Delhi District Court
Sh. Ashok Sikka vs South Delhi Municipal Corporation on 23 October, 2017
Page No.1 of 102
IN THE COURT OF DR. NEERA BHARIHOKE ADJ01
SOUTH DISTRICT SAKET DISTRICT COURT, NEW DELHI
CS No. 5984/16
CNR No. DLST010001022010
IN THE MATTER OF:
Sh. Ashok Sikka
S/o Late Sh. Manohar Lal Sikka
R/o A662, Sushant Lok, PhaseI,
Gurgaon (Haryana).
..........Plaintiff
VERSUS
1. South Delhi Municipal Corporation
Through its Commissioner
Civic Centre, Minto Road,
New Delhi.
2. The Chief Secretary, Govt. of NCTD,
New Secretariat I. G. Stadium,
I. P. Estate, New Delhi.
3. Sh. A.K. Nigam
Former Commissioner, MCD
IAS Retired
R/o House No.K10,
Model Town, No.2, Delhi110009.
4. Sh. Naresh Kumar (IAS)
Managing Director, DTC (Former Addl. Commissioner MCD)
Mahatama Gandhi Road,
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New Delhi110002.
5. Sh. S.K. Jha (Former D. C. MCD),
South Zone, Green Park
C/o Chief Secretary
Govt. of NCT, Delhi110002.
6. Sh. A. K. Sharma
Chief Law Officer
Municipal Corporation,
Town Hall, Delhi110006.
7. Sh. Manish Rastogi
Supdt. Engg., MCD
C/o Municipal Commissioner, Delhi,
Town Hallo, Chandni Chowk,
Delhi110006.
8. Sh. R. P. Meena
Executive Engg.,
C/o Deputy Commissioner, MCD,
South Zone,
Green Park, New Delhi.
9. Sh. Anil Kumar
Asstt. Engg. (Building),
C/o Deputy Commissioner, MCD,
South Zone,
Green Park, New Delhi.
10. Sh. Sunil Dawar
Asstt. Engg. (Building)
C/o Deputy Commissioner, MCD,
South Zone,
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Green Park, New Delhi.
.........Defendants
O R D E R :
1. Vide this order I shall decide the application of the plaintiff filed under Order XII
Rule 6 CPC filed by the plaintiff.
2. The plaintiff filed the present suit for declaration, mandatory injunction and
damages and compensation under various heads including the inconvenience and
agony suffered by him and his family on account of demolition of his whole house
undertaken by the defendants despite suit property being protected under Delhi
Laws (Special Provisions) Act 2006 and that too without serving the mandatory
statutory notice under section 343, of DMC Act. The plaintiff has claimed that the
demolition of the suit property i.e. B5, lane 14, Western Avenue, Ekta Marg, Sainik
Farms, New Delhi carried out by defendant no. 1 to 10 is discriminatory, in violation
of law, without any authority/function of law and actuated with malafide motives due
to nonpayment of illegal gratification demanded from plaintiff besides being
colourful misuse of power by defendant no. 1 and its office bearers. He has also
sought a direction for restoration of the property as prevailing up to 22 nd May 2007
apart from monetary compensation.
3. The plaintiff is owner of suit property bearing house no. B5, 14 Lane, Sainik farms,
New Delhi. Originally the suit was filed against 11 defendants, Union of India being
the 1st defendant. However defendant no. 1 was deleted letter from the array of
parties on its application vide order dated 20.12.2011. Therefore submissions of the
plaintiff in reference to the defendants have been given as per the amended
memo of parties filed on 10 May 2016. Description of defendant no. 1 has
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been corrected as South Delhi Municipal Corporation through its
Commissioner.
4. The plaintiff has submitted that on 20 May 2007, defendant no. 8 to 10 visited the
suit property and demanded ₹ 5 lakhs as bribe. They further threatened the
plaintiff that if he does not pay the aforesaid amount to them then his house shall
be demolished in entirety. The plaintiff refused to pay the said bribe to them and
told them that his house was protected from any kind of punitive action and the
DMC act or any other relevant laws.
5. Plaintiff has submitted that the suit property was constructed prior to 2000 and is
an old property however the defendant attempted to justify their illegal action under
the garb of order dated 09.05.2007 of Hon'ble High Court in CWP no. 6734/2000
which was not enforceable in view of protection granted under Delhi Laws(Special
Provisions) Act, 2006.
6. The defendants in clear and blatant violation of law, barged into the house of the
plaintiff on 23.05.2007 and without giving any prior notice or without giving any
prior warning to the women and children residing in the suit property to leave the
house or giving them sufficient time to seek appropriate remedy or moving to some
other place or removal of their belongings and valuables.
7. Plaintiff has submitted that malafide of the defendants is apparent from the fact
that even as per the aforesaid order dated 09.05.2007 and 4 members Lawyers
Committee Report, only front canopy and beneath structure of the suit property
which was reconstructed, was only to be demolished if at all. But the defendant
continued to demolish the entire suit property on 23 rd May, 24th, 25th, 26th and 30th
May 2007.
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8. Plaintiff has submitted that he was evicted from suit property for nonpayment of
bribe as the order dated 9.05.2007 was not enforceable in view of suit property
being protected under Delhi Laws ( Special Provisions) Act 2006 and that too
without serving the statutory notice and moreover there was no such order of the
Hon'ble court for demolition of the suit property but the defendants violated the
provision of law by demolishing their house and therefore plaintiff has also claimed
amount of Rs. 1 crore with interest as damages.
9. Plaintiff has submitted that the malafide action of defendants is apparent from the
fact that they had singled out his house for the said demolition and that those who
had paid the bribe money to them, their houses were not demolished and they
were granted protection of the Delhi Laws(Special Provisions) Act, 2006.
10. The plaintiff has submitted that the defendant did not only demolish and damage
the house of the plaintiff i.e. suit property but they also damaged and exposed the
valuable articles of the plaintiff thereby allowing the said articles of the plaintiff to
be taken away by the thieves and the plaintiff was caused substantial damage by
the defendants as the defendant did not given sufficient time to even remove the
said valuable articles from his house and therefore the plaintiff has claimed
compensation on this count.
11. Plaintiff has submitted that he is entitled for restoration of suit property in the same
condition as it existed on 22 May 2007 because of action of demolition being
entirely illegal and actuated by malafides in blatant violation of law.
12. A joint written statement was filed on behalf of defendant no.2 and 5 to 11 who are
now defendant no. 1, 4 to 10 as per the amended memo of parties filed on 2
January 2016 and shall be referred in the following paragraphs as defendant no. 1,
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3 to 10). The right of defendant no. 3, Mr AK Nigam, to file the written statement
was closed vide order dated 26 September 2012.
13. Defendant no. 1, 4 to 10 submitted that the present suit is barred by section
477/478 of DMC Act. The further submitted that the suit is bad for misjoinder of
parties as defendant no. 1 and 4 to 7 had no concern with the alleged action which
is under challenge and defendant no. 8 to 10 were acting under the mandate of the
Hon'ble court. They have also submitted that the plaint does not disclose any
cause of action against them and is therefore liable to be rejected.
14. Defendant no. 1, 4 to 10 (who were originally defendant no. 2 and 5 to 11)
submitted that the suit has not been properly valued for the purpose of court fees
and jurisdiction. The value of the suit property is wholly erroneous because the suit
property was demolished under direction of the court, which always was and still is
unauthorised and illegal and such properties have no values in the eyes of law and
therefore to value such property to the tune of rupees one crore would be highly
misplaced and illogical. The defendant no. 1, 4 to 10 further submitted that
appropriate and ad valorem court fees having not been paid, the suit is liable to be
rejected.
15. Defendant nos. 1, 4 to 10 submitted that the suit is barred by principle of res
judicata since the order dated 09.5.2007 was determination of the legality of the
structure existing at site as well as legality of the action of the defendant no. 1, 4 to
10. The observations of the Hon'ble court passed in WPC No. 6734/2000 would act
as a part of the maintainability of the present suit which reads as:
"5. The MCD is directed to file an action taken report within 4 weeks from today as
against all the observations and directions recorded hereinbefore.
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6. We would like to have a joint inspection report of Mr Rajeev Awasthy and Mr.
Anoop Bigoi, who is the counsel for the Corporation, after they inspect all the
properties where unauthorised constructions have been made after order dated
12.01.2001 or where unauthorized construction is continuing."
16. Defendant no. 1, 4 to 10 further submitted that the demolition action was taken by
them in compliance of the directions passed by the Hon'ble Division Bench of
Hon'ble High Court of Delhi on the basis of the report submitted by committee of
advocates appointed by the Hon'ble Division Bench of Hon'ble High Court of Delhi
with regard to reconstruction of demolished portion, which was demolished by the
answering defendants and therefore the suit of the plaintiff is not maintainable.
17. Defendant no. 1, 4 to 10 submitted that the members of the committee should have
been impleaded in the array of parties. They have further submitted that the
present suit has been filed with malafide intentions with the view to put pressure
upon the officials/officers of the answering defendants/SDMC and in order to
protect the illegal construction raised by the plaintiff in the suit property.
18. Defendant no. 1, 4 to 10 submitted that the plaintiff has levelled various allegations
against the officials/officers of the answering defendant and even unnecessarily
dragged them in the present suit which is again malafidely on part of plaintiff and
the same has been done to achieve the nefarious designs to protect the illegal
construction raised by the plaintiff in the suit property.
19. Defendant no. 1, 4 to 10 submitted that the plaintiff himself being wrongdoer has no
right to claim any relief and as such is not entitled for any damages since the action
which was taken by the officials/officers of the answering defendants with regard to
unauthorised construction carried out by the plaintiff in the suit property was strictly
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in discharge of their statutory obligations and in compliance of the directions
passed by Hon'ble High Court.
20. Defendant no. 1, 4 to 10 submitted that the notice under section 80 CPC has not
been served as per the provisions of law and therefore the present suit is liable to
be rejected.
21. The defendant no. 1, 4 to 10 have submitted that the plaintiff moved a criminal
complaint under section 380/452/427/342/506/341 IPC read with section 120 B IPC
and section 7/13 of Prevention of Corruption Act before the Learned ACMM Saket
Courts New Delhi with the prayer that the local police of PS Neb Sarai, South
district, New Delhi may be directed to register the case and investigate the matter
against the officers as per provisions of section 156 (3) CrPC in accordance with
law the same was dismissed. They have further submitted that after dismissal of
this complaint, the plaintiff filed a writ petition criminal bearing no. 1558/2011 titled
as Ashok Sikka versus Commissioner of Police & Others with the
prayer to conduct investigation against the officials of answering defendants/SDMC
and register an FIR under the relevant provisions of law. Defendant no. 1, 4 to 10
have submitted that the said petition had been dismissed as withdrawn because
the same was false, misconceived and unfounded.
22. Defendant no. 1, 4 to 10 have submitted that earlier also petitioner had filed a
similar complaint before the Metropolitan Magistrate but the same too was
withdrawn unconditionally. Plaintiff is a compulsive litigant who is in the habit of
filing false cases and then withdrawing them.
23. For similar reasons the defendant no. 1, 4 to 10 have submitted that the plaintiff is
not entitled to any of the reliefs claimed the present suit. Defendant no. 1, 4 to 10
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have denied all the submissions made by the plaintiff and prayed for dismissal of
the suit.
24. Plaintiff filed replication to the written statement of defendant 1, 4 to 10 and
reiterated the submissions made in the plaint. He further submitted that defendant
no. 1 and 4 to 7 are very much concerned with the action of demolition as they
have signed the malafide and distorted picture recorded in minutes of the meeting
held in the chamber of Commissioner, MCD, Town Hall on 21/22 May, 2007 and
has also placed reliance on Delhi Laws(Special Provisions) Act, 2006 enacted by
Parliament and extended up to 31 October 2014 and no punitive action could be
taken even pursuant to any court order against properties which had already been
constructed prior to 08.02.2007.
25. Plaintiff has submitted that the suit is not hit by section 477 and 478 of DMC Act
nor the submission of the defendants is correct that there is no cause of action
against them.
26. Plaintiff has submitted that there was no court order for demolition of the property.
Only the statement of learned counsel for defendants was made suo motu as
apparent from order dated 09.05.2007 passed in WPC No. 6734/2000. Moreover
and in any case by virtue of Delhi Laws(Special Provisions) Act, 2006, enacted by
Parliament and extended up to 31 October 2014, no punitive action could be taken
even pursuant to any court order against any property which had already been
constructed prior to 08.02.2007.
27. The plaintiff has submitted that the defendants have relied upon CM no. 1195/2000
in WPC No. 6734/2000 in their written statement and in the documents of which,
the defendants have themselves admitted that the suit property was 1 of the 21
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properties mentioned at serial no. 23 of the order dated 12.01.2001 which proves
that the suit property was present and built in the year 2000 and thus protected
under Delhi Laws(Special Provisions) Act, 2006.
28. The plaintiff has further submitted that Mr. S.K. Jha, Deputy Commissioner, South
Zone, MCD i.e. defendant no. 5, had filed an affidavit in WPC No. 6734/2000 in
February 2007 ((Page no. 333 to 341 of Plaintiff's documents, Volume 1), where he
mentioned in para xxv of his affidavit as under:
"Property no. B5, Lane W14, Sainik Farm. The present property consists of
ground floor and first floor which are old and occupied. During site inspection
neither any sort of construction work has been seen in progress nor any building
material was found stacked there."
This deposition, in his affidavit, proves that the suit property was protected under
Delhi Laws(Special Provisions) Act, 2006. This affidavit was signed on all pages by
defendant no. 9 along with defendant no. 5. Both defendant no. 5 and 9 had
verified that the ground floor and 1st floor of the building are old and occupied 3
months prior to the demolition action arbitrarily taken by the defendants.
29. The plaintiff has submitted that defendants are relying on the report in WPC
6734/2000, dated 23.01.2001 which was filed as an annexure R- 3/MCD, filed in
WP (Crl) 1558/2011 and in the said report that suit property has been subjected to
demolition action to the limited extent in following words :
"The front canopy and structure beneath have been demolished."
Relying on this report, the plaintiff has submitted that if at all, only the reconstructed
part of front canopy and portion beneath could be a matter of dispute and there
was no question of the entire building being demolished.
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30. The plaintiff has submitted that the property was protected under Delhi Laws
(Special Provisions) Act, 2006 and the fact of protection was informed by the
plaintiff to the defendants, particularly defendant no. 5 and 9 by bringing the same
on record by filing a reply dated 26.0.2007 to MCD notices dated 22.0.2007 issued
by them under section 343, 344, 345 of DMC Act almost 3 months prior to the
demolition action.
31. The plaintiff has submitted that these aforesaid proceedings remained
inconclusive. Even if MCD could, in law, abandon any proceedings already
initiated, that could be done only by intimating to the person concerned that the
proceedings are being dropped/abandoned. Nothing of this kind was ever
intimated. Such notices under the DMC Act were also to be kept suspended as per
Delhi Laws(Special Provisions) Act, 2006.
32. The plaintiff has referred to how Delhi Laws(Special Provisions) Act, 2006 which
was extended on yeartoyear basis up to 31.12.2014, was violated as well as the
constitutional and fundamental right of the plaintiff was violated by demolishing suit
property as a whole continuously for 5 days i.e. 23 rd, 24th, 25th, 26th and 30th May
2007 in the scorching heat and evicted his family without any prior warning, notice
and left the family, the households on the road outside which was
stolen/damaged/misappropriated. This amounts to inhuman, unlawful and breach
of human rights on the part of the defendants. The plaintiff has submitted that the
property of the plaintiff was ruined in toto. The plaintiff has reiterated that that the
affidavit of defendant no. 5 reported that the ground floor and 1 st floor of the
building are old and occupied and no building materials were found stacked on the
site. The affidavit (Page no. 333 to 341 of Plaintiff's documents, Volume 1)was of
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the date three months prior to demolition action and bears signature of defendant
no. 9 as well as defendant no. 5 (Page no. 333 to 341 of Plaintiff's documents,
Volume 1) and it shows that demolition action was arbitrarily taken by the
defendants in order to teach a lesson to the plaintiff for not giving a bribe of ₹
500,000 on 20.05.2007.
33. The plaintiff has submitted that the minutes dated 12.06.2007 which have been
relied upon by the defendants have been signed individually by them which reflect
their mala fide and distorted picture.
34. Plaintiff has submitted that the defendants have abused the process of law and
demolished the whole of the suit property with mala fide intentions which was
beyond the statutory jurisdiction and against the natural justice. Defendants along
with labour trespassed into the property. The ceiling, beam walls, kitchen,
bathroom, temple and other rooms were ruined.
35. The plaintiff has submitted that the construction was not illegal. Moreover the
byelaws under the DMC Act are flexible and over the years thousands of properties
and rather entire colonies have been regularised with the construction already
made prior to the regularisation date/order as such the defendants by their own
conduct, policy, planning and practice have all along treated such constructions to
be entitled to regularisation. Plaintiff has further submitted that he has a right to
parity both with all other constructed properties of Sainik Farm colony and also the
other raised colonies numbering more than 1000.
36. The plaintiff has submitted that the defendants are themselves allowing fresh
construction in the area of Sainik Farms and nearby under the jurisdiction of police
station Neb Sarai and Mehrauli, South district. The plaintiff had filed applications
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under RTI, dated 23.07.2012 to MCD and Delhi Police and in reply to the RTI
application, the PIO/Additional Deputy Commissioner of Police have replied about
the fresh construction which says that requisite information is contained in 4339
pages for ongoing construction of houses and Sainik Farms and nearby areas
during the period 2009 till August 2012 which is not even protected under the Delhi
Laws(Special Provisions) Act, 2006. Construction after the 08.02.2007 till January
2009 is not included in this list. Plaintiff has submitted that about more than 300
new houses have been built in the area of Sainik Farms during the period 2009 to
August/September 2012 and has relied on aerial survey of 2007, Google Earth
Data as evident from CD showing comparison from the year 2006 till 2012 during
which, vacant plots were got constructed beyond the protected date i.e.8.02.2007.
Plaintiff further submitted that area survey from the layout plan of Sainik Farm for
purpose of seeking regularisation, filed in the summer 2007 contains a complete
detail of the plot which were vacant at that time. Anything which has come up later
is building constructed with the connivance of MCD officials.
37. The plaintiff has submitted that statutory notice under section 80 CPC and section
478 DMC Act had been served upon the defendants on 24.02.2010 and the
averment made by the defendants with regard to their transfer has no relevance as
the impugned actions are prior to that date and these officials are not protected
under any law.
38. In respect of the criminal proceedings referred by defendant no. 1 and defendant
no. 4 to 10 in the written statement, the plaintiff has submitted that those
proceedings had to be withdrawn on account of technical requirements of the
governing statutory provisions including the Prevention of Corruption Act, requiring
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proceedings to be conducted before only a Special Court and on a complaint to be
filed by the CBI/ACB etc. the plaintiff has denied the reply on merits submitted by
defendant no. 1 and 4 to 10. He has submitted that there was a blatant pick and
choose and discriminatory as well as corrupt action on the part of the defendants.
39. Defendant no. 2 and 3, i.e., the Chief Secretary, Government of NCT of Delhi did
not file their written statement and therefore the right to file the written statement
was closed vide order dated 26 September 2012.
40. After the pleadings were complete, Hon'ble High Court of Delhi framed following
issues on 14.05.2013:
1.Whether the present suit is barred under section 477/478 of DMC Act? OPD
2.Whether the present suit is bad on account of misjoinder of parties? OPD
3.Whether the present suit is barred under order 7 rule 11 CPC for want of action?
OPD
4.Whether the present suit is liable to be rejected for nonfiling of court fees? OPD
5.Whether the present suit is not maintainable on account of res judicata? OPD
6.Whether the construction of the plaintiff's house was protected under Delhi Laws
(Special Provisions) Act, 2006 or any statutory moratorium. If so whether the act of
demolition by the defendant thereof was in contravention thereof? OPP
7. Relief.
41. After framing of issues, the matter was adjourned for evidence of plaintiff. However
the plaintiff filed the present application under Order XII Rule 6 CPC to pass a
judgment on admissions and has submitted that issues no. 1 to 5 are purely legal
in nature while issue no. 6 can be decided on the basis of admissions on the part
of the defendants in the pleadings or in the documents which are mostly admitted
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record of the MCD/DMC apart from certain court orders. Plaintiff has submitted that
above documents are part of undisputed record of MCD/SDMC obtained under RTI
with the stamped endorsement by MCD/SDMC.
42. Defendant no. 1, 3, 5 and 7 to 11(there are only 10 defendants therefore 11 is being
read as 10) filed written submissions in response to the present application and
have reiterated the submissions made in their written statement except for
defendant no. 3 whose right to file the written statement was closed but has filed
his written submissions without seeking the leave of the court. They have further
stated that the issues in the present suit were already framed on 14.05.2013 which
are mixed questions of law and fact.
43. Defendant no. 1 to 3, 5 and 7 to 10 have submitted that the 1 st issue framed as
whether the present suit is barred under section 477 and 478 of DMC Act is to be
adjudicated in the light of legal provisions and for which no admission anywhere
either in proceedings or in any document has been filed before the court.
44. The 2nd issue as framed i.e. whether the present suit is bad on account of
misjoinder of parties in view of the fact that defendant no. 3 to 10 are the officers
who were performing their duties for which they just complied with order is of the
Hon'ble High Court of Delhi which are passed in WP (C) no. 6734/2000 namely
Rajeev Malhotra versus Union of India and cannot be thus sued.
45. The 3rd issue which had been framed was whether the present suit is barred under
order VII rule 11 CPC for want of cause of action and the plaint is liable to be
rejected on the 1st instance as the dispute involved in the plaint is already
adjudicated by the Hon'ble High Court of Delhi and MCD officials cannot be held
liable for their actions which were performed under the orders passed by the
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Hon'ble High Court of Delhi in the said petition.
46. It is further submitted that the next issue is whether the present suit is liable to be
rejected for nonfiling of court fees. No ad valorem court fee has been filed for the
purpose of relief claimed by plaintiff in the present suit and therefore the plaint is
liable to be rejected.
47. Defendant no. 1 to 3, 5 and 7 to 10 have further submitted that the next issue is
whether the present suit is not maintainable on account of res judicata. In respect
of the said issue, Defendant no. 1 to 3, 5 and 7 to 10 have submitted that it is
already an admitted fact that the property of plaintiff is situated in an unauthorised
colony which is not regularised till date and the constructions made by the plaintiff
was already declared unauthorised and was demolished on whole in the year 2000
and the issue of demolition already stands adjudicated by the Hon'ble High Court
in WP ( C) no. 6734/2000 and the same issue cannot be adjudicated again for
which the already adjudication by the Hon'ble High Court of Delhi and it amounts to
res judicata. It has been further contended that the same being a pure question of
law cannot be dealt under the application under order 12 rule 6 CPC.
48. Defendant no. 1 to 3, 5 and 7 to 10 have submitted that the next issue is whether
the construction of the plaintiff was protected under Delhi Laws(Special Provisions)
Act, 2006 or any other statutory moratorium and if so whether the act of demolition
by the defendant thereof was in contravention thereof. Defendant no. 1 to 3, 5 and
7 to 10 have contended that it is an admitted fact that in WP (C) no. 6734/2000 vide
order dated 12.01.2001, Hon'ble High Court of Delhi formed 4 members
(advocates) committee to visit Sainik Farms and find out as to whether 21
properties mentioned in the affidavit of Mr US Chauhan, Jr engineer, South Zone
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have been demolished and to file the report in that concern. Defendant no. 1 to 3, 5
and 7 to 10 have contended that the property of the plaintiff was completely
demolished in the year 2000. Now again vide order dated the 9.05.2007, 2
members committee of Shri Rajeev Awasthi and Sh. Anoop Bagai advocates was
formed to inspect the unauthorized construction in 21 properties and which were to
be identified by the committee and thereafter action was to be taken by the MCD.
Defendant no. 1 to 3, 5 and 7 to 10 have therefore contended that the
reconstruction made by the plaintiff was not the old one but as it was constructed
after the demolition so it is not protected under the provisions of Delhi Laws(Special
Provisions) Act, 2006 being old and occupied.
49. Defendant no. 1 to 3, 5 and 7 to 10 have contended that vide order dated 09.050
2007 it was ordered by the Hon'ble High Court of Delhi to file the report of action
taken by MCD for the unauthorised reconstruction in all the 21 properties. The
plaintiff should have challenged the report of committee if he had any grievance
against that report and should have impleaded the members of committee as
necessary parties.
50. It has been further contended that if the suit of the plaintiff is to be ascertained for
damages then the remedy is only in law courts for which it is necessary to prove
the malafide on the part of officials of MCD by demolishing the house of plaintiff
and it has to be specifically ascertained with the specific name that this person is
liable to this extent and how he has exceeded his duties/powers. This fact can only
be adjudicated by the court when evidence is led by both the parties in this regard
and it cannot be decided on the application under Order XII Rule 6 CPC.
51. Defendant no. 1 to 3, 5 and 7 to 10 have further contended that it is an admitted
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fact that the entire structure demolished by the defendants was wholly
unauthorised, illegal and without any sanction as mandated under building
byelaws. It has been contended that there is no vested legal right in favour of
plaintiff which has been violated by the answering defendant and therefore suit of
damages does not survive against the defendants in the eyes of law.
52. Lastly they have submitted that the action taken against the property of plaintiff has
not been done by pick and choose because these 21 properties which were
demolished vide order dated 09.05.2007 were identified by the committee of
advocates on the basis of reconstruction and in this context the Hon'ble High Court
of Delhi held in suit no. 2581/1994 titled ANZ Grindlays Bank Pie versus
Commissioner of MCD, 1995 II AD Delhi 573, that allegations of
invidious discrimination in respect of action against unauthorised/illegal
construction or misuse in respect of demolition cannot be challenged as being
discriminatory or unconstitutional merely because others are left out or not
proceeded against.
53. In view of these submissions, Defendant no. 1, 3, 5 and 7 to 10 have prayed for
dismissal of the present application. Later defendant no. 3 changed his advocate
and it is to be reiterated that right of defendant no. 3 to file the written statement
was closed but he still filed detailed reply to the application. However he did not
withdraw the written submissions already filed on his behalf.
54. On the last date of hearing i.e. 14.10. 2017, defendant no. 3, 4 and 6 filed reply to
the present application. Defendant no. 6 described his reply as preliminary reply by
submitting that the plaintiff had filed many writs and the copies of which were not
supplied to him and therefore he has not made submissions in respect of the same.
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However on perusal of order dated 22.09.2017 and 3.10.2017, it is noticed that the
copies were directed to be supplied to learned counsel for defendant no. 3 and 4 in
presence of learned counsel for defendant no. 6 who did not make any such
request or averment or submission that defendant no. 6 also be supplied with the
copies of the same. However defendant no. 3 and 4 have made their submissions
in respect of those writs. As observed earlier, defendant no. 3 had earlier filed his
reply through his previous counsel. However later he filed another reply. Both of his
replies have been taken into the objections despite there being actually no written
statement by defendant no. 3.
55. The principal/basic objections taken by all the defendants, including Defendant no.
1, 3, 5 and 7 to 10 are as follows:
The suit is barred by principle of res judicata.
The present suit is barred by res judicata in as much as several writ petitions and
suits had been filed by the plaintiff and his son in respect of the same property on
the same cause of action and further issue of demolition already stands
adjudicated by the Hon'ble High Court in WP(C) no. 6734/2000 and the same issue
cannot be adjudicated again for which the already adjudication has been made by
the Hon'ble High Court of Delhi and it amounts to res judicata. It has been further
contended that the same being a pure question of law cannot be dealt under the
application under order 12 rule 6 CPC.
There are no admissions made on behalf of any of the defendants.
The application is not maintainable under Order XII Rule 6 CPC as the admissions
have to be unequivocal, unbiased, unambiguous and clear which are not there in
the present suit.
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The contempt of directions made by the Hon'ble High Court of Delhi passed
vide order dated 03.11.1999
Defendant no. 3 and 4 have also stated that the plaintiff and his son have
committed contempt of directions made by the Hon'ble High Court of Delhi passed
vide order dated 03.11.1999.
The plaintiff is a habitual litigant and indulges in forum shopping
Defendant no. 3 and 4 have submitted that the suit is barred by res judicata as the
plaintiff is a habitual litigant and has filed various writ petitions with regard to the
same cause of action and the same were outrightly dismissed by the courts and he
is indulged in forum shopping.
The demolition was carried out in compliance of directions of Hon'ble High
Court of Delhi
The allegations of demolition of suit property because of nonpayment of bribe by
the plaintiff are unfounded as the demolition of suit property was carried out in
compliance of the directions of the Hon'ble High Court. Impugned actions of
defendant no. 3 and 4 and 6 were completely bonafide and in compliance of the
directions of the Hon'ble High Court and that the same was in furtherance of their
official duties towards the defendant corporation in the capacity of Commissioner,
MCD.
The suit is not maintainable as notice under Section 80 CPC was not given to
defendants no. 3 to 10
The notice required under section 80 CPC was not given to the defendant no. 3 to
6.
The suit is barred by Section 477 of DMC Act
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The suit is bad for misjoinder of parties as defendant no. 3 to 10 discharged their
official duties only and never gave any directions nor committed any act in their
personal capacity.
The plaint does not disclose any cause of action against defendant no. 3 to
10 and is bad for misjoinder of parties
The plaint does not disclose any cause of action against Defendant No. 3 to 10 and
the same is barred by time. There is no averment against defendant no. 6 in the
plaint who was the Chief Law Officer in MCD and had not done any act or given
any opinion for the demolition of the premises of the plaintiff except for complying
with the orders of the Hon'ble High Court of Delhi in true spirit. A public officer
working as Chief Law Officer, MCD has the nature of perpetual succession despite
which the plaintiff filed the present suit making him as a party in person and not by
designation just to harass and defame him. Accordingly there is no categorical
averment either in the plaint or the documents available on record to establish the
grievance of the plaintiff. Defendant No. 6 never gave any directions in his personal
capacity.
Similar are the submissions of the remaining defendants i.e. defendant no. 1, 3 to 5
and 7 to 10.
The suit is time barred as it has been filed after expiry of period of limitation
prescribed and 478 of DMC Act
The application is not maintainable due to noncompliance of provisions of section
478 of DMC Act 1957. The present case has been filed in May 2010 for alleged
wrongful demolition of substantial part of the property of the plaintiff on 23.05.2007,
24.05.2007, 25.05.2007, 30.05.2007 i.e. just before the expiry of 3 years time and
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therefore the present suit is time barred in terms of provisions of subsection (2) of
section 478 of the DMC Act and thus the present suit is liable to be dismissed being
time barred having been filed beyond the limitation period prescribed of 6 months in
the said section.
56. All these submissions of the defendants were taken into consideration while
framing the issues in the present suit and it is to be determined if the plaintiff has
been able to make out his case of passing a decree on basis of admissions.
57. The defendants have submitted that they demolished the suit property of the
plaintiff for compliance of order of Hon'ble High Court dated the 9.05.2007 passed
in WP(C) 6734/2000, titled Rajiv Malhotra versus Union of India and
others. Records of the said petition were summoned by this court and have
been referred wherever relevant.
58. A brief chronology of admitted facts is reproduced here to understand the factual
matrix of the present suit:
i. The house of one Sh. Rajeev Malhotra was completely demolished by MCD
leading to filing of WP(C) no. 6734/2000 titled Rajeev Malhotra versus
Union of India and others alleging pick and choose attitude of MCD
officials regarding demolition of his house and seeking demolition of other
houses of the colony.
ii. Rajeev Malhotra had specifically pleaded that officials of MCD had allowed him
to construct his building as he had paid bribe to them and later demolished his
building and therefore he filed the said petition.
iii. The plaintiff was not a party to the writ petition WP(C) No.6734/2000. The suit
property was constructed prior to 2000 and is an old property.
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iv. Allegations of pick and choose were made against MCD, defendant no. 1 in the
present suit, in WP( C ) 6734/2000 as well as M/s Prayas vs UOI and
others, CWP No. 4479/2001 as well as in the present suit.
v. In CWP no. 6734 of 2000, the petitioner Rajeev Malhotra had filed CM no. 232
of 2002 where he had submitted that a fullfledged building is under
construction having no. H20, W - 10 Z Lane in Sainik Farm with the
connivance of police officials in MCD and the concerned owner had already
paid ₹ 5 lakhs to the officers for raising construction and total money is to be
paid to the MCD and Delhi police of ₹ 15 lakh and even on that date the person
who was to raise the construction is allowed to raise the construction by the
local police and MCD officials in case their demands are met. The said
application was filed on 5.01.2002.
vi. In the present suit also, the plaintiff has stated that defendant no. 8 to 10 had
demanded bribe of ₹ 5 lakh from him which he refused to give and therefore
his whole house i.e. the suit property had been demolished. allegations of pick
and choose were made against MCD, defendant no. 1 in the present suit, in the
said petition as well as M/s Prayas vs UOI and others, CWP No.
4479/2001 as well as in the present suit.
vii. In the proceedings dated 12.01.2001 of the said writ petition, learned counsel
for the petitioner, petitioner being Rajeev Malhotra submitted that according to
the affidavit of US Chauhan, Jr Engineer (Building), South Zone, MCD, Green
Park, New Delhi 21 properties had been demolished. In the said list, the
property of Shri Rajeev Malhotra (demolished on 30.10.2000) as well as the
property of the plaintiff i.e. the suit property (demolished on 09.12.2000 and 21.
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12. 2000) are also mentioned to be demolished.
viii. However learned counsel for petitioner(Rajeev Malhotra), Rajiv Awasthy stated
that according to his information, these properties have not been demolished
but merely some parts of the properties had been punctured.
ix. In order to test his submissions and to find out whether or not the assertions
made in the affidavit of Mr US Chauhan are correct, Hon'ble High Court of
Delhi appointed a committee of 4 members namely Mr Rakesh Tikku, Mr Sunil
K. Jain, Mr Rajiv Awasthy and Mr Ashok K. Mahajan all being lawyers.
x. In accordance with the orders of Hon'ble High Court of Delhi dated 12.01.2001,
the Committee of 4 lawyers filed a status report dated 23.01.2001 confirming
that the suit property was not demolished completely and the front canopy and
structure beneath of the suit property had been demolished.
xi. The demolition carried out in the mentioned 21 properties in the year 2000 was
carried out without serving any notice under section 343 and 344 of DMC Act.
xii. The report of Committee of 4 Lawyers did not give its report in respect of
properties bearing no. 37 E, 37 C, 559 A, K 250 and J 250, Sainik Farm.
Property bearing no. 37C is the address of the petitioner i.e. Rajeev Malhotra.
xiii. The status report dated 23 January 2001 has been described as interim report
of Committee of 4 lawyers and they submitted that the final report may take
longer time for which the sort time of 4 weeks for completing the job assigned
to it. No such final report was filed by the committee and the committee
clandestinely deleted the property of the petitioner Sh. Rajeev Malhotra from
the properties in respect of which the Committee had to file its report.
xiv. The committee had further observed that the houses which had been
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demolished had been chosen selectively without any basis.
xv. Suit property consisted of ground floor and first floor in February 2007 which
were old and occupied neither any sort of construction work had been seen in
progress nor any building material was found stacked there as per affidavit of
defendant no. 5 dated 27.02.2007 verified by defendant no. 9 filed in the
Hon'ble High Court of Delhi in WPC No. 6734/2000.
xvi. Despite that a show cause notice bearing no. 2594/DC/SZ/Bldg./2007 dated
22.02.2007 under Section 343/344 and for 345A of DMC Act, was issued upon
son of plaintiff by the Deputy Commissioner, defendant No. 5, Sh. S.K.Jha,
South Zone alleging that the unauthorised construction of ground floor and 1st
floor which was earlier demolished on 09.12.2000 has been completed.
(Contradictory to his affidavit dated 27 February, 2007 filed before Hon'ble High
Court dated 09. 06.2007 in CWP no. 6734/2000 as well as report of Committee
of 4 lawyers dated 23.01.2001)
xvii. MCD/defendant no. 1 also issued show cause notice vide file no.
49/B/UC/S Z/07 dated 22.02.2007 under section 344 (1) and 343 of DMC Act
1957 where it was stated that the unauthorised construction at ground floor and
1st floor which was earlier demolished on 9.12.2000 is being erected and the
undersigned (Assistant Engineer Defendant No. 9 Sh. Anil Kumar) has
directed to immediately stop the same. It was also stated that if the alleged
unauthorised construction was not stopped immediately on receipt of
notice, further action would be taken under section 343 and 344 (2) and 345 A
without any further notice.(Contradictory to affidavit dated 27th February, 2007
of defendant no. 5 filed before Hon'ble High Court dated 09. 06.2007 in CWP
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Page No.26 of 102
no. 6734/2000 as well as 23 January 2001)
xviii. In one of these notices, the one which was given by defendant no. 9, it was
stated that the construction work was being carried out and the plaintiff was
directed to stop the same immediately while in the other notice, given by
defendant no. 5 it was stated that the construction had been completed. It is
pertinent to note that both the notices are of the same date.
xix. The notices were duly replied by son of plaintiff on 26.02.2007 wherein he
mentioned that the suit property is protected under Delhi Laws (Special
Provisions) Act 2006 which bars any punitive action by civic authorities and
status quo was to be maintained. The above mentioned Sections of DMC Act
were suspended by the Parliament statute.
xx. Statutory proceedings of notice dated 22.02.2007 and reply dated 26.02.2007
continued till 16.04.2007 and on that day Defendant No. 5 reserved his orders
in the matter and the order remained unpronounced even as on date.
xxi. The demolition of the suit property i.e. B5, lane 14, Western Avenue, Ekta
Marg, Sainik Farms, New Delhi on 23, 24, 25 on 30 May 2007 was carried out
by defendant no. 1, 3 to 10 without serving the mandatory statutory notice
under section 343 of DMC Act.
xxii. The demolition of suit property started on 23.05.2007 without giving any
prior notice and without giving any prior warning to the women and children
residing in the suit property to leave the house or giving them sufficient time to
seek appropriate remedy or moving to some other place or removal of their
belongings and valuables.
xxiii. Defendants no. 1, 4 to 9 submitted that demolition action of whole house of
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plaintiff was taken in view of order of Hon'ble High Court dated 09. 06.2007 in
CWP no. 6734/2000. The relevant para reads as: At this stage, Mr. Jagmohan
Sabharwal, Sr. Advocate, states that action is being taken against these 21
properties. He admits that unauthorised construction in this property was
earlier demolished but they have been reconstructed. He states that
appropriate action for demolition of such reconstruction shall be
taken within 3 weeks.
xxiv. The said demolition was carried out after passing of the order of the
Hon'ble High Court dated 09. 06.2007 in CWP no. 6734/2000.
xxv. On the date of making of that submission by Mr. Jagmohan Sabharwal, the
suit property was entitled to protection under Delhi Laws(Special Provisions)
Act, 2006 as the suit property was 1 of the 21 properties mentioned at serial
no. 23 of the order dated 12.01.2001 thus proving that the suit property was
present and built in the year 2000 and thus protected under Delhi Laws(Special
Provisions) Act, 2006 on 09.06.2007 when the order relied upon by the
defendants was passed.
xxvi. On 09.06.2007, even Sh. Jagmohan Sabharwal, Senior Advocate, had
made a statement that appropriate action for demolition of such
re c onstruction would be taken within 3 weeks and he did not make a statement
that demolition would be carried out in three weeks from the said date.
xxvii. If the said submission of Sh. Jagmohan Sabharwal, Senior Advocate, that
appropriate action for demolition of such reconstruction would be taken
within 3 weeks is taken to mean that demolition action would be taken within
three weeks from 09.05.2007, the submission was made only in relation of RE
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construction. Thus defendant no. 1 could have only demolished the
reconstructed part. However provisions of Delhi Laws (Special Provisions) Act
(Act No. 22) 2006, extended protection to even the reconstructed parts of the
properties which were constructed prior to 1 January 2006.
xxviii. Affidavit of defendant no. 5 is of 27 February 2007 and at the relevant time,
Delhi Laws ( Special Provisions) Act (Act No. 22) 2006 had come into force with
effect from 1 January 2006 which specifically mandated that notwithstanding
any judgment, decree or order of any court, status quo as on 1 st day of January
2006 shall be maintained in respect of the categories of unauthorised
development and that all notices issued by any local authority for initiating
action against the categories of unauthorised development shall be deemed to
have been suspended and no punitive action shall be taken during the said
period of one year.
xxix. Punitive action has been described in the said Act as "punitive action"
means action taken by local authority under the relevant law against
unauthorised development and shall include demolition, sealing of premises
and displacement of persons or their business establishment from the existing
location, whether in pursuance of court orders or otherwise. In view of the
said mandate, defendant no. 1 or defendant no. 5 or 10 could not have initiated
sealing action against the suit property or any other property. However
defendant no. 1 and other officers of defendant no. 1 acted in violation of the
mandate of Delhi Laws (Special Provisions) Act (Act No. 22) 2006.
xxx. A meeting was conducted in the chamber of defendant no. 3 on 21.05.2007
which was attended by defendant no. 4 to 9.In the meeting of 22.05.2007 which
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was attended by defendant no. 4 to 9 (Defendant no. 6 was Chief Law Officer
at the relevant time) as well as counsels for MCD (CLO and counsels for MCD
knowing very well that section 343, 344 and 345 A of DMC Act 1957 cannot be
waived and are mandatory), it was decided that the demolition action
be allowed to be taken up, waiving the action taken by the
Department as per the provisions contained under section
343, 344 and 345 A of DMC Act 1957. (This fact of waiving the
provisions of section 343, 344 and 345 A of DMC Act have been admitted in
para 63 of WS on behalf of defendant no. 2 and defendant no. 5 to 11, who are
now defendant no. 1 and defendant no. 4 to 10.)
xxxi. The facts were never placed before the Hon'ble High Court which was
seized of the matter i.e. CWP no. 6734/2000.
xxxii. The very next day of the meeting, the suit property was demolished
without giving any prior notice and by waiving of notice under section 343 of
DMC Act.
xxxiii. Giving of at least 6 days advance notice by defendant no.1 under section
343 DMC Act is mandatory before demolishing any property to take appropriate
steps under the provisions of section 343 itself in response of the said notice.
xxxiv. The report of demolition carried out in 23rd to 30th May, 2007 reveals that
except for the suit property, defendant no. 1 demolished only the rebuilt part of
the properties in respect of which demolition action was taken in 2000 and the
rebuilt portions were identified by comparing with the photographs taken during
the demolition action in the year 2000. However in respect of suit property, no
such comparison was made and the whole of the suit property was demolished
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despite the photographs taken during the demolition action in the year 2000
clearly showing that only the front canopy and the area lying underneath of the
suit property was demolished at that time.
xxxv. Further only one other property was completely demolished i.e. J 12.
However the said property was completely demolished in the year 2000 as well.
xxxvi. On the 1st day of the demolition that is 23.05.2007, MCD officials taking note
of the fact that the property was occupied by 4 to 5 children and 8 to 10 women
and due to inadequate ladies police, property could not be vacated timely.
However in case of suit property, the MCD officials ignored the presence of
residents of the suit property and demolished the part of the property
mentioned in the said report of 23.05.2007. All these reports have been signed
by defendants no. 8 and 9 or by defendant no. 9 alone.
xxxvii. The defendants have not explained as to why the demolition action had not
been taken in respect of the other properties mentioned in the list of properties
prepared in the meeting held on 22. 05.2007 nor they have explained as to why
the demolition action did not continue in respect of the remaining little portion of
the suit property after 30.05.2007.
xxxviii. In response to RTI of plaintiff, the defendants have given the reason for not
continuing the demolition of the property after 30.05.2007 as the decision was
taken in meeting of 12.06.2007. Thus decision to do something scheduled to be
taken on 31.05.2007 was taken on a subsequent date of June 2007.
xxxix. Hon'ble High Court vide order dated 25. 06.2007 in CWP no. 6734/2000
directed that demolition is to be carried out by proper verification and in due
compliance of law.
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xl. No report of demolition of suit property is there in the report dated 26.05.2007
in respect of demolition of suit property.
xli. In the minutes of meeting of 12.06.2007, there is not a whisper about act of
demolition having been already carried out on 23 to 30 May, 2007 under the
signatures of defendant no.9 and on few days under signatures of defendant
no. 8 and 9. Nor there is any reference to the meeting of aforesaid meeting of
22.5.2007 or 23.5.2007 or the demolition of the suit property having already
been done much prior to the said meeting.
xlii. The minutes begin with : "Today's meeting has been called in view of the order
dated 9.05.07 and subsequent orders passed by Hon'ble High Court in CWP
no. 6734 of 2000 titled as Rajiv Malhotra vs UOI & ors relating to
unauthorised constructions in Sainik Farms. In terms of the said orders, action
has to be taken by the MCD in respect of 21 properties where reconstruction is
carried out by the owners/occupier after the passing of the order dated 12.
01.2001."
xliii.Thus there is no mention of the action having been taken already in respect of
any of these 21 properties despite the earlier meeting of 22.5.2007 having been
attended by defendant no. 4, to 9 who had attended the meeting of 12.06.2007
as well and the demolition carried on by defendant no. 1 under signatures of
defendant no. 9 or at times under signatures of defendant no. 8 and 9.
xliv.It has been further recorded in those minutes that: "It has been decided that
MCD would take action in respect of those 21 properties where the court
appointed committee had given its report after visiting the said property on
14.01.2001/20.01.2001. The reconstructions, if any, have to be demolished
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by the MCD on the basis of the report/photographs submitted by the committee
to the court in terms of the order dated 12. 01.2001." The minutes are so
worded so as to show that the meeting dated 12.06.2007 is the first meeting to
decide the modalities of demolition of 21 properties in respect of
reconstructions if any. So number of properties whose reconstruction was to
be demolished is not less than 21 despite the report of demolition from
23.05.2007 to 30.05.2007.
xlv. Even in the Joint Inspection Report of the Committee appointed by the Hon'ble
court on 09.05.2007, there is no reference of meeting of 21.05.2007 or
22.05.2007 or any demolition of any property or part of property out of the 21
properties carried out by defendant no. 1 or its officials in the month of May
2007 or decision of defendant no. 4 to 9 of waiving of provision of Section 343,
344 and 345 A of DMC Act.
xlvi. Section 1(3) of Delhi Laws (Special Provisions) Act 2006 provided that it
shall cease to have effect on the expiry of one year from the date of its
commencement, except as respects things done or omitted to be done
before such cesser, and upon such cesser section 6 of the General
Clauses Act, 1897 (10 of 1897), shall apply as if this Act had then been
repealed by a Central Act.
xlvii. Section 6 of the General Clauses Act reads as:
6. Effect of repeal
Where this Act, or any Central Act or Regulation made after the
commencement of this Act, repeals any enactment hitherto made or
hereafter to be made, then, unless a different intention appears, the repeal
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shall not
(a) revive anything not in force or existing at the time at which the repeal takes
effect; or
(b) affect the previous operation of any enactment so repealed or anything duly
done or suffered thereunder; or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred
under any enactment so repealed; or
(d) affect any penalty, forfeiture or punishment incurred in respect of any
offence committed against any enactment so repealed; or
(e) affect any investigation, legal proceeding or remedy in respect of any such
right, privilege, obligation, liability, penalty, forfeiture or punishment as
aforesaid.
xlviii. The Delhi Laws (Special Provisions) Act 2006 was further extended by the
name of The National Capital Territory of Delhi Laws (Special Provisions) Act
2007 and section 1 (3) of the same provides It shall be deemed to have come
into force on the 19th day of May, 2007.
59. It is important to refer to the proceedings of year 2000 as the demolition of the suit
property carried out in the year 2007 derives its origin from the demolition
proceedings of the defendant no. 1 in respect of the suit property in the year 2000
and also in view of all the defendants taking a stand that the suit property was
demolished in compliance of order of Hon'ble High Court dated the 9.05.2007
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passed in WP(C) 6734/2000.
60. The following facts have been admitted by the defendants which are even
otherwise part of judicial record of WP© no. 6734/2000 titled Rajeev
Malhotra versus Union of India and others:
The house of one Sh. Rajeev Malhotra was completely demolished by MCD
leading to filing of WP(C) no. 6734/2000 titled Rajeev Malhotra versus
Union of India and others through Sh. Rajeev Awasthi advocate who
was appointed Amicus Curiae alleging pick and choose attitude of MCD
officials regarding demolition of his house and seeking demolition of other
houses of the colony.
Sainik Farm is an unauthorised colony and Rajeev Malhotra had specifically
pleaded that officials of MCD had allowed him to construct his building as he
had paid bribe to them and later demolished his building and therefore he filed
the said petition.
The plaintiff was not a party to the writ petition WP( C ) 6734/2000.
Allegations of pick and choose were made against MCD, defendant no. 1 in the
present suit, in the said petition as well as M/s Prayas vs UOI and
others, CWP No. 4479/2001 as well as in the present suit.
In CWP no. 6734 of 2000, the petitioner Rajeev Malhotra had filed CM no. 232
of 2002 where he had submitted that a fullfledged building is under
construction having no. H20, W-10 Z Lane in Sainik Farm with the connivance
of police officials in MCD and the concerned owner had already paid ₹ 5 lakhs
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to the officers for raising construction and total money is to be paid to the MCD
and Delhi police of ₹ 15 lakh and even today the person who was to raise the
construction is allowed to raise the construction by the local police and MCD
officials in case their demands are met. The said application was filed on
5.01.2002.
61. In the present suit also, the plaintiff has stated that defendant no. 8 to 10 had
demanded bribe of ₹ 5 lakh from him which he refused to give and therefore his
whole house i.e. the suit property had been demolished. The submissions of the
plaintiff inspire confidence substantiated by similar submissions by Mr Rajeev
Malhotra in CWP no. 6734 of 2000 who specifically pleaded that his house before
demolition was allowed to be constructed by MCD officials as he had paid bribe to
them as well as allegations of pick and choose were made against MCD, defendant
no. 1 in the present suit, in the said petition as well as M/s Prayas vs UOI
and others, CWP No. 4479/2001 as well as in the present suit.
62. These observations are important as this court will be shying away from its duty if it
shuts its eyes or rejects these submissions by presuming them to be incorrect as
that might amount to perpetrating the wrong committed by the officers/officials of
MCD whereby they allow unauthorised things to continue by accepting illegal
gratification. The plaintiff has specifically submitted that on 20 May 2007, defendant
no. 8 to 10 visited the suit property and demanded ₹ 5 lakhs as bribe. The act of
demanding money by the officers of defendant no. 1 cannot be proved by leading
evidence as such demands are raised behind the closed doors and there being no
chances of anybody witnessing the raising of the demand and therefore can only
be proved by the prevailing circumstances at the relevant time and the subsequent
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developments thereafter.
63. The facts narrated below are also admitted facts.
In the proceedings of the said writ petition dated 12.01.2001, learned counsel
for the petitioner, petitioner being Rajeev Malhotra submitted that according to
the affidavit of US Chauhan, Jr Engineer (Building), South Zone, MCD, Green
Park, New Delhi 21 properties had been demolished. In the said list, the
property of Shri Rajeev Malhotra (demolished on 30.10.2000) as well as the
property of the plaintiff i.e. the suit property (demolished on 09.12.2000 and 21.
12. 2000) are also mentioned.
However learned counsel for petitioner(Rajeev Malhotra), Rajiv Awasthy stated
that according to his information, these properties have not been demolished
but merely some parts of the properties had been punctured.
In order to test his submissions and to find out whether or not the assertions
made in the affidavit of Mr US Chauhan are correct, Hon'ble High Court of
Delhi appointed a committee of 4 members namely Mr Rakesh Tikku, Mr Sunil
K. Jain, Mr Rajiv Awasthy and Mr Ashok K. Mahajan all being lawyers.
In accordance with the orders of Hon'ble High Court of Delhi dated 12.01.2001,
the Committee of 4 lawyers filed a status report dated 23.01.2001 confirming
that the suit property was not demolished completely though stated in the
report of U.S. Chauhan and the front canopy and structure beneath of the suit
property had been demolished. The said report is supported with the
photographs placed by the committee on the record of said petition.
Mr. U.S.Chauhan (JE) MCD and Mr. R.S. Sehrawat (JE) MCD were held liable
for committing contempt of court for filing false affidavits and taking liberties
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with truth in order to mislead the Hon'ble High Court and the contempt was
held to be of such a nature that it tends to substantially interfere with the due
course of justice. Both of them were sentenced to undergo simple
imprisonment for a period of 30 days and to pay a fine of Rs. 25,000 each vide
order dated 01.06.2001.
The demolition carried out in the mentioned 21 properties in the year 2000 was
carried out without serving any notice under section 343 and 344 of DMC Act.
The report of Committee of 4 Lawyers did not give its report in respect of
properties bearing no. 37 E, 37 C, 559 A, K 250 and J 250, Sainik Farm.
Property bearing no. 37C is the address of the petitioner i.e. Rajeev Malhotra.
The status report dated 23 January 2001 has been described as interim report
of Committee of 4 lawyers and they submitted that the final report may take
longer time for which the sort time of 4 weeks for completing the job assigned
to it. No such final report was filed by the committee and the committee
clandestinely deleted the property of the petitioner Sh. Rajeev Malhotra from
the properties in respect of which the Committee had to file its report.
The committee had further observed that the houses which had been
demolished had been chosen selectively without any basis which reveals
the malafide of the defendant no. 1 because since the beginning i.e. year 2000
when the property of the plaintiff as well as of other 20 persons were selected
for demolition the same was selected without there being any basis.
Defendant no. 1 did not bring it to the notice of Hon'ble High Court in respect of
deletion of some of the properties by the committee of 4 lawyers in their status
report out of which one property was the property of the petitioner i.e. Rajeev
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Malhotra.
It is to be noticed that defendant no. 5, Sh. S.K.Jha filed Action Taken Report
by way of his affidavit on behalf of defendant no. 1 MCD on 27.02.2007 and
only submitted that property no. H 541 and 49 were also included in the report
of the committee but did not mention about addition of 2 properties bearing
no.173, J 208 B which were not the subject matter of the affidavit of US
Chauhan as well as by keeping silent and not insisting for filing of final report to
be submitted by Committee of 4 lawyers at any stage before Hon'ble High
Court of Delhi despite the matter being pending till 11.02.2010 i.e. for more than
9 years.
64. The plaintiff has submitted that the suit property was constructed many years ago
by his late father and that the plaintiff along with his wife and son is jointly the
lawful owner of the suit property. The plaintiff has further submitted that on
21.12.2000 only the front canopy and the structure beneath the canopy of the suit
property was demolished by defendant no. 1 without any prior notice under
mandatory Sections 343,344 and 345A of DMC Act.
As already observed, absence of good faith and existence of malafide as well as
the fact of officers of defendant no. 1 extracting money for allowing construction of
the properties in Sainik Farms can only be proved by the relevant circumstances
and thus establishing of the same does not require any trial.
65. It is an admitted case that in the year 2000, whole of the suit property was not
demolished and only the front canopy of the suit property and structure
beneath had been demolished.
66. It is also an admitted case that in the year 2000, the demolition carried out in
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the 21 houses, the suit property being one of them, mentioned in the affidavit
of US Chauhan was carried out without any prior notice under mandatory
Sections 343,344 and 345A of DMC Act.
67. There was no selection criterion for those 21 properties. This court also asked
repeatedly defendants more particularly defendant no.1 to produce the
documents/reports which were the basis of identification of those 21 properties by
defendant no. 1 which were demolished by defendant no.1 and that too without
giving notice under section 343 of Delhi Municipal Corporation Act, 1957. However
defendant no. 1 as well as other defendants failed to file/produce any such
document/minutes of meetings/report
68. The documents which have been filed by defendant no. 1 in respect of the same
are of year 2001 while the 21 properties which were demolished by defendant no. 1
were demolished in 2000 and Committee of 4 lawyers have specifically reported
that houses which had been demolished in 2000 had been chosen selectively
without any basis.
69. Not giving of the statutory notice under section 343 of Delhi Municipal
Corporation Act, 1957 coupled with absence of placing anything on record to
show as to how these properties were identified when allegedly all the
constructed properties in the Sainik farms are unauthorized clearly
demonstrate absence of good faith on part of defendant no. 1 and also that
demolition of the 21 properties was not done under Delhi Municipal
Corporation Act, 1957 Act or Rules, Regulations or Byelaws made
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thereunder.
70. In view of the observations made hereinbefore and from the documents filed by the
plaintiff, it stands established that suit property as well as the other 20 properties
were demolished in the year 2000 by defendant no. 1 unauthorizedly and the
demolition of the suit property was not done in good faith nor the demolition was
carried out in respect of any act done or purporting to have been done in
pursuance of the Act or Rules, Regulations or Byelaws made thereunder.
71. As already observed, it was necessary to refer to the proceedings of year 2000 for
determining the legality/validity of the demolition of the suit property carried out in
the year 2007 since the same derives its origin from the demolition proceedings of
the defendant no. 1 in respect of the suit property in the year 2000.
72. Now it remains to be seen whether the plaintiff has been able to make out his case
of decreeing the suit on the basis of admissions made by the defendants in
pleadings or the documents pertaining to the defendants or both.
Issue no. 1.
Whether the present suit is barred under section 477/478 of
DMC Act? OPD
Issue no. 2. Whether the present suit is bad on account of misjoinder of
parties? OPD
Issue no. 3. Whether the present suit is barred under Order VII Rule 11 CPC
for want of action? OPD (it should have been want of cause of action)
These three issues are interconnected and have been taken up together. All the
defendants have submitted that jurisdiction of this court is barred under section 477
and 478 of DMC Act as the impugned act of demolition was carried out by them in
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Page No.41 of 102
compliance of directions of Hon'ble High Court dated 9.05.2007 and the other
subsequent orders and that they are not liable for the same in view of the protection
granted to them under section 477 of DMC Act. Defendant no. 3 to 10 have
submitted that they cannot be sued/held personally liable for these facts for the
same reason. They have also contended that no cause of action accrues in favour
of the plaintiff as the demolition of the suit property was carried out in compliance
of directions of Hon'ble High Court and there is no force in the assumption of the
plaintiff that the same was carried out by them with mala fide intention/motives
because of nonpayment of illegal gratification by the plaintiff to them or either of
them.
73. The order relied upon is order dated the 9.05.2007 passed by Hon'ble High Court
of Delhi in WP(C)No. 6734/2000 Rajeev Malhotra versus Union of India
and others. Defendants have submitted that vide said order, the Hon'ble High
Court categorically directed the defendant no.1 Corporation to, inter alia, demolish
all illegal and unauthorised construction in Sainik Farms colony immediately. It has
been submitted that therefore action taken by the defendants and more specifically
defendant no. 3 against unauthorised construction was bonafide as well as in
accordance with law as per directions of Hon'ble High Court.
74. Defendant no. 3 has submitted that at the time of the demolition he was designated
as Commissioner, MCD and further in discharge of his official duties, the defendant
no. 3 acted as per the directions of Hon'ble High Court of Delhi and the defendant
corporation. Impugned actions of defendant no. 3 were completely bonafide and in
compliance of the directions of the Hon'ble High Court and that the same was in
furtherance of his official duties towards the defendant corporation in the capacity
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Page No.42 of 102
of Commissioner, MCD. Further, the plaintiff has made severe allegations against
the defendants in respect of being corrupt and has alleged that the defendants for
their private interest had demolished his house without demolishing at the house of
the same area however no proof has been placed on record by the plaintiff in
respect of these false averments.
75. Therefore action taken by the defendants and more specifically defendant no. 3
against unauthorised construction was bonafide as well as in accordance with law
as per directions of Hon'ble High Court. The suit is bad for misjoinder of parties as
defendant no. 3 to 10 discharged their official duties only and never gave any
directions nor committed any act in their personal capacity.
76. Defendant No. 6 has submitted that the plaint does not disclose any cause of
action against him and the same is barred by time. There is no averment against
defendant no. 6 in the plaint who was the Chief Law Officer in MCD and had not
done any act or given any opinion for the demolition of the premises of the plaintiff
except for complying with the orders of the Hon'ble High Court of Delhi in true
spirit. Accordingly there is no categorical averment either in the plaint or the
documents available on record to establish the grievance of the plaintiff. Impugned
actions of defendant no. 3 were completely bonafide and in compliance of the
directions of the Hon'ble High Court and that the same was in furtherance of his
official duties towards the defendant corporation in the capacity of Commissioner,
MCD. Similar have been the submissions of defendant no. 4.
77. Defendants 3, 4 and 6 have also contended that notice required under section 80
CPC was not given to the defendant no. 3, 4 and 6. The suit is bad for misjoinder of
parties as defendant no. 3 to 10 discharged their official duties only and never gave
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Page No.43 of 102
any directions nor committed any act in their personal capacity.
78. Defendant No. 3 and 4 have submitted that the plaintiff has committed contempt of
order of Hon'ble High Court dated 03.11.1999 by reconstructing the demolished
part by relying on List of Dates of Events of WP no. 479/2001 filed by son of the
plaintiff wherein he submitted that on 6.4.2000, the petitioner, therefore,
commenced reconstruction of his plot.
79. The said directions have been quoted by defendant no. 3 and 4 in their reply to the
present application and read as:
"Accordingly, with immediate effect, we restrain all concerned from carrying out any
construction activities in unauthorised colonies. We make it clear that not only the
persons namely the owner of the unauthorised construction but others also who aid
and assist the unauthorised construction particularly the bidders, constructors,
architects, concerned Jr engineer and SHO would be severely dealt with in case of
unauthorised construction activities in violation of this court as noticed. Besides,
the officers would also be liable for departmental action. It will be expected from
the government to take immediate departmental action against their officers in case
it is found that within the area of their jurisdiction, unauthorised construction work
was being undertaken. The Government of the National Capital Territory of Delhi is
directed to give due publicity to the aforesaid directions.
We again reiterate that till the matter of regularisation is finalised, no further
construction of any nature would be undertaken in any of the unauthorised colonies
in Delhi and the person/persons violating the directions will have to face the
consequences.
..... (Emphasis added)."
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80. Defendant no. 3 and 4 have nowhere specified as during which petition this
direction was issued and as to how son of the plaintiff or the plaintiff was aware of
the same because on perusal of the record of WPC no. 6734/2000 it is noticed that
the proceedings commenced in the said writ on 9.11.2000. Thus there is no force in
this submission of the Defendant No. 3 and 4.
81. Section 477 of DMC Act reads as:
477. No suit or prosecution shall be entertained in any court against a Corporation
or against any municipal authority or against municipal officer or other municipal
employee or against any person acting under the order or direction of any
municipal authority or any municipal officer or other municipal employee, for doing
anything which is in good faith done or intended to be done, under this Act or
Rules, Regulations or Byelaws made thereunder.
82. Defendants have placed reliance on GC Sharma vs. MCD, Hon'ble High
Court of Delhi, judgment dated 24.8.1979 in the matter of RFA no. 115D of 1966. In
the said matter, the appellant had obtained a license from the Corporation in month
of March 1962 which was in force up to end of September 1962. In 1962 the
appellant submitted plans for construction of a church on behalf of Delhi Diocesan
Trust Association, which were rejected and on 31 July 1962, he was asked to
explain why disciplinary action should not be taken against him for submitting
plans contrary to byelaws and causing unnecessary harassment to Delhi Diocesan
Trust by his carelessness. To the proposed action he protested. The upshot of
these proceedings was that the Corporation cancelled his license on August 30,
1962. The appellant applied for renewal of his license but Corporation refused to
renew the license on October 31, 1962. Having failed to obtain redress at the hands
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Page No.45 of 102
of the corporation, the appellant filed a writ petition in the circuit bench of Punjab
High Court at Delhi under Article 226 of the Constitution (CW 800 - D of 1962). On
March 24, 1963 the Hon'ble High Court allowed the writ petition and quashed the
order of cancellation of the license. The Corporation thereafter renewed the
appellant's license.
83. On January 23, 1964 the appellant bought a suit against the Corporation, the
Commissioner and that the Deputy Commissioner impleadig them as Respondent
No. 1 to 3 to recover the sum of ₹ 3, 04, 020 which he said was the damage he had suffered under three heads (1)loss of reputation and mental agony.. ₹ 1 lakh (2) loss of business and deprivation of the right to carry on profession from 30.8.19 62 to 23.7.1963... ₹2 lakhs (3) expenses in filing and conducting the writ petition ₹4,020.
84. Since Learned subordinate judge dismissed the suit by holding that the same is time barred having been filed beyond six months of cancellation of the license, the appellant preferred the appeal and the Hon'ble High Court after referring to provisions of section 430 of DMC Act (which provides that license may be granted by the Commissioner or by an officer empowered to grant the same on payment of fees), Section 477 and 478 of DMC Act, explained the object of section 478 and meaning of the words "purporting to have been done in pursuance of this Act "
under section 478 of DMC Act.
85. Defendant no. 3, 4 and 6 have referred to various paragraphs of the said judgment. A perusal of the same reveals that those are not the findings of the Hon'ble court in the said matter but are the reproductions of the contentions of the learned counsels for parties and the said matter.
CS No. 5984/16Ashok Sikka Vs. SDMC & Ors.
Page No.46 of 10286. It was observed that "Section 478 applies only to a definite class of persons and only for definite class of action. The persons entitled to the protection of the Act are (1) municipal authorities (2) municipal officers and (3) municipal employees or (4) persons acting under the order or directions of the foregoing. The protection aforesaid by the section is limited "to any act done or purporting to have been done, in pursuance of this Act, rule, regulation or byelaw made thereunder".
"A public official can only be said to act or purport to act in pursuance of an enactment, if his act is such as to lie within the scope of statutory powers and duties."
Similarly in the matter of Surat Singh versus Municipal Corporation of Delhi, vide dated 21 July 1988, while deciding R.S.A. No. 244 of 1973, the term good faith as defined in section 3(22) of General Clauses Act applies to all Central Acts including the DMC Act. Under this section "I think shall be deemed to be there in good faith where it is in fact done honestly, whether it is done negligently or not." Whether nothing has been done honestly of the question of fact to be determined with reference to the circumstances of a particular case... There is no presumption of law that of shellac have been regularly performed when the act itself is shown on the face of it to be unauthorised or not legal and in such cases the defendant cannot take shelter under the provisions of section 477 of DMC Act.
87. It was held in the said case that there was a positive public duty on the Corporation to grant license. To this end the public authority is clothed with statutory powers contained in section 430 of the Act. This case, the instant one, is just such a case. The act complained of falls within the words of the statute and not CS No. 5984/16 Ashok Sikka Vs. SDMC & Ors.
Page No.47 of 102outside them.
88. What is relevant to be observed in the said findings of the court are:
A person acting under statutory powers may erroneously exceed the powers given by a statute yet he is acting or purporting to act in pursuance of the statute. In strictness, anything not authorised by statute could not be "in pursuance" of it whilst if authorised it would need no other protection.
89. In the case of R.R. Gautam and another versus State and another, Crl. Petition no. 160/2004 (Relied upon by the defendants), the Hon'ble Delhi High Court while deciding the issue on protection of offices of MCD under section 477 of the DMC Act has categorically held as follows:
"The effect of the aforesaid provision is that such protection shall be made available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act."
90. Section 478 of DMC Act reads as:
478.(1) No suit shall be instituted against a Corporation or against any municipal authority or against any municipal officer or other municipal employee or against any person acting under the order or direction of any municipal authority or any municipal officer or other municipal employee, in respect of any act done, purporting to have been done, in pursuance of this Act or Rules, Regulations or Byelaws made thereunder until the expiration of 2 months after notice in writing has been left at the municipal office and, in the case of such officer, employee or person, unless notice in writing has also been delivered to him or left at his office or place of residence, and unless such notice states explicitly the cause of action, the CS No. 5984/16 Ashok Sikka Vs. SDMC & Ors.Page No.48 of 102
nature of the relief sought, the amount of composition claimed, and the name and place of residence of the intending plaintiff, and unless the plaint contains a statement that such notice has been so left or delivered. (2) No suit, such as is described in subsection (1) shall unless it is a suit for recovery of immovable property or for a declaration of title thereto, be instituted after the expiry of 6 months from the date on which the cause of action arises. (3) Nothing in subsection (1) shall be deemed to apply to a suit in which the only relief claimed is an injunction of which the object would be defeated by the giving of the notice or the postponement of the institution of the suit.
91. A perusal of section 477 and section 478 of DMC Act reveals that their applicability is attracted to a suit filed "in respect of any act done or purporting to have been done in pursuance of the Act or Rules, Regulations or Byelaws made thereunder and that too for anything which is done in good faith done or intended to be done under this Act or Rules, Regulations or Byelaws made thereunder.
92. Thus it becomes necessary to see in the facts of the case whether demolition of the suit property by the defendants has been carried out/done in good faith and that too under DMC Act or Rules, Regulations or Byelaws made thereunder.
93. Defendants have submitted that the present suit is not maintainable due to non compliance of provisions of section 478 of DMC Act 1957. They have further submitted that present case has been filed in May 2010 for alleged wrongful demolition of substantial part of the property of the plaintiff on 23.05.2007, 24.05.2007, 25.05.2007, 30.05.2007 i.e. just before the expiry of 3 years time and therefore the present suit is time barred in terms of provisions of subsection (2) of section 478 of the DMC Act and thus the present suit is liable to be dismissed CS No. 5984/16 Ashok Sikka Vs. SDMC & Ors.
Page No.49 of 102being time barred having been filed beyond the limitation period prescribed of 6 months in the said section.
94. While the defendants have submitted that the bonafide of the defendants in the present case can only be determined after due trial of the suit, however plaintiff has argued that the defendants have not acted in good faith in carrying out the demolition of the suit property nor the same was done in accordance with the Act or Rules, Regulations or Byelaws made thereunder.
95. It is pertinent to note that the plaintiff has filed the present application on the basis of documents procured by him from the office of defendant no. 1 under RTI applications and by relying on the proceedings of the litigations in respect of the suit property and with the help of these documents the plaintiff has submitted that the act of demolishing his house i.e. the suit property has been carried out malafidely by the defendants and not in accordance with Act or Rules, Regulations or Byelaws made thereunder.
96. Thus it has to be seen from the factual matrix of the case whether on the basis of documents procured by the plaintiff from the office of MCD, defendant no. 1, as well as from the other litigations filed by him against the MCD and others, the plaintiff has successfully established clearly and unequivocally that the defendants did not act in good faith and that they did not act in accordance with Act or Rules, Regulations or Byelaws made thereunder in respect of demolition of the suit property so as to take out this suit from the applicability/ambit of section 477 and 478 of DMC Act.
97. As observed earlier, not giving of the statutory notice under section 343 of Delhi Municipal Corporation Act, 1957 coupled with absence of placing CS No. 5984/16 Ashok Sikka Vs. SDMC & Ors.
Page No.50 of 102anything on record to show as to how these properties were identified in 2000 when allegedly all the constructed properties in the Sainik farms are unauthorized clearly demonstrate absence of good faith on part of defendant no. 1 and also that demolition of the 21 properties in the year 2000 was not done by defendant no.1 under Delhi Municipal Corporation Act, 1957 Act or Rules, Regulations or Byelaws made thereunder.
98. At this stage it is relevant to note the findings of Ld. MM Samar Vishal, passed in State vs Rajeev Malhotra vide order dated 21.06.2012, FIR No. 424/00. When the front canopy and the area lying underneath was demolished in 2000, it was at that time as a part of the same proceedings that whole house of Mr. Rajeev Malhotra was demolished despite payment of illegal gratification by him to officials of MCD from initiation of construction. In this order it has been observed that MCD demolished house of Sh. Rajeev Malhotra in 2000 without any notice under Section 343 of DMC Act. The Ld Judge observed that :
"There is no order of demolition by any officer of the MCD which is required in view of section Section 343 of Delhi Municipal Corporation Act, 1957. There are no documentary evidence of any other proceeding whereby the present building decided to be demolished by the MCD".
99. The copy of this order has been filed by the plaintiff along with additional written submissions on behalf of the plaintiff in respect of application under order XII rule 11 CPC filed on 14 September 2017. The order was passed in the trial of the accused Rajeev Malhotra upon the police report filed by PS Ambedkar Nagar under section 186/353/332 IPC.
CS No. 5984/16Ashok Sikka Vs. SDMC & Ors.
Page No.51 of 102100. The case of the prosecution was that the accused Rajeev Malhotra on 30.10.2000 at 37C, Sainik Farms obstructed Jr Engineer US Chauhan who was performing his public duties. He also manhandled him and punched him on his chest with the intention to prevent him from discharging his duties. The learned court observed that the allegations of assault are not corroborated by any kind of testimony from the witness of police Department who were present at the spot.
101. Learned court observed that the 1st thing which the prosecution has to prove is that the complainant U.S. Chauhan was performing his public duty. It can be presumed that the demolition work of MCD is a public duty but criminal law does not allow the facts to be settled on the basis of presumptions. If the complainant U.S. Chauhan was performing a public duty then the prosecution should have produced evidence to that effect. Whenever the building has to be demolished which is unauthorizedly constructed, a notice has to be given to the person. No such notice has been proved on record. There is no order of demolition by any officer of the MCD which is required in view of section 343 of Delhi Municipal Corporation Act, 1957. There was no documentary evidence of any other proceeding whereby the present building was decided to be demolished by the MCD. The accused, Rajeev Malhotra, was acquitted of the offence with which he was charged. However it is to be noticed that even Rajeev Malhotra admitted that he had been paying money to officers of MCD, defendant no. 1, so that he could carry on the construction in his property.
102. The following are again the admitted facts contained in the documents filed by the parties as well as the written statement of defendant no. 1, 4 to 10 as well as in the reply of all the defendants except defendant no. 2 in response to the CS No. 5984/16 Ashok Sikka Vs. SDMC & Ors.
Page No.52 of 102present application A show cause notice under Section 343/344 and for 345A of DMC Act, dated 22.02.2007 had been served by MCD upon the son of the plaintiff which was duly replied by his son on 26.02.2007.
Son of the plaintiff mentioned that the suit property is protected under Delhi Laws ( Special provisions) Act 2006 which bars any punitive action by civic authorities and status quo was to be maintained. The above mentioned Sections of DMC Act were suspended by the Parliament statute. The son of the plaintiff also relied on minutes of meeting held on 30.04.2003 under the Chairmanship of Hon'ble Chief Secretary of Delhi, regarding issues relating with Sainik farms where it was recorded as under: "7.Principal Secretary (UD), government of NCT of Delhi stated that on the basis of records it has been a consistent policy of government of NCT of Delhi that it is not in favour of demolition of unauthorised construction and Sainik Farms but in favour of regularisation of unauthorised colonies including Sainik Farms......" MCD/defendant no. 1 issued show cause notice vide file no. 49/B/UC/S Z/07 dated 22.02.2007 under section 344 (1) and 343 of DMC Act 1957 (page no. 396 of plaintiff's documents volume II) where it was stated that the unauthorised construction at ground floor and 1st floor which was earlier demolished on 9.12.2000 is being erected and the undersigned (Assistant Engineer Defendant No. 9, Sh. Anil Kumar) has been directed to immediately stop the same. It was also stated that if the alleged unauthorised construction was not stopped immediately on receipt of notice, further action would be taken under section 343 and 344 (2) and 345 A without any further notice.
CS No. 5984/16Ashok Sikka Vs. SDMC & Ors.
Page No.53 of 102 Another show cause notice bearing no. the2594/DC/SZ/Bldg./2007 dated 22.02.2007 issued by the Deputy Commissioner, defendant No. 5 Sh. S.K.Jha South Zone (page no. 436 of plaintiff's documents Volume II) was served alleging that the unauthorised construction of ground floor and 1st floor which was earlier demolished on 09.12.2000 has been completed. In one of these notices, the one which was given by defendant no. 9, it was stated that the construction work was being carried out and the plaintiff was directed to stop the same immediately while in the other notice, given by defendant no. 5 it was stated that the construction had been completed. It is pertinent to note that both the notices are of the same date. The plaintiff has filed on record the Action Taken Report filed by way of an affidavit dated 27.02. 2007 on behalf of defendant MCD(Page no. 333 to 341 of Plaintiff's documents, Volume 1). The affidavit is of Sh. S.K. Jha, the defendant no. 5 and has been filed in WP (C) no. 6734/2000 titled Rajeev Malhotra versus Union of India and others. In para 5 of his affidavit, Defendant No. 5 has deposed that the official of the MCD conducted inspection of all these properties and the status of the property was given. Defendant No. 5 has deposed that the suit property "consists of ground floor and 1st floor, which are old and occupied. During site inspection neither any sort of construction work has been seen in progress nor any building material was found stacked there."
103. The malafide of the defendant no. 5 and defendant no. 9 as well as of defendant no. 1 is brought to light in view of the fact that the show cause notices have been issued in respect of alleged erection of unauthorised construction at ground floor and 1st floor which was earlier demolished on 9.12.2000 whereas it is CS No. 5984/16 Ashok Sikka Vs. SDMC & Ors.
Page No.54 of 102the admitted fact in view of the report of Committee of 4 lawyers dated 23.01.2001 that only the front canopy and the area lying underneath was demolished by MCD. Thus the giving of the show cause notices in respect of alleged unauthorised construction being in progress in respect of ground floor and 1st floor stated to be demolished on 9.12. 2000 demonstrates the malafide on part of the defendant no. 1, defendant no. 5 and defendant no. 9 as the same were never demolished by MCD on 9.12.2000.
104. On perusal of record of WP (C) no.6734/2000, it is noticed that vide order dated 14.2.2007, Hon'ble High Court directed the Commissioner of MCD to be personally present in the court on the next date along with action taken report which would also indicate whether any construction or repair had been made in the properties which were allegedly demolished by MCD. MCD was directed to file the said report after verification and inspection. Thus admittedly the suit property had been inspected on a date later than 14.02.2007 and it was specifically noticed that the suit property is old and occupied as well as it was noticed during site inspection that neither any sort of construction work had been seen in progress nor any building material was found stacked there, then what was the basis of the notices sent by Defendant No. 5 or defendant no. 9 dated 22.2.2007 to the plaintiff under section 343 or section 344 or section 345 A of DMC Act alleging the construction work to be in progress/completed by son of the plaintiff.
105. This observation clearly points towards malafide of the defendant no. 1, defendant no. 5 and defendant no. 9 in giving notices dated 22.2.2007 to the plaintiff.
106. It is further noticed that in para 6 of the affidavit, Defendant No. 5 has CS No. 5984/16 Ashok Sikka Vs. SDMC & Ors.
Page No.55 of 102deposed that defendant no. 1, MCD has issued notices under section 344 of DMC Act, 1957 for demolition and sealing of the properties wherein unauthorised construction in the shape of repairs/constructions of the portions demolished by MCD earlier had been carried by the occupants followed by the details of the properties for which the said notice had been given which included suit property at serial no. 5. It has been further submitted that defendant no. 1 has initiated sealing action under section 345A of DMC act 1957 against these properties i.e. suit property as well.
107. It is noticed that this affidavit (Page no. 333 to 341 of Plaintiff's documents, Volume 1) is of 27 February 2007 and at the relevant time, Delhi Laws ( Special Provisions) Act (Act No. 22) 2006 had come into force with effect from 1 January 2006 which specifically mandated that notwithstanding any judgment, decree or order of any court, status quo as on 1 st day of January 2006 shall be maintained in respect of the categories of unauthorised development and that all notices issued by any local authority for initiating action against the categories of unauthorised development shall be deemed to have been suspended and no punitive action shall be taken during the said period of one year. Punitive action has been described in the said Act as "punitive action" means action taken by local authority under the relevant law against unauthorised development and shall include demolition, sealing of premises and displacement of persons or their business establishment from the existing location, whether in pursuance of court orders or otherwise. In view of the said mandate, defendant no. 1 or defendant no. 5 or 9 could not have initiated sealing action against the suit property or any other property. However defendant no. 1 and other officers of defendant no. 1 acted in violation of the CS No. 5984/16 Ashok Sikka Vs. SDMC & Ors.
Page No.56 of 102mandate of Delhi Laws (Special Provisions) Act (Act No. 22) 2006.
108. This observation also shows malafide on the part of defendant no. 1 and defendant no. 5 and 9 in respect of issuance of show cause notices dated 22.02.2007 to the plaintiff. The plaintiff has filed certified copy of counter affidavit filed on behalf of SDMC dated 15 May 2014 in the matter titled Paradarshita Public Welfare Foundation (N.G.O.) vs. Commissioner, SDMC and anr, WP (C ) No. 1145 of 2014 where in subpara (viii) of para 8 it has been deposed that construction existing prior to 7.2.2007 is protected under the provisions of Government of NCT of Delhi Laws (Special Provision) second Act 2011 and no punitive action can be taken by SDMC. In para 10 of the same affidavit, it has been deposed that SDMC has to keep in mind Government of NCT of Delhi Laws (Special Provisions) second Act 2011 as construction existing prior to 7.2.2007 is protected under the said Act.
109. Whatever has been observed so far demonstrates that defendant no. 1, 5 and no. 9 were acting malafidely from the stage of giving of notices dated 22.02.2007 under section 343, 344 and 345 A of DMC Act to the plaintiff.
110. The following are also admitted facts:
Son of the plaintiff specifically stated in his reply to notices sent by defendant no. 5(page no. 416 of Plaintiff's documents volume II) and defendant no.9 (page no. 354 of Plaintiff's documents volume II) both dated 26.02.2007 that no unauthorised construction of ground floor and 1st floor has been done since 09.12.2000.CS No. 5984/16
Ashok Sikka Vs. SDMC & Ors.
Page No.57 of 102 Son of the plaintiff had also stated that Delhi Laws (Special Provisions)Act has been enacted by the Parliament to give protection to the construction which has been raised on or before 01.01.2006 and has overriding effect on all orders or notices issued by the MCD in this regard and therefore no action can be taken by the MCD in respect of the existing construction in suit property. Son of the plaintiff requested MCD/defendant no. 1 to kindly withdraw the show cause notice dated 22.02.2007.
The plaintiff has placed on record the hearings of the Deputy Commissioner(SZ), SK Jha, Defendant No. 5, dated 5 March 2007 (page no. 398 of Plaintiff's documents volume II) which specifically recorded that co owner is willing to give an affidavit that no additions have been carried out in the building beyond what was existing before the 9.12.2000 except the reconstruction of demolished portion and the case was adjourned to 15 March 2007. However the plaintiff or his son did not attend the hearing on the said date. On 10th April, 2007 (page no. 400 of Plaintiff's documents volume II), son of the plaintiff submitted an application that he was out of country and that his father would attend subsequent hearings.
On next date of hearing, that is 16 April 2007(page no. 401 of Plaintiff's documents volume II), the plaintiff was heard again by defendant no. 5, in view of Special Power of Attorney given in his favour by his son the plaintiff submitted the affidavit regarding demolition/action taken against his property and the partial reconstruction of the building subsequently. He further stated that no further construction had been made beyond what was existing in the plan of the building. It was recorded thereafter by the Deputy Commissioner CS No. 5984/16 Ashok Sikka Vs. SDMC & Ors.
Page No.58 of 102(SZ), defendant no. 5 that "The case is reserved for orders." Till the date of filing of the suit and even as on date, no orders had been received either in relation to the proceedings of notice under section 343/344 proposing demolition or the separate proceedings of notice under section 345 A of the DMC Act. This is substantiated by reply of defendant no. 1, dated 13.08.08 (page no. 252 of Plaintiff's documents volume I)
111.Thus it is an admitted case that the statutory proceedings of notice dated 22.02.2007 and reply dated 26.02.2007 continued till 16.04.2007 and on that day Defendant No. 5 reserved his orders in the matter and the order remained unpronounced which proves that Defendant No. 5 and 9 were aware of the protection available in respect of suit property under Delhi Laws (Special Provisions) Act 2006.
112. The following is also a narration of admitted facts that:
Hon'ble High Court of Delhi passed an order dated 09.05.2007 the WP(C) 6734/2000. Since all the defendants rely on this order for carrying out the demolition of the suit property, the whole of the said order has been reproduced here as:
1. Mr. Rajiv Awasthy, who is one of the Members of the Committee, and also counsel for the petitioner states that he has inspected all the premises, situated at Sainik Farms, regarding which he had made allegations in this court. He states that boundary walls of almost all the premises situated at Sainik Farms have been erected beyond the permissible limit and behind these high boundary walls illegal and unauthorised construction takes place. According to him the CS No. 5984/16 Ashok Sikka Vs. SDMC & Ors.Page No.59 of 102
permissible limit as per the building bye laws for the boundary wall is 1.5 metres. We direct that action shall be taken by the Municipal Corporation of Delhi to demolish all boundary walls in Sainik Farms immediately so as to bring them within the prescribed height and norms as prescribed under the bye laws. This will ensure that no unauthorised construction takes place behind these walls.
2. Mr. Rajiv Awasthy also states that in about 21 properties, which were earlier demolished by the respondent for unauthorised constructions have been reconstructed and even occupied.
3. At this stage,Mr. Jagmohan Sabharwal, Sr. Advocate, states that action is being taken against these 21 properties. He admits that unauthorised construction in this property was earlier demolished but they have been reconstructed. He states that appropriate action for demolition of such reconstruction shall be taken within 3 weeks.
4. We would also like to know from the Commissioner, Municipal Corporation of Delhi as to how such unauthorised constructions have been raised, once the said constructions were demolished. The Inspectors, Engineers and staff of Municipal Corporation of Delhi were required to keep a vigil in Sainik Farms to ensure that no unauthorised constructions take place. It, therefore, appears to us that there was dereliction of duty on the part of the officers who are posted in the aforesaid area. We would like to know what action is proposed to be taken against such erring officials and staff. The Commissioner will examine logbook with regard to construction and identify the officers CS No. 5984/16 Ashok Sikka Vs. SDMC & Ors.Page No.60 of 102
responsible and state what action has been taken. The Inspectors and Engineers must maintain proper logbooks of dates when they carried out inspection, the area inspected and whether any construction work was being done. Details of all existing construction must be catalogued.
5. The Municipal Corporation of Delhi is directed to file an action taken report within 4 weeks from today as against all the observations and directions recorded hereinbefore.
6. We would like to have a joint inspection report of Mr. Rajiv Awasthy and Mr. Anoop Bagai, who is the counsel for the Corporation, after they inspect all the properties where unauthorised constructions have been made after order dated 12 January 2001 or where unauthorised constructions is continuing. The said joint inspection report shall also be filed within 4 weeks. In order to enable them to make joint inspection, police assistance is sought for and will be provided by the SHO of the area concerned.
Re notify on 11th July, 2007.
Copy of this order will be given dasti to the counsel appearing for the parties.
113. It is noticed that para 1 is about bringing boundary walls within the prescribed height and norms as prescribed under the bye laws.
114. Para 2 relates to submission of Mr Rajiv Awasthy that in about 21 of the properties earlier demolished by the MCD for unauthorised constructions have been reconstructed and even occupied.
115. Para 3 is the statement of Sh. Jagmohan Sabharwal Senior Advocate stating that action is being taken against these 21 properties. He CS No. 5984/16 Ashok Sikka Vs. SDMC & Ors.
Page No.61 of 102admitted that unauthorised construction in these properties was earlier demolished but they have been reconstructed. He stated that appropriate action for demolition of such reconstruction shall be taken within 3 weeks.
116. Para 4 states the Commissioner, MCD was directed to inform the Court as to how such unauthorised constructions have been raised once the said constructions were demolished and what action is proposed to be taken against such erring officials and staff.
117. In Para 5, Hon'ble High Court directed MCD to file an action taken report within 4 weeks from the date of the order as against all the observations and directions recorded in the said order.
118. In para 6 the Hon'ble High Court directed Sh. Rajeev Awasthi and Sh. Anoop Bagai to file a Joint Inspection report within 4 weeks of the said order after inspecting of all the properties where unauthorised constructions have been made after order dated 12 January 2001 or where unauthorised constructions is continuing.
119. A perusal of this order reveals that the Hon'ble High Court directed MCD, defendant no. 1, to demolish all boundary walls in Sainik Farms immediately so as to bring them to prescribed height and norms as prescribed under the bye laws. It is further noticed that Hon'ble High Court directed MCD to inform what action is proposed to be taken against erring officials and staff.
120. As regards all the properties where unauthorised constructions had been made after order dated 12th January 2001 or where unauthorised constructions were continuing, Hon'ble High Court directed Mr Rajiv Awasthy and Mr. Anoop Bagai, learned counsel for petitioner and for MCD respectively to inspect all those CS No. 5984/16 Ashok Sikka Vs. SDMC & Ors.
Page No.62 of 102properties and file joint inspection report within 4 weeks of the said order. Thus Hon'ble High Court did not order for demolition of these properties rather Sh. Jagmohan Sabharwal, Senior Advocate, made a statement that appropriate action for demolition of such reconstruction would be taken within 3 weeks and the Hon'ble High Court directed to file an action taken report within 4 weeks of the said order in respect of the same as well as against all the other observations and directions recorded in the said order. Thus even Sh. Jagmohan Sabharwal, Senior Advocate, had made a statement that appropriate action for demolition of such reconstruction would be taken within 3 weeks and he did not make a statement that demolition would be carried out in three weeks from the said date.
121. If the said submission of Sh. Jagmohan Sabharwal, Senior Advocate, that appropriate action for demolition of such reconstruction would be taken within 3 weeks is taken to mean that demolition action would be taken within three weeks from 09.05.2007, the submission was made only in relation of REconstruction. Thus defendant no. 1 could have only demolished the reconstructed part. However in view of provisions of Delhi Laws (Special Provisions) Act (Act No. 22) 2006, the submission of Sh. Jagmohan Sabharwal, Senior Advocate, appearing for MCD was an unwarranted submission which he could not have submitted. Sh. Jagmohan Sabharwal, Senior Advocate, being counsel of MCD, must have been aware of provisions of Delhi Laws (Special Provisions) Act (Act No. 22) 2006 which extended protection to even the reconstructed parts of the properties which were constructed prior to 1 January 2006.
122. It was also incumbent upon Mr. S.K. Sabharwal and Anoop Bagai, being counsels of MCD, to state that no action for demolition of such reconstruction can CS No. 5984/16 Ashok Sikka Vs. SDMC & Ors.
Page No.63 of 102be taken. The said submission of Sh. Jagmohan Sabharwal, Senior Advocate, could not have been complied with in view of Delhi Laws (Special Provisions) Act (Act No. 22) 2006 being in force on the date of passing of the order.
123. Admittedly neither Sh. Jagmohan Sabharwal, Sr. Advocate nor Sh. Anoop Bagai, despite both of them being counsels for MCD/defendant no. 1, informed the Hon'ble High Court that these 21 properties even after being reconstructed, till date of construction being 1 January 2006, could not be subjected to any punitive action, demolition being one of such actions in view of Delhi Laws (Special Provisions) Act 2006 being in force. It cannot be believed that both of them despite being counsels for MCD/defendant no. 1 were not aware of the protection available to these 21 properties under Delhi Laws (Special Provisions) Act 2006.
124. From here onwards follow the series of acts committed by the defendants in respect of the suit property which supports the submission of the plaintiff that the suit property had been demolished unauthorizedly by the defendants and that too acting malafidely being in conscious knowledge that what they are doing is totally against the statutory provisions and the directions of the Hon'ble High Court.
125. The following are the admissions which flow from the documents of the defendants/pertaining to defendants:
The plaintiff has placed on record the minutes of the meeting held on 22.05.2007 (page no. 456, 457 and 458 of Plaintiff's documents Volume II)which was attended by defendant no. 4, Mr. Naresh Kumar, Defendant no. 5, Mr. S.K.Jha, Defendant no. 6, Mr. A.K. Sharma (CLO), Defendant no. 7, Mr. Manish Rastogi, Defendant no. 8, Mr. R.P. Meena and Mr. Anil Kumar, defendant no. 9 as well as by Sh Sanjeev Sabharwal, standing counsel, CS No. 5984/16 Ashok Sikka Vs. SDMC & Ors.Page No.64 of 102
Sh.Rajiv Awasthy, the amicus curiae and Sh. Anoop Bagai. These minutes were denied by defendants, however the copy has been procured by the plaintiff through response to RTI application and bears stamp of Building Department, South Zone, MCD Green Park) In the said minutes it is recorded that on 21 May 2007 at 4 PM a meeting was held in the chamber of worthy Commissioner, MCD i.e. defendant no. 3 which was attended by Additional Commissioner (Engineering) i.e. defendant no. 4, Mr. Naresh Kumar, Chief Law Officer MCD, defendant no. 6, Mr. A.K. Sharma, DC (SZ), defendant no. 5, Mr. S.K. Jha, CVO, MCD, DOV, SE (Bldg.) headquarter, SE (SZ) defendant no. 7, Mr. Manish Rastogi and Sh. Sanjeev Sabharwal, Municipal Counsel.
In the said minutes it is also recorded that three issues came up for discussion during the meeting held on 21.05.2007: The demolition of the boundary walls beyond the level permissible as per building byelaws, demolition action of listed properties and the action to be taken against the officers/officials for their lapse, if any.
It has been recorded that as regards the 1st issue, a public notice had already been sent to Director(P and I) for publication in leading newspapers on 23.05.2007. Regarding the demolition action to be taken against property for which action taken report had to be filed within 4 weeks, it was decided that an effective action has to be taken against the properties. For this purpose report of demolition action taken during the year 2000, the status report of committee of lawyers, the current level of construction etc. had to be considered for taking demolition action. It was also decided that the CS No. 5984/16 Ashok Sikka Vs. SDMC & Ors.
Page No.65 of 102demolition action had to be taken as early as possible. Based on the same, table had been prepared which also indicated the action to be taken against the respective properties. The said table was requested to be seen for approval.
The said table mentions suit property at serial no. 5 and the proposed action was "Demolition of complete structure." It is noticed that demolition of complete structure was mentioned against 9 properties. Against property of Rajeev Malhotra i.e. 37C, the proposed action was Nil.
In the meeting held on 21.05.2007, it was decided that Shri Sanjeev Sabharwal, standing counsel, would contact the amicus curiae, Sh. Rajeev Awasthy and Sh. Anoop Bagai and hold a meeting on 22.05 2007 in which the CLO will also be present. It has been recorded that accordingly the meeting was held on 22.05.2007 and after the meeting Shri Sabharwal and CLO, defendant no. 6, Mr. A.K. Sharma communicated that the properties have to be demolished in toto as per the above report.
The demolition action was decided to be taken up waiving provisions contained in the section 343, 344 and 345 A of the DMC Act, 1957.
126. Thus the mala fide of the defendant no. 4 to 9 has been brought into light by the minutes of the meeting of 22.05.2007 which was attended by defendant no. 4 to 9 and it was decided that the demolition action be allowed to be taken up, waiving the action taken by the Department as per the provisions contained under section 343, 344 and 345 A of DMC Act 1957.
CS No. 5984/16Ashok Sikka Vs. SDMC & Ors.
Page No.66 of 102127. This fact of waiving the provisions of section 343, 344 and 345 A of DMC Act have been admitted in para 63 of WS on behalf of defendant no. 2 and defendant no. 5 to 11, who are now defendant no. 1 and defendant no. 4 to 10. However in the said para, these defendants have made a wrong submission that the facts were duly placed before the Hon'ble High Court which was seized of with the matter.
128. This submission has been held to be wrong after perusal of the record of WPC no. 6734/2000 where none of the order sheets nor any of the affidavits filed by either sides nor the joint inspection report dated 9.5.2007 of the committee appointed by Hon'ble court makes any mention of the same.
129. It is not understandable that when on 21.05.2007 at 4 p.m., it was decided by defendant no. 4 to 7 and the other persons who attended the meeting that the report of demolition action taken during the year 2000, the status report of committee of lawyers, the current level of construction etc. was to be considered for taking demolition action, how could the list of these 21 properties be prepared on the same day when the meeting was held in the late evening hours i.e. at 4 PM and also as to when the current level of construction of these 21 properties was procured.
130. The minutes of meeting held on 22.05.2007 reflect the anxiety of the defendants no. 4 to 9 to demolish the suit property as no such inspection of those 21 properties had been carried out on the said date or any prior date. Vide order dated 09.05.2007, Hon'ble High Court had directed the defendant no. 1 to take action to demolish all boundary walls in Sainik Farms immediately so as to bring them within the prescribed height and norms as prescribed under the bye laws.
CS No. 5984/16Ashok Sikka Vs. SDMC & Ors.
Page No.67 of 102However, the defendants no. 1 and the other defendants who were members of the meeting held on 21.05.2007 i.e. defendant no. 4 to 7 and on 22.05.2007 i.e. defendant no. 4 to 9, opted for issuance of a public notice which had already been sent to Director(P and I) for publication in leading newspapers on 23.05.2007. However regarding the demolition action to be taken against property for which action taken report had to be filed within 4 weeks, they decided to waive of the sending of notice under section 343, 344 and 345 A of DMC Act despite knowing very well that the same is mandatory and cannot be waived under any circumstances.
131. As already observed, there was no basis for identifying/shortlisting these 21 properties even in year 2000. These observations clearly demonstrate malafide on part of defendant no. 4 to 9 in preparing this list including the property of the plaintiff with action required to be taken mentioned as demolition of complete structure and in respect of property of the Rajeev Malhotra as nil.
132. It is pertinent to note that such an unlawful and unauthorised decision was taken by defendant no. 1, 4 to 9 in presence of standing counsels of MCD as well as amicus curiae and defendant no. 6 himself being Chief Law Officer. Such a decision reflects not only the absence of good faith of the defendant no. 4 to 9 but also malafide on part of the other persons who attended the meeting on 22.05.2007.
133. Thus defendant no. 4 to 7 and 8 and 9 cannot claim immunity under section 477 of DMC Act. It is pertinent to mention that Sh. A.K.Sharma, Chief Law Officer, defendant No. 6, who was himself aware of the law in force at the relevant time, i.e.
(a) Delhi Laws (Special Provisions) Act, (b) General Clauses Act 1897 and (c) CS No. 5984/16 Ashok Sikka Vs. SDMC & Ors.
Page No.68 of 102Section 343, 344 and 345A of DMC Act alongwith others decided to waived off the provisions of Section 343, 344 and 345 A of DMC Act despite knowing that the same is mandatory.
134. As already observed, there was no basis for identifying/shortlisting these 21 properties even in year 2000. These observations clearly demonstrate malafide on part of defendant no. 4 to 9 in preparing this list including the property of the plaintiff with action required to be taken mentioned as demolition of complete structure and in respect of property of the Rajeev Malhotra as nil.
135. It is pertinent to note that such an unlawful and unauthorised decision was taken by defendant no. 1, 4 to 9 in presence of standing counsels of MCD as well as amicus curiae and defendant no. 6 himself being Chief Law Officer. Such a decision reflects not only the absence of good faith of the defendant no. 4 to 9 but also malafide on part of the other persons who attended the meeting on 22.05.2007.
136. Thus defendant no. 4 to 7 and 8 and 9 cannot claim immunity under section 477 of DMC Act. It is pertinent to mention that Sh. A.K.Sharma, Chief Law Officer, defendant No. 6, who was himself aware of the law in force at the relevant time, i.e.
(a) Delhi Laws (Special Provisions) Act, (b) General Clauses Act 1897 and (c) Section 343, 344 and 345A of DMC Act alongwith others decided to waived off the provisions of Section 343, 344 and 345 A of DMC Act despite knowing that the same is mandatory.
137. None of the defendants had any such authority and the decision to waive of section 343, 344 and section 345 A of DMC Act and the same was itself illegal and ultra vires the authority of any of the officers/officials of MCD.
CS No. 5984/16Ashok Sikka Vs. SDMC & Ors.
Page No.69 of 102138. Section 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 byelaws 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 of demolition with a brief statement of the reasons therefor 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 any 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 sub section (1) may prefer an appeal against the order to 2 the Appellate Tribunal CS No. 5984/16 Ashok Sikka Vs. SDMC & Ors.Page No.70 of 102
within the period specified in the order for the demolition of the erection or work to which it relates.
(3) Where an appeal is preferred under subsection (2) against an order of demolition, the Appellate Tribunal may, subject to the provisions of subsection (3) of section 347C, stay the enforcement of that order on such terms, if any, and for such period, as it may think fit.
Provided that where the erection of any building or execution of any work has not been completed at the time of the making of the order of demolition, no order staying the enforcement of the order of demolition shall be made by the Appellate Tribunal, unless security, sufficient in the opinion of the said Tribunal, has been given by the appellant for not proceeding, with such erection or work pending the disposal of the appeal.
(4) No court shall entertain any suit, application or other 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) Where no appeal has been preferred against an order of demolition made by the Commissioner under subsection (1) or where an order of demolition made by the Commissioner under that subsection 4 has been confirmed on appeal, whether with or without variation, by the Appellate Tribunal in a case where no appeal has been preferred against the order of the Appellate Tribunal, and by the Administrator CS No. 5984/16 Ashok Sikka Vs. SDMC & Ors.
Page No.71 of 102in a case where an appeal has been preferred against the order of the Appellate Tribunal, the person against whom the order has been made shall comply with the order within the period specified therein, or as the case may be, within the period, if any, fixed by the Appellate Tribunal or the Administrator on appeal and on the failure of the person to comply with the order within such period, the Commissioner may himself cause the erection or the work to which the order relates to be demolished and the expenses of such demolition shall be recoverable from such person as an arrear of tax under this Act.
139. Thus as per section 343 of the DMC Act, no demolition action can be taken by MCD/SDMC, except after following the statutory procedure laid down therein i.e. a. issuing show cause notice at pre decisional stage proposing demolition unspecific grounds contained therein:
b. considering the reply submitted in passing a detailed order with reasons indicating which portion of the property has to be demolished and on what grounds in only by issuing the demolition notice giving at least 6 days time to the owner/occupier to demolish the offending portion himself; c. The above provision has been interpreted in various judgments to require inter alia that a sketch/drawing is to be prepared by the MCD/SDMC indicating clearly the offending portion, so that there is an effective opportunity for the owner/occupier to understand what is required of him and to either comply with the same ought to challenged by way of appeal to ATMCD;
d. It is only upon failure on the part of the owner/occupier to either comply with the demolition notice of 6 days or the period of notice, or to challenge the same before ATMCD that the MCD/SDMC gets the jurisdiction to carry out the demolition CS No. 5984/16 Ashok Sikka Vs. SDMC & Ors.Page No.72 of 102
through MCD/SDM for staff and to recover the cost thereof from the owner/occupier.
140. There is no power or jurisdiction in the MCD/SDMC to carry out any demolition other than by following the procedure detailed above. Under Section 343 no order of demolition shall be made unless such person has been given a reasonable opportunity of showing cause against such order which is proposed to be made. BUILDING bye laws in a Municipality belong to that category of inflexible and inexorable laws of housebuilding the observance of which cannot be waived normally either in prospect or retrospect of by the municipal authorities. ANZ Grindlays Bank Pic vs The Commissioner, MCD And Ors. , 1995 IIAD Delhi 573.
141. The plaintiff has submitted that the records of MCD/SDMC themselves reveal the violation of section 343 of DMC Act and thus the present suit has to be allowed in favour of the plaintiff.
142. It is noticed that the statement was made by Shri Jagmohan Sabharwal to Hon'ble High Court that APPROPRIATE ACTION FOR DEMOLITION OF SUCH RECONSTRUCTION shall be taken within 3 weeks of the order dated 9.05.2007 and the meeting of taking decision for demolition was held on 21.5.2007 and the plaintiff has alleged that defendant no. 8 to 10 demanded bribe from him on 20.05.2007 which he refused to give and on the next day, against his property/suit property, the meeting of 21.5.2007 was held in the office of Commissioner of MCD and on the very next day i.e. 22.5.2007 proposed action was decided i.e. demolition of complete structure of suit property.
143. What is more important is that the defendants 8 to 10 visited house of CS No. 5984/16 Ashok Sikka Vs. SDMC & Ors.
Page No.73 of 102plaintiff on 20.05.2007 i.e. the next day after the last date of operation of Delhi Laws (Special Provisions) Act 2006 i.e. 19.05.2007.
144. The minutes of the meeting of 22.05.2007 are followed by handwritten noting of the defendants no. 4 to 7 who advised the Department to take action as per decision taken on 22.5.2007. (page no. 458 of Plaintiff's documents, Volume II)
145. Defendant No. 3 and 4 have also submitted that in the present suit petitioner has taken the plea that only the 1st canopy and structure beneath it were demolished in the year 2000 - 2001 as per report dated 23.01.2001 of the 4 members lawyers committee and therefore at best and if it all the said portion of his house was to be demolished by the defendant no. 2 at all.
146. Defendant No. 3 and 4 have submitted that plaintiff in the present suit and other applications has repeatedly mentioned that his whole property was demolished however demolition was carried out only with regard to unauthorised construction which was again raised after the previous demolition under the court's order. Submission is wrong in view of documents placed on record.
147. The plaintiff has placed on record the proceedings recorded by defendant no. 1 in respect of demolition of the suit property carried out by defendants on 23.5.2007 to 26.5.2007 and then on 30.05. 2007 signed by defendant no. 9 and by defendant no. 8 at two pages i..e 459 and 460. (page no. 459 to 466 of Plaintiff's documents, Volune II) The report of building Department: South Zone has been perused which is again an admitted document. The discrepancies in the report which have been highlighted demonstrates as to how the defendants have acted malafidely as well as have discriminated the action taken in respect of CS No. 5984/16 Ashok Sikka Vs. SDMC & Ors.
Page No.74 of 102suit property supporting the submission of the plaintiff that defendant no. 1 has adopted pick and choose policy in respect of the various properties similarly situated.
On 23.05.2007, the demolition action has been taken against the suit property and J 12 Sainik Farms against which also there was a proposal for complete demolition.(signed by defendant no. 8 and 9) On 24.05.2007, property J 12 was completely demolished and suit property was further demolished. (signed by defendant no. 8 and 9) On 25.05.2007 part demolition was carried out in property no. 73, Krishna Nagar and D279. It is noticed that there is no mention of these 2 properties in the minutes dated 22.05.2007 which reveals that the demolition work was carried out on the whims and fancies of MCD/defendant no. 1. (signed by defendant no.9) On 25.5.2007, the suit property was further demolished and demolition action was taken against allegedly built portion of property bearing no. 501/12 - A. It is noticed that in the minutes dated 22.05.2007, the action required to be taken against this property had also been mentioned as complete structure. However only the part which was stated to have been rebuilt after demolition in the year 2000 was demolished. This again shows that the demolition work had not been carried out in accordance with the minutes of the meeting dated 22.05.2007 and the deviations from the report in carrying out the demolition work reveals illegal gratification having been taken by officers of MCD/defendant no. 1. (signed by CS No. 5984/16 Ashok Sikka Vs. SDMC & Ors.
Page No.75 of 102defendant no. 9) On 25.05.2007, the report concludes with the sentence that action will remain continue on 26.05.2007. (signed by defendant no. 9) However the report of 26.05.2007 is not there in respect of the suit property nor is there any noting that the suit property was not demolished on the said date.
On 26.05.2007, rebuilt part of property bearing no. J238 was demolished. It is again noticed that in the report dated 21.05.2007, it has been mentioned that there are 8 properties bearing no. J 238 and that the demolition will be taken only against 1 of these after identification. It is not understandable as to how and when the said identification was made by defendant no. 1/MCD. ((signed by defendant no. 9 but no mention of demolition of suit property) On 27.05.2007, there is no report of any demolition being a Sunday. On 28.05.2007 and 29.05.2007 demolition action was taken against rebuilt portion of E75 and on neither of these 2 dates, it has been mentioned as to why the suit property was not demolished. (signed by defendant no. 8 and 9) However on 30.05.2007, it is recorded that in continuation to demolition action taken on 25.05.2007, more structure was demolished by making no mention of demolition action taken on 26.05.2007 against the suit property. (signed by defendant no. 9) The proceedings of the day concluded by recording that action will remain continue on 31.05.2007. However, there was no continuation of the same.
148. The report of these days reveals that except for the suit property, CS No. 5984/16 Ashok Sikka Vs. SDMC & Ors.
Page No.76 of 102defendant no. 1 demolished only the rebuilt part of the properties in respect of which demolition action was taken and the rebuilt portions were identified by comparing with the photographs taken during the demolition action in the year 2000. However in respect of suit property, no such comparison was made and the whole of the suit property was demolished despite the photographs taken during the demolition action in the year 2000 clearly showing that only the front canopy and the area lying underneath of the suit property was demolished at that time. Further only one other property was completely demolished i.e. J 12. However the said property was completely demolished in the year 2000 as well.
Thus mala fide of defendant no. 8 and 9 is established in view of these discrepancies.
149. Further it is noticed that on the 1st day of the demolition that is 23.05.2007, MCD officials taking note of the fact that the property was occupied by 4 to 5 children and 8 to 10 women and due to inadequate ladies police, property could not be vacated timely. However in case of suit property, the MCD officials ignored the presence of residents of the suit property and demolished the part of the property mentioned in the said report of 23.05.2007. (Report signed by defendant no. 8 and 9) The different treatment of the suit property in respect of demolition when compared to the other properties which were demolished during the relevant period strengthens/establishes the submissions of the plaintiff that since he refused to pay bribe of ₹ 5 lakh to defendant no. 8 to 10, he was victimised and his full property was demolished.
CS No. 5984/16Ashok Sikka Vs. SDMC & Ors.
Page No.77 of 102150. These observations demonstrate that except for suit property, demolished part of the properties in which the demolition was carried out was only in respect of rebuilt part and that too after comparing with the photographs of demolition carried out in year 2000.
151. Further, the defendants have not explained as to why the demolition action had not been taken in respect of the other properties mentioned in the list of properties prepared in the meeting held on 21. 05.2007 nor they have explained as to why the demolition action did not continue in respect of the remaining little portion of the suit property after 30.05.2007. However in response to RTI of plaintiff, the defendants have given the reason for not continuing the demolition of the property after 30.05.2007 to be the decision taken in meeting of 12.06.2007. (Page no. 231 of plaintiff's documents volume I). This again reflects malafide on part of the defendants as to how it is possible that the decision to do something scheduled to be taken on 31.05.2007 can be taken on a subsequent date of June 2007.
152. However, the answer to that is found in the order of Hon'ble High Court passed in WPC no. 6734/2000 dated 25.05.2007 when CM no. 6794/2007 was filed by one person named Mr D. K. Jain and the matter was taken up because of the same. In the said order, Hon'ble High Court referred to the statement of Mr Jagmohan Sabharwal made on 9 May 2007 and it is recorded as that he had stated that appropriate action for demolition of such reconstruction shall be taken within 3 weeks. Hon'ble Court vide the same order recorded that MCD is entitled to take action as per law but the same should be done after proper verification. Thus defendants were put to alert air then you that they had not taken the action of demolition as per law nor the demolition action was taken after proper verification.
CS No. 5984/16Ashok Sikka Vs. SDMC & Ors.
Page No.78 of 102153. The defendants have relied on observation of Hon'ble High Court made vide order dated 30.05.2007 in CM no. 8027/2007 in the same writ where it was observed as:
"Counsel appearing for the applicants seeks protection on the ground that the no. has been changed by the Association. We are not concerned with the aforesaid dispute at the stage. In our considered opinion, the property has already been identified by the MCD and, therefore, unauthorised constructions made by the occupant thereon shall be removed in terms of our order dated 9 May 2001. The counsel for the applicants, however, states that there is no unauthorised construction. The MCD shall visit the premises within a week from today and take all necessary action to demolish all unauthorised constructions, if there be any, within 2 weeks."
154. The defendants are trying to mislead this court as this observation was made by the Hon'ble High Court in respect of submissions of the applicants i.e. Sons of one Mr R.K. Arora and that too in respect of property bearing no. 79 - A. Thus, the same does not have any bearing in respect of the suit property.
155. Further order dated 30.05.2007 clearly shows that vide order dated the 9.05.2007, Hon'ble High Court had directed demolition of unauthorised reconstructed part of the properties which were demolished earlier and the said order specifically records as:
"If reconstruction has been made despite our orders and demolition done earlier, the said reconstructions should be demolished."
Vide the same order, the Hon'ble High Court directed demolition to be carried out after making verification and in accordance with law.
CS No. 5984/16Ashok Sikka Vs. SDMC & Ors.
Page No.79 of 102156. Thus, the defendants being aware of such directions stopped demolition work after 30.05.2007 in view of this direction of the Hon'ble High Court.
157. The malafide on part of the Defendant No. 4 to 9 is exposed on perusal of minutes of the meeting held in Office of Additional Commissioner (Engineering) on 12.6.2007 (page no. 467 of plaintiff's documents Volume II) which was attended by defendant no. 4 to 9 (namely Mr. Naresh Kumar, Mr. S.K. Jha, Mr. A.K.Sharma, Mr. Manish Rastogi, Mr. R.P. Meena and Mr. Anil Kumar) which is again an admitted document.
158. In the said minutes, there is not a whisper by the defendants no. 4 to 9 or any of them about act of demolition already carried out by defendant no. 1 under the signatures of defendant no. 9 and on few days under signatures of both defendant no. 8 and 9. Nor there is any reference to the meeting of aforesaid meeting of 21.5.2007 or 22.5.2007.
159. The minutes begin with : "Today's meeting has been called in view of the order dated 9.05.07 and subsequent orders passed by Hon'ble High Court in CWP no. 6734 of 2000 titled as Rajiv Malhotra vs UOI & ors relating to unauthorised constructions in Sainik Farms. In terms of the said orders, action has to be taken by the MCD in respect of 21 properties were reconstruction is carried out by the owners/occupier after the passing of the order dated 12. 01.2001."
160. Thus there is no mention of the action having been taken already in respect of any of these 21 properties despite the earlier meeting of 22.5.2007 having been attended by all these defendants i.e. defendant no. 4 to 9 and defendant no. 8 and 9 having conducted demolition from 23rd May, 2007 to 30th May 2007 as explained above. These observations also demonstrate malice on part of these CS No. 5984/16 Ashok Sikka Vs. SDMC & Ors.
Page No.80 of 102defendants.
161. It has been further recorded in those minutes that:
"It has been decided that MCD would take action in respect of those 21 properties where the court appointed committee had given its report after visiting the said property on 14.01.2001/20.01.2001. The reconstructions, if any, have to be demolished by the MCD on the basis of the report/photographs submitted by the committee to the court in terms of the order dated 12. 01.2001."
162. These minutes leave no iota of doubt that the defendants no. 4 to 9 were aware that vide order dated 06.05.2007, Hon'ble High Court had directed to demolish only reconstructed portion, if any, of those 21 properties in respect of which the court appointed committee had submitted its report in 2001 and that too after comparison with the photographs of the committee which was submitted in the court along with the report in 2001.Thus despite being in conscious knowledge of the fact that reconstructed part alone was to be demolished and that too after proper verification and after due compliance of law, the defendants acted malafidely and demolished the whole of the suit property in total derogation of directions of Hon'ble High Court dated 09.05.2007.
163. On 12.06.2007, it was also recorded that photographs of all the said property is being taken from Shri Rajiv Awasthi which shall be compared with the present status of the properties in question and thereafter action would be taken by the MCD and also properties where reconstruction have been carried out by the occupant/bonus after the order dated 12.01.2001. It has been recorded that the properties in which there was a problem of identification have already been CS No. 5984/16 Ashok Sikka Vs. SDMC & Ors.
Page No.81 of 102identified by Shri Rajiv Awasthi and Shri Anoop Bagai on 07.06.2007 in terms of the orders of the court.
164. Perusal of these minutes clearly reveals that the properties which were to be demolished in respect of which there was problem in identification were identified on 07.06.2007. However as noted above, on 26.05.2007, rebuilt part of property bearing no. J238 was demolished whereas in the report dated 22.05.2007, it has been mentioned that there are 8 properties bearing same no. J 238 and that the demolition will be taken only against 1 of these after identification and it is not understandable as to how and when the said identification was made by defendants on 26.05.2007 when the identification task was carried out on 07.06.2007.
165. Even in the Joint Inspection Report of the Committee appointed by the Hon'ble court on 09.05.2007, there is no reference of any demolition of any property or part of property out of the 21 properties carried out by defendant no. 1 or its officials in the month of May 2007 or minutes of meeting held on 21.05.2007 or 22.05.2007 or of waiving of provisions of section 343, 344 and 345 A of DMC Act by defendant no. 4 to 9 vide the meeting of 22.05.2007.
166. As demonstrated above, the defendant no. 1, 4 to 9 did not adopt the said course in respect of demolition of suit property and demolished whole of the suit property except for a little portion without comparing it with the photographs filed by the committee of lawyers with the Hon'ble High Court in 2001 and that too without giving any notice under section 343, 344 and 345A of DMC Act.
167. The defendants 1, 4 to 9 are taking protection of their actions in the garb of the observations of the Hon'ble High Court dated 09.05.2007.
CS No. 5984/16Ashok Sikka Vs. SDMC & Ors.
Page No.82 of 102However, howsoever liberally construed, the directions of the Hon'ble High Court can only be taken to be direction of demolition of reconstructed part and nothing else and that also as per law and after proper verification.
168. All these observations flowing from admitted documents which pertain to MCD. Order XII Rule 6 CPC allows judgment to be passed on the basis of admissions contained in the pleadings as well as in the documents which in the present case happen to be all the documents of the defendants procured by plaintiff through RTI application from the defendants or are either the court records. In view of these documents containing admissions of defendants, there is no requirement of proving them by trial in view of section 58 of Indian Evidence Act.
169. Observations made herein demonstrate that the Defendant No. 1, 4 to 9 did not demolish the suit property in good faith nor intended to do so under DMC Act or Rules, Regulations or Byelaws, acting under the order or direction of any municipal authority or any municipal officer or other municipal employee and thus are not entitled to the immunity granted under section 477 of DMC Act and were thus not required to be served with notice under section 478 of DMC Act. However the said notice was served upon defendants since the record of the documents contains the record of service through speed post available hand delivery against stamped acknowledgement in original on 24.02.2010 and 02.03.2010. (On page no. 321323 of Plaintiff's documents Volume I). Thus issue no. 1 is decided against the defendants and in favour of the plaintiff.
170. In view of the finding that the defendants are not entitled to protection under section 477 of the DMC Act, the present suit is not time barred and was not required to be filed within 6 months period as stipulated in section 478 of the DMC CS No. 5984/16 Ashok Sikka Vs. SDMC & Ors.
Page No.83 of 102Act. The defendants have themselves admitted that the present case has been filed in May 2010 for alleged wrongful demolition of substantial part of the property of the plaintiff on 23.05.2007, 24.05.2007, 25.05.2007, 30.05.2007 i.e. just before the expiry of 3 years time. Thus the suit has been filed within period of limitation.
171. A perusal of all these observations also demonstrates that the plaint discloses a cause of action against the defendants 1, 4 to 9 and thus defendant no. 1, 4 to 9 are necessary parties and the suit is accordingly not bad on account of misjoinder of parties. Thus issue no. 2 and 3 are also decided against the defendants and in favour of the plaintiff.
Issue no. 4. Whether the present suit is liable to be rejected for nonfiling of court fees? OPD
172. The defendants have submitted that the plaintiff has not filed the court fees in respect of the reliefs sought through the present suit however, it is noticed that the plaintiff has filed court fees of ₹ 1,00,500 which is appropriate as per the reliefs claimed in the suit because court fees has to be filed on the value of the reliefs as on date of filing of the suit and the same is found to be sufficient. Thus issue no. 4 is decided against the defendants and in favour of the plaintiff. Issue no. 5. Whether the present suit is not maintainable on account of res judicata? OPD
173. Defendants 1, 3, 5 to 7 have submitted that issue of demolition already stands adjudicated by the Hon'ble High Court in WP ( C) no. 6734/2000 and the same issue cannot be adjudicated again for which already adjudication has been done by the Hon'ble High Court of Delhi and it amounts to res judicata. It has been further contended that the same being a pure question of law cannot be dealt CS No. 5984/16 Ashok Sikka Vs. SDMC & Ors.
Page No.84 of 102under the application under order XII rule 6 CPC.
174. Defendants have submitted that the suit is barred by res judicata as the plaintiff is a habitual litigant and has filed various writ petitions with regard to the same cause of action and the same were outrightly dismissed by the courts and he is indulged in forum shopping.
175. The plaintiff filed the following cases:
1) WP( C) no. 13907/2009 before Hon'ble High Court of Delhi
2) WP (Criminal) no. 1558/2011 before Hon'ble High Court of Delhi
3) WP ( C) no. 13907/2009 before Hon'ble High Court of Delhi
4) WP( C) no. 3432/2014 before Hon'ble High Court of Delhi
5) WP (C ) no. 4483/2014 before Hon'ble High Court of Delhi
6) WP(C ) no. 3432/2014 before Hon'ble High Court of Delhi
7) WP(C ) no. 6048/2014, CM. no. 21045/14, CM no. 490/15 before Hon'ble High Court of Delhi
8) WP( C) no. 2802/2015 before Hon'ble High Court of Delhi
9) WP (C ) no. 4205/2015 before Hon'ble High Court of Delhi
10) WP(C ) no. 7342/2016 before Hon'ble High Court of Delhi
11) Criminal complaint no.CC 21 /1/13 before District Court Saket
12) Criminal revision no. 8170/2016 before ASJ/Special Judge, District Court Saket
13) Criminal complaint no. CC 183/1/13 before CMM, South, District Court Saket
176. Defendant no. 3 and 4 have submitted that son of the plaintiff also filed WP (C) no. 479/2001, CM No. 812/2001 and CM no.12735/2009 in the said writ.
CS No. 5984/16Ashok Sikka Vs. SDMC & Ors.
Page No.85 of 102Defendants have submitted that CM no.12735/2009 in the said writ was dismissed and the same would operate as res judicata.
177. Copy of the said CM has been perused and in the said CM, son of the plaintiff had sought liberty to file fresh writ petition for challenging all the impugned actions of respondents including the subsequent developments and in the said CM, son of the plaintiff had sought permission to withdraw the said petition bearing no. WP (C )no. 479/2001. However the said CM was dismissed. The said observation again does not amount to res judicata as at that point of time the present suit was already pending and accordingly the said order has no implication on the present suit and does not operate as res judicata by any stretch of imagination.
178. Defendant no. 3 and 4 were supplied with all the documents sought by them in respect of the writs filed by the plaintiff and the same were supplied to them in presence of learned counsels for other defendants but they never prayed for supplying the copy of the same. However, the defendants have miserably failed to mention even a single matter/writ wherein the order passed could be characterised as a finding on merits so as to amount to res judicata. The plaintiff has submitted that he had withdrawn most of those writs/proceedings with liberty to file the same of fresh and the said liberty was granted to him. Copy of the said CM has been perused and in the said CM, son of the plaintiff had sought liberty to file fresh writ petition for challenging all the impugned actions of respondents including the subsequent developments and in the said CM, son of the plaintiff had sought permission to withdraw the said petition bearing no. WP (C )no. 479/2001. However the said CM was dismissed. The said observation again does not amount to res judicata as at that point of time the present suit was already pending and CS No. 5984/16 Ashok Sikka Vs. SDMC & Ors.
Page No.86 of 102accordingly the said order has no implication on the present suit and does not operate as res judicata by any stretch of imagination.
179. The defendants have been unable to rebut this submission of the plaintiff. Rather two writs filed by the plaintiff i.e. WP (C ) no. 2802/2015 and WP (C ) no. 4205/2015 have been disposed of by Hon'ble Division Bench of Hon'ble High Court vide order dated 06.07.2017 by giving specific liberty to plaintiff to seek his reliefs through the present civil court by way of present suit thus it cannot be held that issue of demolition already stands adjudicated by the Hon'ble High Court in WP(C) no. 6734/2000 and it amounts to res judicata.
180. In view of these findings, it is held that the suit is not barred by res judicata and thus issue no. 5 is decided against the defendants and in favour of plaintiff.
Issue no. 6. Whether the construction of the plaintiff's house was protected under Delhi Laws(Special Provisions) Act, 2006 or any statutory moratorium. If so whether the act of demolition by the defendant thereof was in contravention thereof?
181. Defendant no. 1, 3, 5 and 7 to 10 have contended that the property of the plaintiff was completely demolished in the year 2000. Now again vide order dated the 9.05.2007, 2 members committee of Shri Rajeev Awasthi and Sh. Anoop Bagai advocates was formed to inspect the unauthorized construction in 21 properties and which were to be identified by the committee and thereafter action was to be taken by the MCD. Defendant no. 1 to 3, 5 and 7 to 10 have therefore contended that the reconstruction made by the plaintiff was not the old one but as it was constructed after the demolition so it is not protected under the provisions of Delhi CS No. 5984/16 Ashok Sikka Vs. SDMC & Ors.
Page No.87 of 102Laws(Special Provisions) Act, 2006 being old and occupied.
182. Defendant no. 1, 3, 5 and 7 to 10 have made a wrong submission as it is admitted fact that front canopy and the structure lying beneath of the suit property alone was demolished in 2000.
183. Defendant No. 3 and 4 have submitted that plaintiff has himself emphasised that his property was constructed before 2006 and was protected under the National Capital Territory of Delhi Laws (Special Provisions) Act, 2006 which was notified on 19. 5. 2006 and was effective only till 18.5.2007 whereas the demolition action was taken against his property and other properties of the Sainik farm area in the last week of May 2007 and at the time of demolition action, there was no protection under the National capital Territory of Delhi Laws (Special Provisions) Act, 2006. Moreover National Capital Territory of Delhi Laws (Special Provisions) Ordinance, 2007 for making special provisions for the areas of National capital Territory of Delhi for a further period of one year was migrated only on 04.07.2007 and the same ceased to operate from 21.09.2007. National capital Territory of Delhi Laws (Special Provisions) Act, 2007 for making special provisions for the areas of the National capital Territory of Delhi for a further period of one year was notified on 05.12.2007 with retrospective effect from 19.05.2007 and thus it has been contended that from 18.05.2007 till 3.7.2007, there was no protection under the National capital Territory of Delhi Laws (Special Provisions) Act, 2006 or National capital Territory of Delhi Laws (Special Provisions) Act, 2007 and plaintiff was not entitled to protection of the same and hence all the frivolous claims of the plaintiff fall flat for being baseless and without spine.
184. As observed earlier, Minutes of the meeting of 19.06.2007 unequivocally CS No. 5984/16 Ashok Sikka Vs. SDMC & Ors.
Page No.88 of 102demonstrate the illegality of demolition of the suit property carried out on 23rdMay to 26th May 2007 and 30th May 2007. On perusal of these minutes, it is clear that the report of Building Department: South Zone from 23 May 2007 to 30th May 2007 had been deliberately not mentioned in the minutes of the meeting of 12.06.2007 to screen the illegalities of the demolition carried out in the suit property. The minutes of meeting of 12.06.2007 speak volumes about the malafides of the defendants as meeting of 12.06.2007 had also been attended by defendant no. 4 to 9 and Shri Rajiv Awasthi and Shri Anoop Bagai, advocates. Rather the minutes demonstrate that Shri Rajiv Awasthi and Shri Anoop Bagai, advocates were acting hand in gloves with defendant no. 4 to 9. The minutes of the meeting dated 12.06.2007 read with the report of Building Department: South Zone from 23 May 2007 to 30 th May 2007 and the manner in which the property of the plaintiff that is the suit property demonstrate that the defendants have played a fraud upon the Hon'ble High Court of Delhi by recording wrong facts in the minutes of the meeting dated 12.06.2007.
185. It is further noticed that Hon'ble High Court of Delhi was never informed by the defendants about the decision taken in the meeting of 22.05.2007 to waive of the requirement of notice under section 343, 344 and 345 A of MCD Act and thus trying to give legitimacy to their illegal action under the garb of order of Hon'ble High Court of Delhi dated 09.05.2007.
186. Further, under the order dated 9th May 2007, defendant no. 1 could have only demolished the reconstructed part of the suit property. However in view of provisions of Delhi Laws (Special Provisions) Act (Act No. 22) 2006, the submission of Sh. Jagmohan Sabharwal, Senior Advocate, appearing for MCD, CS No. 5984/16 Ashok Sikka Vs. SDMC & Ors.
Page No.89 of 102before Hon'ble High Court on 09.06.2007 was an unwarranted submission which he could not have made. Sh. Jagmohan Sabharwal, Senior Advocate, being counsel of MCD, was aware of provisions of Delhi Laws (Special Provisions) Act (Act No. 22) 2006 which extended protection to even the reconstructed parts of the properties which were constructed prior to 1 January 2006.
187. It was also incumbent upon Mr. S.K. Sabharwal and Anoop Bagai, being counsels of MCD, to state that no action for demolition of such reconstruction can be taken. The said submission of Sh. Jagmohan Sabharwal, Senior Advocate, could not have been complied with in view of Delhi Laws (Special Provisions) Act (Act No. 22) 2006 being in force on the date of passing of the order.
188. It has been argued by learned counsels for defendants that Delhi Laws (Special Provisions) Act (Act No. 22) 2006 was not in force on the date of demolition of suit property and therefore plaintiff is not entitled to the protection granted by the said Act. The submission of the defendants is not sustainable in view of their submission that the suit property was demolished by the defendants in compliance with directions of the Hon'ble High Court dated 09.05.2007 as there was no such direction of the Hon'ble High Court and it was only the submission of learned counsel for MCD, defendant no. 1, which was a submission which in itself was inherently not capable of being executed/complied.
189. Even if it is deemed that the suit property was not protected by Delhi Laws (Special Provisions) Act (Act No. 22) 2006, it is an admitted case of the parties that suit property was demolished without serving upon him any notice under section 343 of DMC Act and that the demolition lasted only a week out of which five days CS No. 5984/16 Ashok Sikka Vs. SDMC & Ors.
Page No.90 of 102were concentrated primarily on house of plaintiff i.e. suit property. The demolition action stopped abruptly as that started and the other 17 - 18 properties were completely spared and not a brick was touched. Even house of Rajeev Malhotra which was the reconstructed house falling in the same list was left untouched. Thus in light of these observations, the demolition of the house of the plaintiff, i.e. suit property, was illegal and unauthorised and against contravention of all the relevant laws be it Delhi Laws (Special Provisions) Act (Act No. 22) 2006 or section 343 of DMC Act.
190. However, it is relevant to note the provisions of Delhi Laws (Special Provisions) Act 2006 :
Enforcement to be kept in abeyance
3. (2) Subject to the provisions contained in subsection (1) and notwithstanding any judgment, decree or order of any court, status quo as on the 1st day of January, 2006 shall be maintained in respect of the categories of unauthorised development mentioned in subsection (1).
3. (3) All notices issued by any local authority for initiating action against the categories of unauthorised development referred to in subsection (1), shall be deemed to have been suspended and no punitive action shall be taken during the said period of one year.
Short Title, Extent and Duration CS No. 5984/16 Ashok Sikka Vs. SDMC & Ors.
Page No.91 of 1021. (3) It shall cease to have effect on the expiry of one year from the date of its commencement, except as respects things done or omitted to be done before such cesser, and upon such cesser section 6 of the General Clauses Act, 1897 (10 of 1897), shall apply as if this Act had then been repealed by a Central Act.
A perusal of section 1(3) reveals that Delhi Laws (Special Provisions) Act 2006 was enacted for a period of one year and thus Mr. Jagmohan Sabharwal knew on 9 May 2007 that the said Act would remain valid till 19 May 2007 but still made a submission before Hon'ble High Court of demolishing the reconstructed part within 3 weeks of the said date and despite knowing that even after 19 May 2007, cesser clause contained in section 1 (3) would protect the properties constructed before 1st January, 2006 in view of section 6 of the General Clauses Act.
191. Section 6 of the General Clauses Act reads as:
6. Effect of repeal Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not
(a) revive anything not in force or existing at the time at which the repeal takes effect; or
(b) affect the previous operation of any enactment so repealed or anything duly done or CS No. 5984/16 Ashok Sikka Vs. SDMC & Ors.Page No.92 of 102
suffered thereunder; or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid.
192. Thus even after 19th May, 2007, MCD, defendant no. 1 could not have demolished any of the properties newly constructed or reconstructed or any of the reconstructed portion which was in existence as on 1 January 2006.
193. The Delhi Laws (Special Provisions) Act 2006 was further extended by the name of The National Capital Territory of Delhi Laws (Special Provisions) Act 2007 the relevant part of which reads as:
"AND WHEREAS the National Capital Territory of Delhi Laws (Special Provisions) Ordinance, 2007 (Ord. 6 of 2007) for making special provisions for the areas of the National Capital Territory of Delhi for a further period of one year promulgated on 4th July, 2007 will cease to operate from the 21st day of September, 2007;CS No. 5984/16
Ashok Sikka Vs. SDMC & Ors.Page No.93 of 102
AND WHEREAS the National Capital Territory of Delhi Laws (Special Provisions) Bill, 2007 introduced in Parliament to replace the National Capital Territory of Delhi Laws (Special Provisions) Ordinance, 2007 (Ord. 6 of 2007) could not be taken up for consideration and passing since Parliament adjourned sine die;
(1) Short title, extent, commencement and duration.--(1) This Act may be called the National Capital Territory of Delhi Laws (Special Provisions) Act, 2007. (2) It extends to the National Capital Territory of Delhi. (3) It shall be deemed to have come into force on the 19th day of May, 2007.
(4) It shall cease to have effect on the 31st day of December, 2008 except as respects things done or omitted to be done before such cesser, and upon such cesser section 6 of the General Clauses Act, 1897 (10 of 1897) shall apply as if this Act had then been repealed by a Central Act".
Section 24 of General Clauses Act reads as:
Continuation of orders, etc., issued under enactments repealed and reenacted: Where any Central Act or Regulation, is, after the commencement of this Act, repealed and reenacted with or without modification, then unless it is otherwise expressly provided, any appointment, notification, order, scheme, rule form or byelaw, made or issued under the repealed Act or Regulation, shall, so far as it is not inconsistent with the provisions re enacted, continue in force, and be deemed to have been made or issued under the CS No. 5984/16 Ashok Sikka Vs. SDMC & Ors.Page No.94 of 102
provisions so reenacted unless and until it is superseded by any appointment, notification, order, scheme, rule form or byelaw, made or issued under the provisions so reenacted.
194. In the matter of Malti Devi vs Collector Of Central Excise on 1 January, 1800, 1991 (56) ELT 374 Tri Del, it has been held that:
"A reading of Section 24 again refers to continuation of orders, etc. issued under enactment repealed and reenacted i.e. it saves the rules, notifications and orders, etc, only if after repeal of an enactment it is simultaneously reenacted or replaced and there is no inconsistency between the repealed and the reenacted provisions and not otherwise."
Thus it is noticed that the plaintiff was entitled to protection under moratorium between The Delhi Laws (Special Provisions) Act 2006 and The National Capital Territory of Delhi Laws (Special Provisions) Act 2007 as the Act of 2007 was not inconsistent with provisions of The Delhi Laws (Special Provisions) Act 2006 was further extended by the name of The National Capital Territory of Delhi Laws (Special Provisions) Act 2007. Even Section 1 (3) of The National Capital Territory of Delhi Laws (Special Provisions) Act 2007 provides specifically that It shall be deemed to have come into force on the 19th day of May, 2007 . Thus it is established that The National Capital Territory of Delhi Laws (Special Provisions) Act 2007 had retrospective effect and the defendants could not have taken any action of demolition against the suit property of the plaintiff or in relation to any other property which was constructed prior to 1 January 2006 in view of Section 6 of General Clauses Act read with Section 24 of General Clauses Act and the suit property was protected even in the moratorium period and thus could not have been demolished.
CS No. 5984/16Ashok Sikka Vs. SDMC & Ors.
Page No.95 of 102Similar has been the view of Hon'ble Supreme Court in the matter of Harkesh Chand vs. Krishna Gopal Mehta and Ors. While deciding Civil Appeal no. 1778 of 2000, vide order dated 13.02.2017 where it has been held that "Any statutory instrument issued under the repealed enactment continues in force as if it were issued under the reenacted provisions to the extent that it is not inconsistent with the re enacted provisions."
195. In view of these observations, it is held that the impugned actions of the defendants no. 1, 4 to 9 are unlawful and unauthorised whereby they demolished the suit property bearing no. B5, Lane 14, Western Avenue, Ekta Marg, Sainik Farms, New Delhi by acting in gross violation of law as well as without any authority/sanction of law. The suit property is held to be protected under Delhi Laws (Special Provisions) Act, 2006 as well as under statutory moratorium in view of Delhi Laws (Special Provisions) Act 2007 specifically providing that "It shall be deemed to have come into force on the 19th day of May, 2007"
read with Section 6 of the General Clauses Act.
196. In the matter of Rajeev Malhotra vs. Union of India and others, WP(C) 6734/2000, vide order dated 13.01.2010, Hon'ble High Court of Delhi observed that the matter has been pending since 2000 and it is not clear from a perusal of the order sheets and the pleadings what exactly of the stand of the Government of India, namely, whether they would like to regularise Sainik Farms or not regularise Sainik Farms and treat it as an unauthorised colony. If CS No. 5984/16 Ashok Sikka Vs. SDMC & Ors.
Page No.96 of 102Sainik Farms is to be treated as an unauthorised colony, will the Government of India demolish the unauthorised construction and rehabilitate the residents of Sainik Farms or not. Thus it is seen that even Hon'ble High Court of Delhi was conscious of the concern for residents of Sainik Farms and the need to rehabilitate them.
197. The suit property was constructed prior to the year 2000 and is an old property however the defendants have attempted to malafidely justify their illegal action under the garb of order dated 9.05.2007 in CWP no. 6734/2000 passed by Hon'ble High Court which even otherwise was not enforceable in view of provisions of Delhi Laws (Special Provisions) Act 2006 as the said provisions protected his house i.e. suit property from any demolition under DMC Act. In the said writ, Mr. U.S.Chauhan (JE) MCD and Mr. R.S. Sehrawat (JE) MCD were held liable for committing contempt of court for filing false affidavits and taking liberties with truth in order to mislead the Hon'ble High Court and the contempt was held to be of such a nature that it tends to substantially interfere with the due course of justice. Both of them were sentenced to undergo simple imprisonment for a period of 30 days and to pay a fine of Rs. 25,000 each vide order dated 01.06.2001. Had these facts as enumerated above come to the knowledge of the Ho'ble High Court, they might have been subjected to undergo similar sentences.
198. The defendant no. 4 to 9 are existing/former officials of defendant no. 1 who for malafide purposes and actuated by corrupt motives transgressed/went outside their prescribed scope of duties and for their personal ends/benefits of illegal gratification took the impugned actions knowingly, deliberately and wantonly for CS No. 5984/16 Ashok Sikka Vs. SDMC & Ors.
Page No.97 of 102their private interests by merely adopting the pretense of the alleged court order whereas there was none.
199. More than 7 years have elapsed since the disposal of the said writ and the Government of India has still not formulated any policy in respect of Sainik Farms and its residents despite giving an assurance before the Hon'ble High Court on 11.02.2010 in WPC No. 6734/2000 that a policy decision in respect of Sainik Farms will be taken one way or the other by 31.12.2010 and it was then that the said petition was disposed off by observing that nothing further survives in the matter while clarifying that the earlier orders passed have not been vacated with the disposal of the writ petition.
200. The plaintiff has been suffering the brunt of illegal and unauthorised demolition at the hands of defendant no. 1, 4 to 9 since 2007. In view of observations made hereinbefore, plaintiff is entitled to restoration of suit property by restoring status quo ante as prevailing on 22 nd May 2007 in relation to suit property and the cost of the reconstruction of the same shall be borne by defendant no. 1, 4 to 9 jointly and severally. The suit property shall be entitled to all those protections which it was enjoying or would have enjoyed prior to 22.05.2007, from 22.05.2007 to till date as well as in future as if the suit property was never demolished and rebuilt and shall be treated as a building which was constructed prior to the year 2000.
201. The plaintiff has also claimed damages to the tune of Rs. 1 crore with CS No. 5984/16 Ashok Sikka Vs. SDMC & Ors.
Page No.98 of 102interest for the loss suffered, damages, reputation, rented accommodation, loss of valuable etc. due to impugned actions of defendants which were illegal, malafidely, corrupt, beyond of authority/jurisdiction and also outside their line of duty.
202. The defendants despite being aware of provision of Delhi Laws (Special Provisions) Act 2006 and that the said provisions protected suit property from any demolition under DMC Act in blatant disregard to the law and procedure, without any authority or sanction of law, or court order with intention to damage and deprive the plaintiff of his lawful peaceful possession of the suit property, trespassed into the same on 23.05.2007 early morning, without serving any prior statutory notice under DMC Act, carried out illegal and unauthorised demolition on 23, 24, 25, 26 and 30 May 2007 for five days and the plaintiff was evicted from suit property and destroyed the property in possession of the plaintiff in the scorching sun of the month of May 2007 from May 2326 and then on May 30, 2007.
203. Plaintiff has submitted that during that period the household goods of the plaintiff including the costly articles like electronic gadgets, clothes, furniture, jewelry, books, important documents, antiques collected by the plaintiff over the period of time were scattered on the street and many got destroyed and many were stolen/misappropriated by the labourers/persons residing nearby and passersby or onlookers. The submissions of the plaintiff are correct in view of the proceedings recorded by defendant no. 1 itself in respect of demolition of the suit property carried out by defendants on 23.5. 2007 to 26.5.2007 and then on 30.05.2007. Thus this observation also flows from the admissions made by the defendants.
CS No. 5984/16Ashok Sikka Vs. SDMC & Ors.
Page No.99 of 102204. The submissions of the plaintiff inspire confidence as the court can take judicial notice of the kind of trauma and misfortune the plaintiff must have gone through at the relevant time. The submissions of the plaintiff are taken to be correct that he was incapacitated due to the abrupt circumstance of allround excessive demolition and could not keep control or vigil over so many teams attacking different rooms. Due to the lack of prior intimation given by the defendant, plaintiff could not shift those household items to some other secure place.
205. The plaintiff and his family were regularly living inside the suit property for years together and were in settled possession. Yet no notice to vacate the premises for demolition action to be carried out was issued by the defendant was served upon the plaintiff or anybody else even though the issuance of such a notice under section 343 of DMC Act, 1957 is a standard procedure adopted by the MCD in relation to occupied properties being subjected to demolition action.
206. The defendants 4 to 9 thus conspired to cause wrongful loss to the plaintiff and the plaintiff suffered in this whole process whereby lifetime earnings/savings were destroyed by the defendant without the sanction authority of law and only due to the illegal and unauthorised activities of the defendant herein. The facts of the case demonstrate colourful misuse of power by defendant no. 1 and its office bearers, i.e. defendants 4 to 9.
207. Plaintiff has also submitted that because of illegal and unauthorised activities of the defendant, his family members including the lady members of the family as well as a newborn baby were made to remain exposed in the scorching heat of the summer. The life of the plaintiff and his family members including those of infant was put to jeopardy and under severe risk.
CS No. 5984/16Ashok Sikka Vs. SDMC & Ors.
Page No.100 of 102208. In light of the facts of the present matter, the court can take judicial notice of the loss, damage, trauma suffered by the plaintiff on account of the demolition of the suit property caused by the defendants no. 1, 4 to 9 and that too without serving upon any prior notice much less notice under section 344 of DMC Act. This all could have resulted in loss of life of the plaintiff or any other member of the family and the manner in which the house of the plaintiff was demolished by the defendants no. 1, 4 to 9 does not deserve any lenience and thus plaintiff is entitled to amount of ₹ 50 lakhs to be recovered from the defendants 1, 4 to 9 towards the damages for the loss suffered, damages, reputation, rented accommodation, loss of valuable etc. due to impugned actions of defendants no. 1, 4 to 9 which were illegal, malafide, corrupt, beyond authority/jurisdiction and also outside their line of duty to be paid by them jointly and severally to the plaintiff towards damages suffered by the plaintiff consequent to unauthorised demolition action taken against the suit property by the defendants no. 1, 3 to 10 to be borne by them jointly and severally.
Relief
209. The suit is therefore decreed in the following terms:
(a) A decree of declaration is passed in favour of the plaintiff and against defendant number 1, 4 to 9 declaring that the actions of the defendant number 1, 4 to 9 were unlawful and unauthorised whereby they demolished the house of the plaintiff i.e. suit property bearing number B5, Lane 14, Western Avenue, Ekta Marg, Sainik Farms, New Delhi - 110062 by acting in gross violation of law, as well as without any authority/sanction of law CS No. 5984/16 Ashok Sikka Vs. SDMC & Ors.Page No.101 of 102
(b) A decree of mandatory injunction is passed in favour of the plaintiff and against defendant no. 1, 4 to 9 with direction to restore suit property status quo ante as prevailing on 22nd May 2007 in relation to suit property and the cost of the same shall be borne by defendant no. 1, 4 to 9 jointly and severally. The suit property shall be entitled to all those privileges and protections even in respect of tax liabilities and exemptions which it was enjoying before 22.05.2007 or would have enjoyed from 22.05.2007 to till date as well as in future as if the suit property was never demolished and rebuilt and shall be treated as a building which was constructed prior to the year 2000. The defendants no. 1, 4 to 9 are directed to get the malba removed from the suit property within 15 days and start the reconstruction of the suit property immediately thereafter ensuring quality of construction as well as material used for the same to be of superior quality to be raised availing the services of reputed architect to the same extent as it existed prior to demolition before 22.05.2007(as per site plan on 409411 of plaintiff's documents Volume II) and complete the construction within one year from date of decree or in the alternative defendant no. 1, 4 to 9 are directed to pay Rs. 1.5 crores jointly and severally to the plaintiff to be paid within one month of the date of decree towards construction of the suit property for restoring suit property status quo ante as prevailing on 22 nd May 2007 with same privileges and protections which it was enjoying before 22.05.2007 or would have enjoyed from 22.05.2007 to till date as well as in future as if the suit property was never demolished and rebuilt and shall be treated as a building which was constructed prior to the year 2000. Each CS No. 5984/16 Ashok Sikka Vs. SDMC & Ors.Page No.102 of 102
days delay on part of defendant no. 1, 4 to 9 to make aforesaid payment of Rs. 1.5 crores shall be subject to cost of Rs. 1000 each per day to be paid by defendant no. 1, 4 to 9 to plaintiff.
(c) A decree of ₹ 50 lakhs with interest @10% pa from the date of the demolition till the recovery of this amount is passed in favour of the plaintiff and against the defendants no. 1, 4 to 9 to be paid by them jointly and severally to the plaintiff towards damages suffered by the plaintiff consequent to unauthorised demolition action taken against the suit property by the defendants no. 1, 4 to 9. Decreetal amount including interest be paid by defendant no. 1, 4 to 9 within 30 days from today failing which the plaintiff will be entitled to recover additional amount of Rs. 20,000 p.m. to be recovered from defendant no. 1, 4 to 9 jointly and severally till the whole amount is so paid by them.
210. Decree sheet be drawn accordingly. Cost of the suit is also awarded in favour of the plaintiff.
211. Copy of the order be sent to defendant no.1 today itself for time bound compliance.
212. Record of WP (C ) no. 6734/2000 be sent back to Hon'ble High Court.
213. File be consigned to record room after necessary compliance.
Announced in the open court (Dr. Neera Bharihoke)
on 23.10.2017 ADJI,South District,
All pages signed Saket Courts, New Delhi
CS No. 5984/16
Ashok Sikka Vs. SDMC & Ors.