Delhi District Court
Sunder Dass Sachdeva vs ) Lalit Kumar Sharma on 20 August, 2015
IN THE COURT OF SH. GURVINDER PAL SINGH
ADDITIONAL DISTRICT JUDGE01 (CENTRAL)
TIS HAZARI COURTS, DELHI
MCA - 12/2015
Unique I. D. No. 02401C0412142015
Sunder Dass Sachdeva
S/o Late Sh. Gurditta Mal,
C/o 3279, Bazar Sita Ram,
Lal Darwaja, Chandni Chowk,
Delhi110006. ......Appellant
Versus
1) Lalit Kumar Sharma,
S/o Late Sh. Ganga Prashad Sharma,
R/o 214B, Second Floor, Prakash Mohalla,
East of Kailash, New Delhi.
2) Anil Kumar Sharma,
S/o Late Sh. Ganga Prashad Sharma,
R/o 3258, Lal Darwaja, Bazar Sita Ram,
Delhi110006.
3) North Delhi Municipal Corporation
Through its Commissioner,
Civic Centre, JLN Marg, Minto Road,
New Delhi. .......Respondents
MCA12/2015
Sunder Dass Sachdeva Vs. Lalit Kumar Sharma & Ors. Page 1 of 15
Date of institution of appeal : 07.08.2015
Date of reserving the order : 10.08.2015
Date of pronouncement of order : 20.08.2015
ORDER
1. The present appeal under Order XLIII Rule 1 (r) of the Code of Civil Procedure (in short CPC), is directed against the impugned order of Ld. ASCJ (Central) dated 24.07.2015, thereby dismissing the application under Order XXXIX Rules 1 & 2 CPC in suit of appellant/ plaintiff for permanent injunction bearing Suit No. 809/2013, titled "Sunder Dass Sachdeva Vs. Lalit Kumar Sharma & Ors."
2. Feeling aggrieved with the order of the trial court, present appeal was preferred by the appellant/plaintiff on the premise that (i) impugned order is bad in law and facts and has been passed in haste in a mechanical manner without going through its facts, circumstances and submissions of the appellant; (ii) Ld. Trial Court has failed to appreciate that the respondents/defendants no. 1 and 2 with malafide intention are MCA12/2015 Sunder Dass Sachdeva Vs. Lalit Kumar Sharma & Ors. Page 2 of 15 trying to get evicted the suit shop from the appellant/plaintiff since long on one pretext or other and filed various cases against the appellant/plaintiff to get evicted the suit shop on different facts and grounds; (iii) Ld. Trial Court has ignored the facts and material available on record and relied upon the facts and documents filed by respondents/defendants and the fact that the notice u/s 348/349 of DMC Act was issued by respondent/defendant no3 in connivance and hand in gloves with the respondents no. 1 and 2 just to get evicted the suit shop from the appellant/plaintiff; (iv) appellant/plaintiff was never served with any show cause notice and no opportunity was given to the appellant/plaintiff of being heard; (v) it has been wrongly concluded that the suit shop is in dilapidated condition and is dangerous though from the photographs filed and relied upon by the appellant/plaintiff it is crystal clear that the suit shop is not in dilapidated condition or dangerous to anyone; (vi) appellant/plaintiff is lawful tenant since long and has never defaulted in making the payment of rent; (vii) suit shop is the only source of income of the appellant/plaintiff and his family members and if respondents no. 1 and 2 succeed in their nefarious design and ill motives to get vacated the suit shop from the appellant, the appellant/plaintiff and MCA12/2015 Sunder Dass Sachdeva Vs. Lalit Kumar Sharma & Ors. Page 3 of 15 his family members would suffer a lot financially, economically besides mental pain and agony; (viii) respondents/ defendants no. 1 and 2 are under legal obligation to get the same repaired/reconstructed and restore the possession of the appellant/plaintiff; (ix) impugned order is based on conjecture and surmises; (x) impugned order suffers from various legal irregularities and infirmities; (xi) appellant/plaintiff had a very good prima facie case in his favour and balance of convenience also lies in her favour; (xii) appellant/plaintiff shall suffer irreparable loss and injury which cannot be compensated in any terms.
3. I have heard the arguments of Sh. Rajesh Bhatia, Ld. counsel for appellant/plaintiff, perused the record of this appeal and the entire record of the trial court received on requisition and have given my thoughts to the contentions put forth. Ld. counsel for appellant argued in terms of averments of appeal seeking setting aside of impugned order.
4. Appellant/plaintiff had pressed before Ld. Trial Court his prayer for interim injunction, seeking restraint against respondents/ defendants from demolishing the suit shop bearing no. 3279, Bazar Sita MCA12/2015 Sunder Dass Sachdeva Vs. Lalit Kumar Sharma & Ors. Page 4 of 15 Ram, Lal Darwaja, Chandni Chowk, Delhi110006, till the disposal of the suit.
5. In its written statement before the Trial Court, Respondent no3 North DMC elicited of receipt of complaint dated 04.10.2013 with respect to dangerous/dilapidated condition of the property bearing no. 3277, 3278 and 3279, Lal Darwaja, Bazar Sita Ram, Delhi110006 of Respondent no2. Before said complaint, Deputy Commissioner, City Zone had inspected the property and vide order dated 01.10.2013 had directed the concerned staff to take immediate action as per provisions of law. Consequently, the field staff of Dangerous Building Cell of Respondent no3 had inspected the property in question on 08.10.2013. During inspection it was observed by said field staff that the property is in dangerous/dilapidated condition that cannot be repaired. The inspection report dated 08.10.2013 aforesaid also incorporated the following observations : "1. The property which is located at the corner of two lanes consists of Ground floor and First floor the property is quit old.
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2. Major cracks exist in outer walls/load bearing walls, roof slab and sensitive locations (joints between structure elements) of the structure.
3. Spalling of plaster and brick at some part of the building.
4. Wooden karris/Tiron beam, red stone slab are in dilpidated condition and needs to be demolished.
5. Swelling of wall is found on some portion of outer walls of the building."
Photographs of such condition of the inspected property aforesaid are part of Trial Court record, showing its dilapidated condition. Notice u/s 349 of DMC Act of date 09.10.2013 was issued by Respondent no3 and served upon owner/occupier including appellant describing afore elicited dilapidated/dangerous condition of the property in question asking to vacate the property within three days. Notice u/s 348 of DMC Act dated 09.10.2013 was also issued by Respondent no3 and served upon owner/occupier of the property in question including appellant asking to demolish the said dangerous/dilapidated condition property within seven days as it was dangerous for pedestrians and occupants.
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6. Sections 348 and 349 of DMC Act read as under : "348. Removal of dangerous buildings (1) If it appears to the Commissioner at any time that any building is in a ruinous condition, or likely to fall, or in any way dangerous to any person occupying, resorting to or passing by such building or any other building or place in the neighbourhood of such building, the Commissioner may, by order in writing require the owner or occupier of such building to demolish, secure or repair such building or do one or more of such things within such period as may be specified in the order, so as to prevent all cause of danger therefrom.
(2) The Commissioner may also, if he things fit, require such owner or occupier by the said order either forthwith or before proceeding to demolish, secure or repair the building, to set up a proper and sufficient hoard or fence for the protection of passersby and other persons, with a convenient platform and handrail wherever practicable to serve as a footway for passengers outside of such hoard or fence.
(3) It it appears to the Commissioner that danger from a building which is in a ruinous condition or likely to fall is imminent, he may, before making the order aforesaid, fence off, demolish, secure or repair the said building or take such steps as may be necessary to prevent the danger. (4) If the owner or occupier of the building does not comply with the order within the period specified therein, the MCA12/2015 Sunder Dass Sachdeva Vs. Lalit Kumar Sharma & Ors. Page 7 of 15 Commissioner shall take such steps in relation to the building as to prevent all cause of danger therefrom. (5) All expenses incurred by the Commissioner in relation to any building under the section shall be recoverable from the owner or occupier thereof as an arrear of tax under this Act.
349. Power to order building to be vacated in certain circumstances (1) The Commissioner may be order in writing direct that any building which in his opinion is in a dangerous condition or is not provided with sufficient means of egress in case of fire or is occupied in contravention of section 346 be vacated forthwith or within such period as may be specified in the order :
PROVIDED that at the time of making such order the Commissioner shall record a brief statement of the reasons therefor.
(2) If any person fails to vacate the building in pursuance of such order the Commissioner may direct any police officer to remove such person from the building and the police officer shall comply with such direction accordingly.
(3) The Commissioner shall, on the application of any person who has vacated, or been removed from any building in pursuance of an order made by him, reinstate such person in the building on the expiry of the period for which the order has been in force according as the circumstances prevailing at that time permit."
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7. In the case of Municipal Corporation of Delhi Vs. Daulat Ram (Died) represented by LRs, ILR (1971) 2 Del 711: 1971 SCC online Del 130, it was held by Hon'ble Mr. Justice V.S. Deshpande that "348 (1) expressly confers a statutory discretion on the Commissioner by the words "if it appears to the Commissioner". The discretion is to decide whether "any building is in a ruinous condition". The reason is that the question whether a building is in a ruinous condition is of public interest and is not a matter only of the private interest of its owner or of its tenant. This is why the power is given to the Commissioner to form the opinion whether the building is in a ruinous condition or not. By giving this power exclusively to the Commissioner, the Legislature has correspondingly withdrawn the question whether the building is in a ruinous condition or not from the jurisdiction of the Courts."
8. In the case of Municipal Corporation of Delhi Vs. Ramesh Chander & Anr., ILR (1979) 2 Del 499 : 1979 SCC online Del 160 Hon'ble Mr. Justice Avadh Behari Rohatgi inter alia held in paras11, 12, 13 and 14 as follows : MCA12/2015 Sunder Dass Sachdeva Vs. Lalit Kumar Sharma & Ors. Page 9 of 15 "The Municipal Corporation of Delhi is a statutory body constituted under the Delhi Municipal Corporation Act, 1957. It is a public body. There is a positive public duty on the Corporation "to prevent all cause of danger" from buildings which are "in a ruinous condition, or likely to fall or in any way dangerous to any person occupying, resorting to or passing by such building or any other building or place in the neighbourhood of such building." To this end the public authority is clothed with statutory powers contained in sections 348 and 349. The Commissioner is a public authority armed with statutory powers. This means that there is a public duty imposed upon him by law. If there is a duty arising from the statute those who act negligently in the performance of that public duty cannot be relieved of their liability in damages.
An action for damages for breach of a statutory duty cannot be accurately described as statutory negligence. An action for breach of a statutory duty which involves the notion, of taking care not to injure is for the purpose of action for damages equivalent to negligence.
That there is a statutory duty to maintain buildings and repair them is also clear from section 461 which provides for punishment for contravention of the provisions of the Act or for failure to comply with the order of direction lawfully given. The penalties are set MCA12/2015 Sunder Dass Sachdeva Vs. Lalit Kumar Sharma & Ors. Page 10 of 15 out in the Twelfth schedule to the Act. This is a criminal sanction for any disobedience, whether or not it causes any injury to anyone. The common law provides a remedy in damages for noncompliance with the statutory rule. The scope, purview and structure of sections 348 and 349 clearly show the intention of the legislature to provide a civil remedy for breach of statutory duties."
9. Impugned order is well reasoned, speaking order and taking care of all the contentions of the parties to the lis. Respondent Corporation under statutory obligation was performing its duty through officials not only to prevent danger from building in a ruinous condition but as an act of awareness to social responsibility as legislature had made it accountable as it owed a duty of care for want of which it could have suffered damages due to negligence. In the case of Daulat Ram (supra) also had been held that the question as to whether the disputed building needed demolition was to be judged by the Corporation and civil courts had no jurisdiction to sit in judgment on the act done or purported to be done by Corporation in exercise of its statutory power. Opinion formed by Respondent Corporation that building in question was in dangerous condition and should be demolished was formed about whole of the MCA12/2015 Sunder Dass Sachdeva Vs. Lalit Kumar Sharma & Ors. Page 11 of 15 building. In the case of Daulat Ram (supra) it was also held that even if it is assumed for the sake of arguments that few portions in the ground floor were not in a ruinous condition, it cannot be the meaning of Section 348 of DMC Act that some portions of the premises may be allowed to stand while others should be demolished and the opinion has to be about the whole of the building. In the case of Nand Kishore Vs. MCD, (1969) DLT 214, it was held by a Division Bench of High Court of Delhi that the Corporation having first decided to demolish whole of the building and had given effect to the decision for 5/6th of it, it could not later change its mind and order repairs only to the remaining 1/6th. Also the fact that the building has not fallen down till now does not mean that the opinion formed by the Commissioner was not based on existence of grounds or circumstances. Correctness of the opinion is not to be canvassed before the Civil Court.
10. Opinion was formed by Respondent Corporation for demolition of the building on the premise of survey report dated 08.10.2013 containing the observations with respect to the dilapidated condition of the property as elicited herein before in detail supported MCA12/2015 Sunder Dass Sachdeva Vs. Lalit Kumar Sharma & Ors. Page 12 of 15 with the photographs of the property in question depicting such dilapidated condition.
11. Appellant/plaintiff has not placed on record any report of MCD approved Structural Engineer per contra to the inspection report of expert officials of respondent no3 North DMC i.e., Junior Engineer (DB), Assistant Engineer (DB) and Executive Engineer (DB). Reasons for which building was declared to be beyond repairs and structurally unsafe find mention in the said inspection report dated 08.10.2013. Photographs filed by Respondent Corporation were duly considered by the Trial Court in the impugned order and were found corroborating the facts regarding the elicited observations in the inspection report aforesaid. The contention that the inspection report was consequent of malice at the instance of owner/landlord lacks basis, foundation and is per contra to record. The building in question is stated to be more than 100 years old.
12. The prime responsibility of Respondent Corporation of safety of citizens in case of dangerous buildings makes it crystal clear MCA12/2015 Sunder Dass Sachdeva Vs. Lalit Kumar Sharma & Ors. Page 13 of 15 that in case of any order of restraint of Respondent Corporation in demolition of the building in question declared dangerous, not only the life of citizens in or in vicinity of the building in question would be endangered but also it would tantamount to putting the Respondent Corporation at avoidable loss of damages which it may incur for the loss of life and limb of such citizens in event of fall of the dangerous building in full or in part. Trial Court has rightly found out plaintiff having failed to establish not only prime facie case but also balance of convenience also lying in favour of Respondent Corporation and that it would be Respondent Corporation and the citizens in or nearby dangerous building who would incur irreparable loss as compared to the loss of appellant/plaintiff.
13. There is no material on record to infer the notices issued by North DMC u/s 348 and 349 DMC Act to be so issued on account of any extraneous reasons and per contra to the actual condition of the suit property. Grounds for eviction of tenant as provided in Section 14 (1) (j) of Delhi Rent Control Act are not akin but embody conditions/parameters/prerequisites entirely different as compared to the MCA12/2015 Sunder Dass Sachdeva Vs. Lalit Kumar Sharma & Ors. Page 14 of 15 parameters/prerequisites of Sections 348 and 349 of DMC Act.
14. In the backdrop of the elicited provisions of Section 348 and 349 of DMC Act and law laid down in respect of these provisions in the cases of Daulat Ram (supra) and Ramesh Chander (supra), I find the elicited grounds of appeal not holding any merit to set aside the impugned order of the Trial Court or to restrain Respondent Corporation for demolition of suit shop in declared dangerous building. Consequently, appeal is found lacking merits and being not maintainable is accordingly dismissed. No order as to costs.
15. File of this appeal be consigned to record room and the requisitioned file of trial court be sent back against receipt. Copy of this order be also sent to the trial court.
Announced in open Court (GURVINDER PAL SINGH) on 20th Day of August, 2015. Addl. Distt. Judge01 (Central) Tis Hazari Courts, Delhi.
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