 80(2) for obtaining urgent relief suit can be filed with the leave of the Court without serving Section 80 notice, but no exparte injunction or an interim relief can be granted without affording reasonable opportunity to the government. It has been held in Yasodha Kumari v. MCD, AIR 2004 Delhi 225 that where plaintiff's application for grant of leave is pending, the Court cannot dismiss the suit for want of notice without deciding the application.
11. In the case before me, it has been nobody's contention that there is an implied grant of leave by virtue of earlier order of Court dated 13.12.2011. Thus, it has all the more necessitated to consider the grant of leave as sought in the application in hand. How the Hon'ble Courts have construed the importance of a provision of the like of Section 80(2) CPC or for that matter similar analogous provisions like Section 478 of Delhi Municipal Act, Section 53B of the Delhi Development Act, Section 155 of the Multistate and Cooperative Societies Act, 2002, etc. can be appreciated by virtue of following case law viz:
i) In Ram Pratap Singh Nayyar v. Municipal Corporation of Delhi & Anr., CS (OS) No. 234/11 decided on 10.02.2011, it has been Result: Plaint Returned Page 10 of 18 Saket Bar Association v. Govt. of NCT of Delhi CS No. 551/11 held that MCD being not a government, provisions of Section 80(2) of CPC does not apply to the suit against it. It is further held that there is no provision in the DMC Act for any exemption from requirement of serving notice under Section 478 (1) of Act. It is further held that Section 80(2) CPC cannot be applied in suit attracting applicability of Section 478 of Act or Section 53B of DD Act. The suit was for possession of land, recovery of money and permanent injunction restraining the defendants from constructing drain on the area alleged to be in their occupation. The Hon'ble Delhi High Court held that since the suits were apparently barred by provisions contained in Section 478(1) of the Act the plaint was rightly rejected under Order 7 Rule 11(d) of the CPC.
ii) In Krishak Bharti Cooperative Ltd. v. Iffco Tokio General Insurance Co. Ltd. & Ors., 125(2005) DTL 45, in Krishak Bharti Cooperative Ltd.'s case (supra), the Hon'ble High Court of Delhi had occasion to deal with Section 155 of the MultiState CoOperative Societies Act, 2002 (a provision analogous to Section 478 (1) of DMC Act) in a suit for declaration to the effect that the petitioner is and continues to be an associate of respondent No.2 for purpose of and in Result: Plaint Returned Page 11 of 18 Saket Bar Association v. Govt. of NCT of Delhi CS No. 551/11 terms of joint venture agreement etc. and as such continues to be shareholder holding 20% equity in the respondent No.1. It was held that the respondent No.2 is a MultiState Cooperative Society and that before filing of the suit, petitioner did not serve any notice to Central Registrar as envisaged by Section 155 of the said Act. It was held by the Hon'ble Court that since no notice was served the suit was hit under Order 7 Rule 11(d) of CPC as barred by law. The Hon'ble Delhi High Court also relied on the observations of Andhara Pradesh and Patna High Court in case title Union of India v. Eastern Match Co.
Tirumangalam MANU/AP/0084/1964 which is reproduced as under:
"It is wellestablish by the pronouncements of the highest tribunals that the terms of this Section are imperative, and that a suit not complying with its provisions cannot be entertained by any Court and, if instituted, must be rejected under Order VII CPC Rule 11, Even where the Government was only a proforma defendant, it was held that a notice under this Section is necessary. The notice must substantially fulfill the object in informing the parties concerned generally of the nature of the suit intended to be filed, and it is essential, having regard to the language of Section 80, that notice should state the names, designations and places of residence of all the plaintiffs."
Result: Plaint Returned Page 12 of 18
Saket Bar Association v. Govt. of NCT of Delhi CS No. 551/11
iii) In Smt. Prinda Punchi & Anr. v. Municipal Corporation of Delhi & Ors., RFA No. 170/2002 decided on 11.03.2005, the Hon'ble Delhi High Court had an occasion to deal with Section 53 of the DD Act and noncompliance of the same visavis Order 7 Rule 11 CPC and Section 80(2) of CPC. Section 53B of the Delhi Development Act is analogous to Section 478(1) of the DMC Act. The appellants had filed a suit claiming to be owners in possession of the suit property which was free from acquisition proceedings. The DDA filed written statement seeking dismissal of suit for want of notice under Section 80 CPC and Section 53 of the Delhi Development Act. These issues were treated as preliminary issues and Ld. Trial Court dismissed the suit being not maintainable as relief of declaration could not be accepted as urgent and immediate relief also sought in addition to decree for injunction. Hon'ble Delhi High Court held that the appellants were aware of acquisition proceedings. The appellants sought declaration as to title of the suit property in which the award was passed in 1981 while the suit was filed in 1992 and thus no urgent and immediate relief was seen. The orders of the Ld. Trial Court were found correct.
iv) In Good Will India Ltd. & Anr. v. The Union of India & Ors., Result: Plaint Returned Page 13 of 18 Saket Bar Association v. Govt. of NCT of Delhi CS No. 551/11 (1968) ILR Delhi 462, the Hon'ble Delhi High Court again examined the provisions of Section 80 CPC visavis Order 7 Rule 11 CPC in the light of Order 23 Rule 1 CPC. It has been observed as under:
"That a formal defect in a suit is one which is discovered after the suit has been properly instituted and the suit fails by reason of some point of form. Section 80 C.P.C. on the other hand creates a bar to the institution of the suit itself. Where a suit is Therefore instituted against the government without serving a proper notice as required by section 80 C.P.C. the suit must be deemed not to have been instituted at all. On the other hand Order 23 C.P.C. comes into play only when some formal defect is found in the suit after it has been properly instituted. It cannot Therefore apply to a suit which should be deemed not to have been instituted at all."
12. Thus, a perusal of the judgment above would agitate the sanctity afforded to legal provision on the subject. In almost all the cases, Hon'ble Courts took care of the fact as to whether the relief prayed therein can be considered as an urgent and immediate relief or not.
13. Having the above in its back drop, this Court had sought clarification from the Ld. Counsel for the plaintiff regarding the alleged demand by the defendant in regard to license fee and Result: Plaint Returned Page 14 of 18 Saket Bar Association v. Govt. of NCT of Delhi CS No. 551/11 maintenance charges. According to the Ld. Counsel for the plaintiff, the conveyance of letter letter No. F.27/24/2010Judl./Pt. File/0296 dated 01.12.2011 constitutes demand. I have perused the same along with other documents on record. Order No. 44/11 was passed by the District Judge and ASJ/I/C (South), Saket Court Complex, New Delhi on 18.10.2011 based on the recommendation of the concerned committee thereby fixing various charges under the heads, inter alia; water and scavenging charges, maintenance charges for common services and other charges at the rate of Rs.11,000/ per month (single occupancy basis); Rs.550/ per month (double occupancy basis each shareholder); Rs.400/ per month (triple occupancy each shareholder); Rs.150/ per month (multiple occupancy each shareholder). The other charges were subject to review w.e.f. 01.04.2013. A copy of it was sent to the Hony. Secretary of the plaintiff Association. Vide order No. 46/11 dated 01.11.2011, Ld. District Judge & ASJ/I/C, Saket fixed provisional license fee for each chamber at Rs.11,000/ per month subject to final fixation by the Government of Delhi. It was also communicated to the Hony. Secretary of the plaintiff Association. Consequently, in reference to Result: Plaint Returned Page 15 of 18 Saket Bar Association v. Govt. of NCT of Delhi CS No. 551/11 letter No. RKG/DJVASJ/I/C/Saket/ND/13 dated 02.04.2013 (not on record) Sh. V.K. Tripathi, Joint Secretary, PWD forwarded the letter impugned to the Ld. District JudgeVcumASJ/I/C which, as per endorsement of office of Ld. District JudgeV (South & SouthEast) was received on 02.12.2011 vide diary No. 854/11. The said letter was with an intent to apprise the office of Ld. District JudgeVcum ASJ/I/C about the license fee worked out by Executive Engineer, CBMD, M422, PWD. A careful perusal of the letter reveals that it is a mere information of the license fee worked out by the concerned Executive Engineer. It does not constitutes any unequivocal demand of license fee and maintenance charges worked out by RPV method. The said letter does not say as to since when the charges are to be recoverable whether retrospective or from a prospective date. 13.1 The said letter, along with covering letter No. LCAC/Saket/2011/133/6798 dated 03.12.2011 was forwarded to the Hony. Secretary of the plaintiff Association for his information and further action. No other communication followed from the office of the District Judge & ASJ/I/C (South) in regard to revocation of orders No. 44/11 and 46/11 or for any directions to the Hony. Secretary of the Result: Plaint Returned Page 16 of 18 Saket Bar Association v. Govt. of NCT of Delhi CS No. 551/11 plaintiff Association to communicate to its members in regard to further payment of charges fixed as per letter dated 01.12.2011. Thus, it can be unambiguously said that no demand had been raised by the officials of the defendant in its letter dated 01.12.2011. The communication dated 01.12.2011 was not made by the officials of the defendant with the Hony. Secretary of the plaintiff Association. Nonetheless, the said communication or the communication dated 03.12.2011 does not constitutes any demand. In this context, even the plaintiff Association seems to be quite unsure of. It is evident from the form in which the prayer in suit has been constituted. It is apparent from the prayer clause that the plaintiff is seeking restraint against defendant from acting upon, implementing and demanding the charges fixed in the letter impugned. Thus, as per own case of the plaintiff, the defendant is yet to raise a demand of the charges fixed in the letter impugned.
14. It being so, I would be unable to appreciate as to how the present suit discloses any urgent and immediate relief. Having recorded this opinion, I am of the considered view that the present suit does not disclose any urgent or immediate relief sought against the Result: Plaint Returned Page 17 of 18 Saket Bar Association v. Govt. of NCT of Delhi CS No. 551/11 government or public officer. The present suit cannot be dismissed under Order 7 Rule 11 (d) CPC as unlike the cases cited in para 11 of this order, the present petitioner has sought a leave of this Court by preferring this application under Section 80(2) CPC. Thus, it cannot be dismissed for want of cause of action. As per the proviso appended to Section 80(2), this Court after having heard the parties and after having recorded its satisfaction that no urgent and immediate relief need be granted in the suit, orders return of the plaint for presentation to it after compliance with the requirements of Section 80(1) CPC. Ordered Accordingly. No orders are therefore required on interim application.
15. On return of plaint and documents and after retaining certified copies, file shall be consigned to record room.
Announced in the open Court (MANISH YADUVANSHI)
on 27.09.2013 SCJCUMRC (SOUTH)
SAKET COURTS,
NEW DELHI.
Result: Plaint Returned Page 18 of 18