Delhi District Court
Shri Om Prakash vs Municipal Corporation Of Delhi on 28 November, 2019
In the Court of Sh. Narinder Kumar
Additional District Judge04 (West), Tis Hazari Courts, Delhi.
RCA DJ No. 173/17
1. Shri Om Prakash
S/o Shri Nanak Chand
2. Shri Tirath Ram
S/o Shri Nanak Chand
3. Smt. Jasbeer Kaur
W/o Shri Tirath Ram
4. Smt. Usha Dhingra
W/o Shri Om Prakash
All R/o E21,
Bhagwan Dass Nagar (Extn)
East Punjabi Bagh,
New Delhi 110026. ... Appellants
versus
1. Municipal Corporation of Delhi
Through its Commissioner
Civic Centre, Minto Road, Delhi.
2. Shri Niranjan Singh
Assistant Engineer (Bldg)
Municipal Corporation of Delhi
(West Zone), Rajouri Garden,
New Delhi. ......Respondents
Date of institution : 26.09.2017
Date of order : 28.11.2019
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JUDGMENT
By way of present appeal, plaintiffs in suit bearing CS No. 7768/16 instituted against MCD & anr, have challenged order dated 10.08.2017 passed by Learned Additional Senior Civil Judge as their suit has been dismissed while observing that the same is not maintainable in absence of notice under Section 478 of Delhi Municipal Corporation Act i.e. for want of statutory notice to the defendants.
2. Plaintiffs instituted suit on 22.10.2001 claiming following reliefs : "(i) a decree of perpetual injunction in favour of the plaintiffs and against the defendants may please be passed thereby restraining the defendants/ their employees/ agents / servants etc from carrying out any demolition action or any other coercive action against the plaintiffs and declaring that the Municipal Corporation of Delhi has got no jurisdiction to either issue any notice under Section 343/347 of the Delhi Municipal Corporation Act or to take any threatened action of demolition or prosecution in respect of any part of the old existing property prior to 1977, having duly adopted and regularized in the lay out plan wherein the built up property No.E21, situated at Bhagwan Dass Nagar( Extension), East Punjabi Bagh, New Delhi110026 was shown.
(i.a.) a decree of mandatory injunction in favour of the plaintiffs and against the defendants may please RCA DJ No. 173/17 Shri Om Prakash vs. MCD & anr. Page No. 2 of 7 be passed thereby directing the defendants/ their employees/ agents / servants etc to regularize / issue the necessary regularization order after the compliance particularly by the plaintiffs having deposited Rs.1,14,559/ (Rupees one lac fourteen thousand five hundred and fifty nine only) as regularization / compounding fee as per letter / order dated 01.06.2005 of the Executive Engineer (Bldg), MCD, West Zone, Delhi..."
3. Plaintiffs claim themselves to be owner and in possession of the three storeyed property bearing no. E21, Bhagwan Dass Nagar Extension, East Punjabi Bagh, New Delhi26 having purchased the same in the year 1993. They claimed to have never carried out any unauthorized constructions or alteration in the suit property.
Case of the plaintiffs is that defendant no.1 raised demand of Rs.1,14,559/ vide order dated 01.06.2005 for regularization of the said property, whereupon, they, without prejudice on 20.11.2006 deposited this amount with the MCD for regularization of the suit property but even then, defendant Corporation and its officers have failed to take further steps for regularization of the property.
During one week, defendant no.2 / officer of defendant no.1 is alleged to have visited the suit premises and threatened to demolish the same, as claimed by the plaintiffs. Property was sought to be demolished without following provisions of law and without giving opportunity of being heard.
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4. Defendant put in appearance and filed written statement challenging the maintainability of the suit in view of provisions of Section 477 and 478 of DMC Act and on the ground that Civil Courts has got no jurisdiction in view of provisions of Section 347(E) and 343(A) of DMC Act, the reason being that officials of defendants have already initiated action in connection with unauthorized construction and already booked the property on 03.09.2001, following due process of law and further that demolition order had already been passed but the plaintiffs did not resort to the efficacious remedy of filing appeal against the demolition order. Other preliminary objections were also raised by the defendants.
5. Vide order dated 25.10.2004, following issues were framed by learned Trial court :
1. Whether the suit of the plaintiff is barred under section 477/478 of DMC Act ? OPD
2. Whether the suit of the plaintiff is barred by section 347(E) and 343 of the DMC Act ? OPD
3. Whether the plaintiff is entitled to the decree for perpetual injunction as prayed for ? OPP
4. Relief.
6. Vide order dated 17.03.2009, Learned Additional Senior Civil Judge, after hearing arguments on the two preliminary issues i.e. issues nos. 1 & 2, observed that the controversy in question could not be decided without inviting evidence and adjourned the case for evidence of the plaintiff while further observing that both the issues will be decided after inviting evidence from both the sides.
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7. File reveals that on 07.09.2015, following issues came to be framed :
1. Whether the suit is barred by provisions of Section 477/478 of DMC Act ? OPD
2. Whether the plaintiff has no cause of action to file the present suit and suit is liable to be dismissed under Order 7 Rule 11 CPC ? OPD
3. Whether plaintiff is entitled for the relief of perpetual injunction thereby restraining the defendants from carrying out any demolition action or any other coercive action against the plaintiffs? OPP
4. Whether the plaintiff is entitled for the relief of declaration that the Municipal Corporation of Delhi has got no jurisdiction to either issue any notice under Section 343/347 of the Delhi Municipal Corporation Act or to take any threatened action of demolition or prosecution in respect of any part of old existing property prior to 1977, having duly adopted and regularized in the layout plan wherein the built up property No. E21, situated at Bhagwan Dass Nagar (Extension), East Punjabi Bagh, New Delhi110026? OPP
5. Whether the plaintiff is entitled for the relief of mandatory injunction thereby directing the defendants to regularize / issue the necessary regularization order after the compliance particularly by the plaintiffs having deposited Rs.1,14,559/ as regularization / compounding fee as per letter / order dated 01.06.2005 of the Executive Engineer (Bldg), MCD, West Zone, Delhi ? OPP 6 Relief.
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8. Record further reveals that vide order dated 15.10.2016, following preliminary issue was framed : "Whether the suit of the plaintiff is maintainable or not ? OPP"
9. After the issues were initially framed, as noticed above, case was adjourned from time to time for exparte evidence of the plaintiff. On application under IX Rule 7 CPC filed on behalf of defendant no.1, exparte order was set aside and case was adjourned for evidence of the plaintiff.
10. From the proceedings conducted by Learned Trial Court from time to time, it remains unexplained as to why Learned Trial Court framed issues once again on 07.08.2015 when issues had already been framed on 25.10.2004 and as to why again a preliminary issue was framed vide order dated 15.10.2016, when vide order dated 17.03.2009, Learned Trial Court had already observed that controversy on the maintainability of the suit in view of provisions of Section 347 (E) read with Section 343 of DMC Act and on the point of jurisdiction of the civil court shall be decided only after evidence is led by both the parties.
It is pertinent to mention herein that while framing preliminary issue on 15.10.2016, it was not specified as to on which of the grounds the suit is not maintainable.
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11. In view of the above discussion, court finds that order dated 10.08.2017 deserves to be set aside. As a result, appeal is allowed. Impugned order dated 10.08.2017 is set aside. Suit is restored to its original number. Learned Trial Court is directed to decide the suit afresh after evidence is led by the parties.
Parties are directed to appear before Learned Trial Court on 05.12.2019 at 10:00 am. Trial Court record be sent back Digitally signed alongwith copy of this judgment forthwith. by NARINDER NARINDER KUMAR KUMAR Date: 2019.11.28 17:07:52 +0530 Announced in the open Court (Narinder Kumar) th on 28 day of November, 2019 Additional District Judge04 (West), Delhi.
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