Delhi High Court
Jayshree Oza vs Rakesh Mohan & Ors. on 29 April, 1998
Equivalent citations: 1998IVAD(DELHI)770, 74(1998)DLT11, 1998(46)DRJ582
Author: J.B. Goel
Bench: J.B. Goel
JUDGMENT J.B. Goel, J.
1. The plaintiff seeks an injunction in this suit. It is alleged that she is the owner of the premises on the second floor of property No. B-107, defense Colony, New Delhi which she purchased from defendant No. 3 by means of an agreement to sell dated 31.10.1997 for a consideration of Rs. 15 lakhs which was paid by her at the time of the agreement, she has occupied the premises and is using the same for her residence; that at the time of the agreement defendant No. 3 had represented and assured her that the property was free from all kinds of encumbrances and that the construction had been raised after obtaining sanction according to law; that on 23.3.1998 servant quarter on the roof top has been was sealed in pursuance of an order of sealing on the ground of certain deviations in construction against sanctioned plan. It is alleged that this order of sealing is illegal and void as no notice before sealing or other show cause notice has been served upon her; she being in possession and owner for consideration was entitled to such notice and thus procedure established by law was not followed which is against the Delhi Municipal Corporation Act, 1957 (for short 'the Act'). The action is mala fide also and for ulterior motives. Authority of defendant No. 1 to issue such notice is also disputed. The plaintiff has sought permanent injunction restraining the defendants from interfering in her peaceful use and enjoyment of the premises in question and from taking any action for sealing the same and/or to direct the defendant No. 3 to rectify all the violations at his costs and to compensate her for the loss.
2. I have heard learned Counsel for the plaintiff at the preliminary stage about the maintainability of the suit.
3. First point is whether the plaintiff has locus standi to file present suit. Plaintiff claims to have purchased the premises by means of agreement to sell dated 31.10.1997 from defendant No. 3. The agreement to sell recites that one Naveen Gupta son of Shri N.D. Gupta is the lessee of the land bearing Plot No. 2, Block-B Site No. 8, defense Colony, New Delhi (which now is B-107) by means of a registered lease deed dated 25.1.1996 and that the defendant No. 3 had purchased the said plot of land from the aforesaid Naveen Gupta by means of an agreement to sell dated 22.2.96 and after having so purchased defendant No. 3 has constructed a building there on. The portion of the property agreed to be sold to the plaintiffs is second floor with one servant quarter on the terrace. Consideration of Rs. 15 lakhs is acknowledged to have been received and possession given to her.
4. Under Section 54 of the Transfer of Property Act, mere agreement to sell does not create any interest in the property in favour of the proposed vendee. Defendant No. 3 himself had entered into an agreement to sell with the owner, Naveen Gupta and had no transferable interest in the property. He could not transfer the interest which he did not have. Plaintiff thus has acquired no interest in the property. And Naveen Gupta continues to be the owner of the property being owner of leasehold rights in the land. Any construction raised on the land thus had been made by the said owner or at his instance.
5. Plaintiff has placed on record a copy of the Order passed under Section 345-A of the Act with endorsement at the top "Sealed on 23.3.98". This notice/order recites the unauthorised construction/work comprising "Deviation against sanctioned Plan No. 8/B/96 dated 24.6.96 excess coverage and infringement in set backs at basement,GF,FF,SF-booked vide file No. 517/B/UC/Cent.Zone/96 dated 3.10.1996 carried on or completed by and at the instance of Shri Naveen Gupta and further that even after the show cause notices under Sections 343/344 of the Act he has carried out unauthorised constructions, and that a show cause notice dated 6.1.1997 under Section 345-A of the Act had also been given by defendant No. 1 to Shri Naveen Gupta.
6. This also shows that the unauthorised construction has been raised in deviation of the sanctioned building plan by the owner Shri Naveen Gupta to whom notices and order under Sections 343/344 as well as notice under Section 345-A of the Act had been given and that notwithstanding the notices, further construction has been raised and no reply appears to have been given to these notices.
7. The plaintiff has alleged that no notice before taking action of sealing was given to her and this is against the procedure prescribed under the Act. For this purpose relevant provisions of the Act have to be considered.
8. Under Section 344, if any unauthorised construction is commenced, the Commissioner may require" the person at whose instance the building or work has been commenced or is being carried on" to stop the same forthwith. Section 343 empowers the Commissioner to make an order directing such unauthorised erection or work to be demolished by "the person at whose instance the building or the work has been commenced or is being carried on or has been completed" after giving an opportunity of being heard. Section 345-A empowers the Commissioner to order sealing of any such erection or work before ordering demolition under Section 343 or stoppage of work under Section 343 or Section 344.
9. These provisions thus provide that "a person at whose instance the erection or work has been commenced or is being carried on or has been completed has been conferred with the following rights:
i) A direction by the Commissioner to stop the work of unauthorised construction;
ii) A direction by the Commissioner to demolish, such erection or work if the work 'is in progress or has been completed.
iii) Before action of demolition is taken to a reasonable opportunity to showcause why such order shall not be made.
10. In the first proviso to sub-section (1) of Section 343 for the purpose of service of showcause notice the word 'Person' would mean "the person at whose instance the erection or work has been commenced or is being carried on or has been completed." Any person aggrieved by an order of demolition under Section 343, or order of stoppage of any erection or work or order passed under Section 345-A of the Act may prefer an appeal before the Appellate Tribunal constituted under the Act under Section 343 or Section 347-B of the Act. Section 347-E bars the jurisdiction of Court to entertain any suit, application or other proceedings in respect of any order or notice appealable under Section 343 or Section 347-B and no such notice or order shall be called in question otherwise than by preferring any appeal under those sections. These provisions are thus clear that the unauthorised construction would have been raised either by the owner or at his instance and in both the cases the construction is at the instance of the owner and it is the owner who would be entitled to the notice/order under Sections 343/344/345-A of the Act and that notice or order can be challenged by appeal before the Appellate Tribunal. When an owner has no right to file a suit to challenge such notice or order, any person with lesser right and who claims right or interest from him or an other person would have no better rights than him.
11. The plaintiff as noticed earlier, has got no interest or independent right in the property. She claims to be in possession of the premises in pursuance of an agreement to sell executed between her and defendant No. 3. Defendant No. 3 is not owner of the property. He was only a builder and he himself earlier had entered into an agreement to sell with the owner of the property. Both defendant No. 3 and plaintiff thus had no interest in the property. Plaintiff or defendant No.3 thus are not entitled to any notice or order. It is only the owner who was entitled to such notice and the remedy of such owner is in appeal before the Tribunal. The plaintiff thus have no independent right and the present suit at her instance is not maintainable. It has been held in Ram Narain Vs. MCD, , that a tenant is not entitled to a notice under Section 343. In ANZ Grindlays Plc. Bank Vs. Commissioner, MCD, 1995 (34) DRJ 452 this case has been followed it has been further held that neither a tenant nor a builder who is not the owner has got any independent right to claim notice under Sections 343,344/345-A.
12. The remedy, if any, of an owner or the builder for that purpose, is to file an appeal before the Tribunal appointed under Section 347-A of the Act, if they are aggrieved person. They cannot file a suit before the Court. This suit for injunction challenging the notice or order of sealing is thus not maintainable.
13. An objection has also been taken that the notice in question has been issued by defendant No. 1 who was not competent to exercise the power of the Commissioner under Section 491 of the Act. As the plaintiff has no locus standi to file this suit, this objection also could not be raised here. Moreover, the Commissioner could delegate his powers under Section 491 to any of his Officers. No averment has been made that plaintiff had made any enquiries to find out whether such power has been delegated to defendant. No. 1 or not. Only vague allegation has been made which does not amount to a plea which can be taken notice of. This objection, thus, also has no merit.
14. The plaintiff has also claimed an injunction against defendant No. 3 in the alternative seeking direction to rectify the violations.
15. Defendant No. 3 had no saleable interest in the property and the plaintiff has also not acquired or got any interest in the property. For removal of the unauthorised construction only the owner is answerable. No cause of action arises in favour of the plaintiff to file this suit for this relief also.
16. The suit thus is not maintainable and the same is accordingly dismissed at admission stage.