Delhi High Court
R.A. Bhujwala And Ors. vs Municipal Corporation Of Delhi And Ors. on 28 September, 1995
Equivalent citations: 1995(35)DRJ162, 1996 A I H C 3711, (1995) 35 DRJ 162, (1996) 4 LANDLR 341, (1996) 2 RRR 443
Author: N.G. Nandi
Bench: N.G. Nandi
JUDGMENT N.G. Nandi, J.
(1) In the suit for perpetualinjunction, seeking to restrain defendants1 & 2 from acting upon its order/notice dated 19.8.94, and demolishing any part of the property of the plaintiffs i.e. C-191, Sarvoday Enclave, New Delhi, the plaintiffs, the three different occupants of different portions of the said property, by this Ia seek to restrain the defendants in identical terms pending hearing and disposal of the suit.
(2) It is not in dispute that plaintiff No.1, plaintiff No.2 and plaintiff No.3 are the owners and occupiers of ground floor, including the basement, the first floor and second floor respectively of the building No. C-191, Sarvoday Enclave, New Delhi and that all the plaintiffs are the subsequent purchasers of their respective portions. In other words, the building admittedly came to be constructed before the plaintiffs purchased and occupied their portions.
(3) Defendants gave notice under Section 349 of the Delhi Municipal Corporation Act, 1957 (hereinafter referred to as "the Act"), requiring the plaintiffs to vacate the portions in their possession and occupation stating that certain portion of basement, ground floor and second floor, has been without the sanction of defendant No.1, and therefore, unauthorisedly erected and liable to be demolished.
(4) That defendant No.1 did not serve any notice of demolition under Section 343 of the Act to any of the plaintiffs contending that the unauthorised structure, raised/erected, has been at the instance of one Pritam Singh and not the plaintiffs. Admittedly, no notice to show cause under Sec. 343(1) of the Act as to why the impugned structure should not be demolished, has been served to any of the plaintiffs. It is also the admitted position that no completion/occupation certificate in respect of impugned structure or the portions has been granted by defendant No.1.
(5) The only question that arises in this proceeding, is whether the plaintiffs or any of them is entitled to show cause notice under Section 343(1) of the Act or not. It may be stated at the cost of repetition that the impugned structure is admittedly not commenced at the instance of any of the plaintiffs. In the say of defendant No.1, it is one Pritam Singh, at whose instance the impugned structure has been erected and that defendant No.1 has served notice u/s. 343(1) of the Act to said Pritam Singh.
(6) In the submission of Mr. Phoolka, each of the plaintiffs are entitled to notice u/s. 343(1) of the Act because they are the owners of the portion in their occupation; that the building was completed in 1992; that defendant No.1 enhanced the property tax assessment; that the plaintiffs should be given a chance and also entitled to know what are the deviations even on the principle of Audi Alterm Partem, the plaintiffs are entitled to notice to show cause and that the plaintiffs have been residing in the portions, parts of which are sought to be demolished by the defendant. In the submission of Mr. Jolly, counsel for defendant No.1, as the impugned structure or work did not commence at the instance of the plaintiffs, notice u/s. 343(1) is not required to be served upon any of the plaintiffs.
(7) Section 343 of the Act deals with the order of demolition and stoppage of buildings and works in certain cases and appeals. sub-Sec.(1) thereof provides ........."the Commissioner may, in addition to any action that may be taken under this Act, make an order directing that such erection 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 therefore has been delivered to that person), as may be, specified in the order of demolition". The proviso to sub-Sec.(1) requires 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". Thus, proviso to Sub-Sec.(1) requires a show cause notice to the person, at whose instance the erection or work has been commenced before, under sub- Sec.(1), such a person could be required to demolish the work.
(8) SUB-SECTION (2) provides that "any person aggrieved by an order of the Commissioner made under sub-section (1) may prefer an appeal against the order to the Appellate Tribunal/Administrator within the period specified in the order for the demolition of the erection or work to which it relates". Thus, the remedy for the person aggrieved with the order under sub-Section (1) is by way of an appeal to the Appellate Tribunal in the first instance.
(9) It has been observed in the order dated 2.4.93 in C.M.(M) 59/93 by the learned Single Judge of this Court "that the unauthorised building will not become regularised or authorised simply because the construction has been sold to someone else or a tenant has been inducted or an agreement to sell has been executed in favor of some other person". In the instant case, the plaintiffs are the subsequent owners and the occupiers of the ground floor, first floor and second floor respectively. It may be appreciated that property may go on changing hands and that is why sub- Sec.(1) and proviso thereto refer to the person at whose instance the work has been commenced. It may be appreciated that the construction has to be commenced in accordance with the plan sanctioned by the local authority, which has to be, as per the Building Bye- laws and Rules and the person who has obtained sanction and has erected or commenced the work would be liable for any illegality in the construction and that is why the the subsequent owners or occupiers would not be liable for demolition of such work and therefore not entitled to notice to show cause as provided in proviso to sub-Sec.(1) of Section 343.
(10) It will be appreciated that sub-Section (4) of Sec. 343 contains bar of suit, application or order, proceedings 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.
(11) In the case of Shiv Kumar Chadha versus Municipal Corporation of Delhi & Ors. reported in 50 (1993) D.L.T. page 492 (SC), it has been held that : @SUBPARA = "......There can not be two opinions that the regulations and bye-laws in respect of buildings, are meant to serve the public interest. But at the same time it cannot be held that in all circumstances, the authorities entrusted with the demolition of unauthorised constructions, have exclusive power, to the absolute exclusion of the power of the Court. In some special cases, where "jurisdictional error" on the part of the Corporation is established, a suit shall be maintainable. According to us: (1) The Court should not ordinarily entertain a suit in connection with the proceedings initiated for demolition, by the Commissioner, in terms of Section 343(1) of the Corporation Act. The Court should direct the persons aggrieved to pursue the remedy before the Appellate Tribunal and then before the Administrator in accordance with the provisions of the said Act. (2) The Court should entertain a suit questioning the validity of an order passed under Section 343 of the Act, only if the Court is of prima facie opinion that the order is nullity in the eyes of law because of any "jurisdictional error" in exercise of the power by the Commissioner or that the order is outside the Act.
(12) It will be seen from the above that it is only in case of jurisdictional error, the civil court will have the jurisdiction and the suit challenging the demolition order under section 343(1) would be maintainable and in no other case. In the instant case, it is not the say of the plaintiffs that the order of demolition under sub-Sec.(1) of Section 343 passed by defendant No.1 is a nullity in the eyes of law because of any jurisdictional error in exercise of the powers by the Commissioner nor it is the say of the plaintiffs that the said order of demolition is outside/beyond the Act. This would mean prima facie that the suit challenging the demolition order passed under Sec. 343(1) of the Act, is not maintainable, as there does not appear prima-facie any jurisdictional error in exercise of the power by the commissioner, as also that the order of demolition being beyond the Act.
(13) As seen above, remedy for any person aggrieved by the order of demolition passed under Section 343(1) of the Act is by way of an appeal under sub-section (2) before the Appellate Tribunal/ Administrator and as observed by the Supreme Court in the judgment (supra), the court should direct the person aggrieved to pursue the remedy before the Appellate Tribunal and then before the Administrator in accordance with the provisions of the Act.
(14) In the case of Anz Grindlays Bank Plc versus The Commissioner, Mcd And Others reported in 1995(II) Ad (Delhi) page 573. Considering the provisions of Section 343 and 344 of the Act, it is held by the Single Judge of this Court that the person entitled to the notice is building owner only - tenant or builder/developer/contractor not entitled to notice. It is further held while considering the provisions of Section 347B and 344(2) of the Act that right of appeal vests in person aggrieved - order of sealing, stoppage or demolition - tenant and builder claiming under building owner though not entitled to notice may still prefer an appeal. In this case, before the Single Judge, it was at the instance of the owner of the building that the work had commenced and the work was erected and that the tenant and the builder were claiming through the building owner. In my opinion, this decision would be of no application to the present case.
(15) The principle of Audi Alterm Partem enunciated in the case of N.S. Tewana versus Union of India & Others by the Db of this court will have no application to the facts of the present case for the reason that proviso to sub-sec.(1) of sec. 343 of the Act, refers to the notice to show cause to the person at whose instance the erection or the work has been commenced (admittedly not the plaintiff in this case) and also looking to the fact that any person aggrieved by the order under sub- sec.(1) which would also include a person other than the person, at whose instance the erection or work has been commenced, has been given right to file appeal under sub-section (2) as aforestated and that the civil suit under sub-sec.(4), as aforestated, is barred.
(16) The plaintiffs being not the persons, at whose instance the impugned erection or work has been commenced, would not be entitled to the notice to show cause under proviso to sub-sec.(1) of Section 343 of the Act. The suit, in view of sub-section (4) of Section 343 of the Act would not be prima-facie maintainable for the reasons aforestated and therefore the plaintiffs shall not be entitled to the relief of injunction and the Ia liable to be dismissed. Ordered accordingly.
(17) However, the plaintiffs are directed to pursue the remedy before the Appellate Tribunal and then before the Administrator in accordance with the provisions of the Act within four weeks from today. This order of dismissal of the Ia and vacation of the order dated 23.9.1994, shall be effective/operative after four weeks from today.