Delhi District Court
Rakesh Deep Occupants Association vs Delhi Development Authority on 27 February, 2012
1
IN THE COURT OF MS. BARKHA GUPTA
ADDL. DISTRICT JUDGE03 (WEST), DELHI
Suit No.27/09/99
Unique ID No. 02401C0178392003
1. Rakesh Deep Occupants Association
Through its secretary Sh. Pradeep Kumar
S/o Sh. Jagminder
Flat No.402, Rakesh Deep Building
11, Yusuf Sarai, C.C. New Delhi .......Plaintiff
Versus
1. Delhi Development Authority
Through its Vice Chairman
Vikas Sadan Near INA Market
New Delhi. ........Defendant
No.1
2. Municipal Corporation of Delhi
Through its Commissioner
Town Hall, Delhi ........Defendant
No.2
Other Details:
a) Date of filing the petition : 02.07.1999
b) Date of reserving the order : 14.02.2012
c) Date of Judgment : 27.02.2012
d) Final Order : Suit is Decreed
against defendant
No. 2
S.No.27/09/99 ..... 1/33
2
J U D G E M E N T
1. (a) The Plaintiff namely Rakesh Deep Occupants Association of Rakesh Deep building has filed the present suit through its secretary namely Sh. Pradeep Kumar, who is authorized by the members of the plaintiffs, mentioning therein that the plaintiff had purchased the flats/offices/spaces in the said building for bonafide consideration. Initially, the present suit was filed against the Defendant No.1 DDA and thereafter, the Plaintiff has amended the plaint whereby it has impleaded MCD as Defendant no. 2 praying that both the Defendants be restrained from taking any action under sections 30(1) or 31A of DDA Act, 1957 and under sections 343 and 345A of DMC Act, 1957 respectively.
1 (b). As per the averments made in the plaint, M/s. Aar Pee Apartments Pvt. Ltd. i.e. the Builder had purchased the plot in question i.e. Plot No. 11, Yusuf Sarai, C.C., New Delhi in an open public auction and its perpetual lease hold rights were also transferred in favour of the said Builder for raising construction of commercial building after which the builder had raised the commercial building on the said plot in accordance with the Building Bye Laws and completed it in S.No.27/09/99 ..... 2/33 3 year 1987 in which regard DDA, had also issued the completion certificate which building is known as Rakesh Deep Building, after which it also obtained the Completion Certificate and thereafter, it allotted the offices/spaces in the said building to various persons for consideration. 1(c). The Plaintiff has averred that none of its members had ever carried out any material additions, alterations or constructions in the said building or in their respective flats/offices/spaces in their occupations except certain minor work here and there which was infact, necessary for furnishing or for carrying out trade activities which cannot be termed as structural changes and they are also not in contravention of the Building Bye Laws.
1 (d). It is further averred that none of the residents/occupiers of the plaintiff had ever received or was served any show cause notice(s) regarding any of the alleged unauthorized construction by either of the defendants and in fact, the defendants had being trying to harass them by extending threats to demolish the said building and in fact, MCD has no right to take any demolition action regarding said property or to seal it, without complying with the provisions of sections 343 and 345A of DMC Act, 1957.
S.No.27/09/99 ..... 3/33 4 1(e). The Plaintiff has prayed that initially the cause of action arose against DDA on 02.07.1999 when its officials came and threatened them to demolish/seal the said premises and cause of action also arose against MCD for which purpose it was also impleaded as a party to the present suit. The plaintiff has inter alia prayed that:
(i) A decree of permanent injunction restraining the defendant No. 1, their officials servants, or agents acting on their behalf from talking any action under section 30(1) or 31A of the DDA Act without first giving a show cause notice and without affording any opportunity of being heard to the Plaintiff in respect of building Rakesh Deep at Plot No. 11, commercial Complex, Yusuf Sarai, New Delhi as contemplated under the said Act.
(ii) A decree of permanent injunction restraining the defendant No. 2 their officials, servants or agents acting on their behalf from taking any action under Sec. 343 and 345A of DMC Act without first giving a show cause notice and without affording an opportunity of being heard to the Plaintiff or individual flat owners/allottees in respect of Building Rakesh at Plot No. 11, Commercial Complex Yusuf Sarai, New Delhi as contemplated under the said Act. S.No.27/09/99 ..... 4/33 5
2. (a). The defendant no. 1 i.e. DDA has preferred to file its Written Statement wherein it has inter alia submitted that it had auctioned the plot in question on 02.01.1984 to the Builder namely M/s Aar Pee Apartments Pvt. Ltd. and its perpetual lease deed was also executed in favour of the said Builder for which the plan was sanctioned by it on 30.04.1984 and thereafter, on 07.02.1986, the occupancy certificate was also issued in favour of the Builder. It is further contended that the Builder had constructed shops and offices and made allotments to various persons in violation of terms and conditions of Lease Deed and Occupancy Certificate.
2(b). The DDA has further submitted that in fact, the building activity pertaining to the property in question was transferred to MCD vide Notification No. F.12 (138)/88L B/Plq II 1887939 dated 26.11.1997 and has denied if it has ever harassed or threatened the plaintiff or if at all it had visited the said property on 02.07.1999. It has also denied if it is under an obligation to serve any show cause notice upon the plaintiff.
3. (a). The defendant No. 2 i.e. MCD has also filed the Written Statement contending therein that the suit of the plaintiff is barred by the provisions of sections 477/478 of S.No.27/09/99 ..... 5/33 6 DMC Act, 1957 for want of service of notice upon MCD prior to the institution of the suit.
3 (b). MCD has also averred that the record pertaining the property in question was received from DDA after which, its staff had inspected the property in question on 16.11.2005, from which it came to know that its occupiers had raised unauthorized construction in the form of deviation against sanctioned Building Plan No. F275(2)/84/Buldg. Part I dated 19.09.1985 in the shape of offices/shops from basement to third floor and had also raised unauthorized construction of three small temporary sheds at the fourth floor and thereafter, MCD has proceeded against the said unauthorized construction U/Ss. 343/344 of DMC Act, 1957.
3 (c). It is further contended by MCD that the said unauthorized construction was booked vide file no. 212/B/UC/SZ/05 dated 16.11.2005 in which regard, a show cause notice no. 1425 dated 16.11.2005 was also issued which was duly served upon the owners/occupiers of the plaintiff association after following due process of law, to show cause as to why the booked unauthorized construction be not demolished and has further submitted that the owners/occupiers had not filed any reply and thereafter, another notice was issued regarding demolition of property in S.No.27/09/99 ..... 6/33 7 question within 6 days which was also duly served upon the owners/occupiers of plaintiff association, however they did no comply with the said directions and accordingly, the unauthorized construction raised in the suit property is liable to be demolished as it was against the Sanctioned Building Plan. 3 (d). MCD has further averred that the present suit of the plaintiff is barred U/S 347(E) of DMC Act, 1957 and the plaintiff must have filed an appeal before the Appellate Tribunal MCD U/S 347(B) of the said Act, if at all was aggrieved by the notice and order of demolition. 3 (e). MCD has prayed that since the suit of the plaintiff is not maintainable before Civil Court, hence it must be dismissed.
4. The plaintiff has filed replication wherein it has reiterated, reaffirmed and reenforced its contentions as made in the plaint and has also denied the averments as made in the Written Statements of the defendants. It has also re emphasized that no notice was ever served on it by either of the defendants regarding its intention of demolition.
5. In the present case, my Ld. Predecessor vide order dt.
30.05.2006 had framed the following issues :
1. Whether the suit is barred by Section 53(B) of DDA Act ? OPD1.
S.No.27/09/99 ..... 7/33 8
2) Whether the suit is barred by Section 477/478 of DMC Act ? OPD2.
3) Whether the suit is without cause of action?OPP
4) Whether the suit is suffered from suppression of material facts and plaintiff is entitled for discretionary relief? OPD2.
5) Whether the suit has been improperly valued for the purpose of court fees and jurisdiction?OPD2.
6) Whether the plaintiff is entitled for decree of permanent injunction as prayed in para15(a) of the plaint?
7) Relief.
6. It would be important to mention here that vide order dated 10.03.08, an additional issue 6A was also framed which is under: Issue 6A i.e. Whether the plaintiff is entitled for decree of permanent injunction against MCD/defendant no. 2, as prayed in paragraph 1(aa) ? OPP.
7. (a) In the present case, the plaintiff, in support of its case has examined only one witness namely Sh. B.M. Singhal as PW1 who has tendered his evidence by way of affidavits as PW1/A and PW1/B bearing his signatures at points A and B S.No.27/09/99 ..... 8/33 9 respectively who was cross examined on behalf of both the defendants wherein he has inter alia denied if he is not amongst one of the occupiers in the suit property and has also denied if any notice was ever issued by MCD or if he had ever received it.
7 (b). Ld. Counsel for the defendant No. 2 had confronted to PW1 with the documents such as booking dated 16.11.2005, show cause notice dated 16.11.2005 and demolition notice dated 23.11.05 and suggested to him that they were pasted at the site, however, PW1 has categorically stated that the said notices might have been given to the Builder and he has no idea about it. He has further stated that he has not filed any appeal against the said demolition notice before the Appellate Tribunal MCD and has also denied if the present suit is not maintainable. He has admitted that he has not issued any notice to the MCD prior filing of the present suit.
8. (a) The defendant No. 1 i.e. DDA has examined two witnesses namely Sh. Rajinder Kumar Kohli, (AE (B) C & I, DDA, Delhi) as DW1 and Sh. Atam Prkash (Assistant director Commercial Branch, DDA Vikas Sadan, New Dehli) as DW2 who have tendered their respective evidence by way of affidavits which are Ex. DW1/A and Ex. DW2/A respectively bearing their signatures at points A and B respectively. S.No.27/09/99 ..... 9/33 10 8 (b). During cross examination on behalf of the plaintiff, DW1 has stated that he is working in the said department since 1983 and in 1984, he was working in CPD II DDA. He has also stated that he was posted in the building section about only six months back and also stated that he has never served in the Building Department of DDA ever before. He, during his further cross examination on behalf of plaintiff, has stated that he has never dealt with the case file pertaining to the present case and has not seen the notice U/Ss 31 and 31A of DDA Act, 1957 and stated that it was prepared on the report of AE who had filed the affidavit earlier. He has also admitted that he has not seen the sanction plan or the completion plan and has expressed his inability to state about the working regarding commercial properties and stated that he is not concerned with the Building Department. He has also conceded that after the said building was transferred to MCD, DDA has no right to take any action regarding its demolition or sealing. 8(c). DW2, during his cross examination on behalf of the plaintiff has stated that the facts as mentioned in para 1 of his affidavit are based on the record as available with the department i.e. DDA and he has no personal knowledge S.No.27/09/99 ..... 10/33 11 about it. He has also conceded that the Builder can sell the apartment only for its first sale i.e. after obtaining prior permission from DDA for completion. He has also stated that he has not seen the building in question and DDA has not taken any action about the sale and purchase of suit property.
9. (a). The defendant No. 2 i.e. MCD has initially tendered the affidavit of Mr. Liyakat Hussain in evidence who relied upon the documents Ex. D2W1/1 to Ex. D2W1/3, however, thereafter, the said witness was not produced in the court for the purpose of cross examination by the plaintiff and thereafter, the MCD has examined Sh. R.S. Gupta who is the executive Engineer (Bldg.1, MCD South Zone, Green Park, New Delhi) who has also tendered his affidavit in evidence as Ex. D2 and has also relied upon the documents Ex. D2W1/1 to Ex. D2W1/3.
9(b). During his cross examination on behalf of the plaintiff, he has stated that he has worked as an Executive Engineer in MCD, however he has not inspected the said property in year 2005. He has also stated that the documents Ex. D2W1/1 to Ex. D2W1/3 were not prepared in his presence and he could not tell as to when the said unauthorized S.No.27/09/99 ..... 11/33 12 construction as mentioned in his affidavit was raised. He has also stated that he does not know the names of the occupiers of the said building and has admitted that Ex. D2W1/1 was addressed only to the "owners/occupiers" of Rakesh Deep Building. He has also admitted that as per record, the said notice was not issued in the name of any individual and notice Ex.D2W1/2 was not served in his presence. He has denied if the document Ex. D2W1/3 was never served upon the owners/occupiers of the suit property.
10. I have heard the final arguments as advanced by Advocate Sh. Sanjay Aggarwal, Ld. counsel for the plaintiff and Advocate Ms. Beena Sharma, Ld. Counsel for the defendant No. 1 DDA and Advocate Sh. Dharamvir Gupta, Ld. Counsel for Defendant No. 2 MCD and have also given my thoughtful consideration to rival submissions made by them and have also gone through the material as placed on record. The Issue vise findings in the case are given in the succeeding paragraphs.
11. (a). The Issue Nos. 1 & 2 i.e. Whether the suit is barred by section 53B of DDA Act ?OPD1 and Whether the suit is S.No.27/09/99 ..... 12/33 13 barred by sections 477/478 of DMC Act? OPD2 are being dealt together being related.
11(b). In considered opinion of the court, before proceeding any further, it would be appropriate to discuss the relevant provisions of Law which are as under : As per provisions of Section 53 ( B) of DDA Act, 1957 " Notice to be given of suits: (1). No suit shall be instituted against the authority, or any member thereof, or any of its officers or other employees, or any person acting under the directions of the Authority or any member or any officer or other employee of the Authority in respect of any act done or made thereunder until the expiration of two months after notice in writing has been, in the case of the Authority, left at its office, and in any other case, delivered to, or left at the office or place of abode of, the person to be sued and unless such notice states explicitly the cause of action, the nature of relief sought , the amount of compensation 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 sub section (1) shall, unless it is a suit for recovery of immovable properly or for a declaration of title thereto, be instituted after the expiry of six months from the date on which the cause of action arises.
S.No.27/09/99 ..... 13/33 14 (3). Nothing contained in sub section (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 notice or the postponement of the institution of the suit."
As per provisions of Section 477 of DMC Act, 1957 :
"Protection of action of the corporation, etc. No suit or prosecution shall be entertained in any court against the 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, for anything which is in good faith done or intended to be done,under this Act or any rule, regulation or bye law made thereunder."
As per provisions of Section 478 of DMC Act, 1957 :
" Notice to be given of suits :
(1) No suit shall be instituted against the 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, or purporting to have been done, in pursuance of this Act or any rule, regulation or bye law made thereunder until the expiration of two 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 S.No.27/09/99 ..... 14/33 15 or left at his office or place or residence, and unless such notice states explicitly the cause of action, the nature of the relief sought, the amount of compensation 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 the recovery of immovable property or for a declaration of title thereto, be instituted after the expiry of six months from the date on which the cause of action arises. (3) Nothing in sub section (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."
11 (c). Ld. Counsel for the plaintiff has argued that so far as Issue Nos. 1 and 2 are concerned, the onus to prove them is upon the respective defendants, however, neither the defendants has shown anything on record in support of their case nor have lead any evidence to substantiate their contentions to the extent if at all, the suit of the plaintiff is barred under the said provisions or if at all, any notices U/S 53B of DDA Act, 1957 or U/Ss 477/478 of DMC Act, 1957 were ever served on the plaintiff. He has further averred that the defendants have miserably failed to prove on record, if the notices were ever issued or were ever served on the plaintiff. S.No.27/09/99 ..... 15/33 16
Ld. Counsel for DDA has submitted that DDA does not have any jurisdiction over the property in question any more, as it has already been denotified and it was accordingly transferred to MCD in year 2005. He has also submitted that though earlier it had served a notice on the plaintiff in 1997, but now, it has nothing to do with the present case any more being devoid of having any jurisdiction over it.
Ld. Counsel for MCD has argued that it had properly served notices U/Ss 343 and 343(2) of the DMC Act, 1957 on the plaintiff by way of affixation on the Rakesh Deep Building in the name of "Owners/Occupiers" and hence, since the notice was appropriately served U/S 444 of DMC Act, accordingly the jurisdiction of the Civil Court is barred U/S 347(E) of the Act. He has further argued that the plaintiff should have filed the appeal in the Appellate Tribunal of MCD and not before Civil Court.
11.(d) In the present case, after hearing the plaintiff and the defendants and after going through the relevant provisions of law, it would be appropriate to mention that as per provision of Section 53B DDA Act, 1957 which refers to service of notice, its sub sections 1 & 2 make it amply clear as to in what conditions and circumstances, the notice is required to be issued prior to filing of the suit and its sub section 3 has very S.No.27/09/99 ..... 16/33 17 categorically provided that such notices are not required and further provide that sub sections 1 & 2 would not be applicable in a suit in which the only relief claimed is injunction. In fact, sub section 3 of section 53B of the said Act, comes to the rescue of the plaintiff in the given facts and circumstances of the case and as such, the present suit of plaintiff is not barred under the said provisions.
Further, the requirement of notice as envisaged under sub sections 1 & 2 of section 478 of the DMC Act, 1957 are also done away by its sub section 3. In this regard, support is taken from the case titled as Harkishan Lal Versus Jain Textile Trader, 1994, RLR 88 wherein the Hon'ble High Court of Delhi has laid down that notice is not necessary in a suit for injunction and also held that in case, the relief sought in the suit is of injunction which does not brook any delay in as much as if injunction is not obtained, there was likelihood of more injury being caused to the rights of plaintiff, a prior notice is not liable to be given to the corporation for bringing the suit of injunction.
Now so far as, protection under section 477 of DMC Act, 1957 is concerned, it refers to the acts done by MCD or by its employees or agents in good faith or acts which are intended to be done as such by them and in those cases, no suit S.No.27/09/99 ..... 17/33 18 can be entertained against them by the court, however such protection is available only if the act done is in good faith and not otherwise which clearly show that only the acts which are done diligently, responsibly and reasonably are covered.
In view of aforesaid discussion, it is shown on record that the onus to prove Issue Nos.1 & 2 regarding proper service of notice on the plaintiff was upon the respective defendants, however, nothing is shown by either of them if at all, the present suit is barred U/s 53 B of DDA Act, 1957 or if the suit is barred U/s 477/478 of DMC Act, 1957. Keeping in view totality of facts and circumstances, in view of aforesaid discussion and considering the case law, Issue Nos. 1 & 2 are decided in favour of plaintiff and against the defendants accordingly.
12(a) Issue No. 3: Whether the suit is without cause of action? OPP.
12 (b). Ld. counsel for the plaintiff had argued that in fact, the defendants had never served any notice on the plaintiff or on any of its residents/owners/occupiers in which regard, none of the defendants have been able to show anything on record even remotely to suggest if at all said notices were issued or were ever served and although the defendants have examined their officials, yet they have miserably failed to show service of the S.No.27/09/99 ..... 18/33 19 notice on the plaintiff whereas the plaintiff has successfully proved through PW1, that no notice was served on the plaintiff and nothing is placed on record to the contrary during his cross examination on behalf of the defendants. He has further submitted that accordingly, the plaintiff has a cause of action in his favour.
Ld. counsel for MCD had argued that as notice was properly served on the plaintiff as it was affixed on the building in the names of "owners/occupiers" and hence plaintiff cannot claim any relief before civil court. 12 (c). In the present case, as per record, the Builder namely M/s Aar Pee Apartments Pvt Ltd. had purchased the suit property in an open public auction from DDA in which regard the perpetual lease hold rights was granted in its favour, the plan was sanctioned and after construction, the Builder also obtained the completion certificate and the occupancy certificate as per law and sold the shops/offices to various persons who are members of plaintiff.
The plaintiff has examined Sh. B.M. Singhal as PW1 who has filed his affidavits Ex.PW1/A and Ex.PW1/B reiterating the facts as mentioned in the plaint as correct. During his cross examination on behalf of the defendants, S.No.27/09/99 ..... 19/33 20 nothing is shown on record disbelieve his version so far as case of plaintiff is concerned.
The defendant No.1 i.e. DDA has also examined two witnesses, and from their versions, it is shown on record that DDA is not concerned with the property in question anymore as the said property already denotified and the defendant No.2 i.e. MCD has jurisdiction over it.
The MCD has also examined Sh. R.S. Gupta who has very categorically stated during his cross examination on behalf of the plaintiff that he has never inspected the property in question in 2005 and also stated that the documents Ex.D2W1/1 to Ex.D2W1/3 were never prepared in his presence. He has nowhere stated if at all there was any unauthorized construction on the said property. He has simply stated that Ex.D2W1/1 was addressed only the "owners/ occupiers" of plaintiff and has admitted that it was not issued in the name of any individual and has also admitted that notice Ex.D2W1/2 was never served on anyone in his presence. He could not say if the sanctioned plan of building is available on record.
Further, it is shown that the plaintiff and members of plaintiff are the owners/occupiers of various spaces and offices which they had purchased from the Builder M/s Aar S.No.27/09/99 ..... 20/33 21 Pee Apartments Pvt Ltd. and it was the Builder who had purchased the property in question and also obtained completion certificate from DDA after raising construction and sold offices to various persons and none of the defendants has disputed the completion certificate. The provisions of Section 30 of DDA Act, 1957 and Section 343 of DMC Act, 1957 envisages that a prior show cause notice, whereby the owner must be given a reasonable opportunity to represent himself, must be given prior to order of demolition as has been discussed in case titled as Shiv Kumar Chadhha Vs. MCD & Others 1993 (3) SCC 161, wherein it is laid down that civil courts have jurisdiction to entertain any suit in connection with demolition of a building or part thereof. It is also well settled law that under provision of Section 30 of DDA Act, 1957 and Section 343 of DMC Act, 1957, the notice must be issued not only to the Builder/seller but also on the purchasers/owners in which regard the Division Bench of our Hon'ble High Court, in case titled as Dr. Ms. R.A.Bhujwala Vs. MCD 1996 RLR 320, has held that if a person buys a property under construction and MCD detects that the construction is in violation of plan, then it must give notice to the buyer also U/s 343 of MCD Act. Further, in case titled as Manmohan deceased through LRs Vs. MCD 68 S.No.27/09/99 ..... 21/33 22 (1997) DLT 801, the Hon'ble High Court of Delhi has observed that a show cause notice is a condition precedent before the passing of any demolition order of the alleged unauthorized construction and the same is to be served either on the person who is raising the alleged unauthorized construction or at whose instance the same is being raised. It was further held in that case that there was no evidence from the side of the respondent to prove as to who raised the construction and the Hon'ble Court had declined contentions of advocate for MCD who wanted that the court must conclude from the factum of possession of the tenant over the disputed property that it were they who raised the construction. The Hon'ble Court also observed that as such no such presumption can be drawn and the person who had raised the unauthorized construction must be served with the notice. In the said case, the suit was filed whereby it was prayed that the respondent, its servants, agents be restrained from demolishing the tin shed in the premises of the plaintiff who was the owner. The Hon'ble Court observed that the appellant/plaintiff who is the owner of the disputed property has never been served with S.No.27/09/99 ..... 22/33 23 any show cause notice as required U/ss 343 (1) & 344 (1) of DMC Act. The Hon'ble Court also viewed that the appellant/plaintiff was neither been heard nor has been given an opportunity to lead evidence in support of his case and no demolition order under Section 343 of the Act can be passed as no notice was served upon him who is the owner and held that consequently, the threatened action of demolition is illegal, invalid, ultra vires and without jurisdiction. In fact, the moot question was whether the plaintiff/appellant was entitled to be served with the notice as required U/s 343 of the Act since no unauthorized construction can be demolished without service of said notice, the Hon'ble court held that from the relevant provisions of law, notice must be served on the person who has raised the unauthorized construction or at whose instance, the said unauthorized construction has been raised and further observed that there was no evidence from side of respondent as to who had raised the construction. It further held that as per provisions of sections 343 of the Act, it is the plaintiff/appellant who is to be served with the notice before any demolition can be S.No.27/09/99 ..... 23/33 24 made and in that case it is also laid down that the appellant/plaintiff was not served with the said notice and accordingly, a decree of permanent injunction was passed in favour of plaintiff/appellant and against the respondent with further direction that respondent would however be free to take any action of demolition in accordance with law.
In the present case, considering the totality of facts and circumstances, it is shown on record that PW1 has very emphatically stated that no notice was ever served by the defendants either on the plaintiff or on any of its residents/occupiers/owners. It would be pertinent to mention that even the witness examined by MCD has also stated and admitted that notice was never served on any individual of the plaintiff and stated that, rather it was simply affixed in the name of "owners/occupiers" on the plaintiff building. In fact, MCD has not been able to show anything on record, if at all any notice was properly served on the plaintiff or on any of its residents/occupiers/owners. The witness examined by MCD has also admitted that he is not conversant either with the issuance or service of said notice. Admittedly, no notice was ever served by the MCD on the Builder as well and in keeping in view, the peculiar facts and circumstances of the case, it is S.No.27/09/99 ..... 24/33 25 rather shown on record that neither the builder nor the plaintiff nor any of its members/residents/occupiers/owners was served with any notice by the defendants at all.
In the present case, the plaintiff has claimed relief of permanent injunction against the defendants, their officials, servants or agents acting on their behalf from taking any action under section 30 (1) or 31 A of the Delhi Development Authority Act and U/s 343 & 345 A of DMC Act, 1957 without first giving a show cause notice and without affording any opportunity of being heard to the plaintiff in respect of property in question. This court, in view of the detailed discussion as above and in view of case law is of the considered opinion that the plaintiff does have a cause of action in its favour to pursue its case before civil court Accordingly, this issue i.e. Issue No. 3 is decided in favour of the plaintiff and against the defendants.
13(a) At this stage, the Issue No. 5 i.e. whether the suit has been improperly valued for the purpose of court fees and jurisdiction? OPD2 is being dealt with and the Issue Nos. 4, 6 & 6A would be dealt together later.
13(b). Ld. counsel for the plaintiff has submitted that the onus to prove the said issue is on the defendant No.2 i.e. MCD, however, it has miserably failed to show or to place anything on record regarding improper valuation of the suit or if at all S.No.27/09/99 ..... 25/33 26 the court fees was inappropriately affixed or that the suit was improperly valued for purpose of court fees and jurisdiction and pray that while filing the present case, the suit was properly valued and appropriate court fees was affixed.
Ld. counsel for the defendants have contended that the suit of the plaintiff is improperly valued for the purpose of court fees and jurisdiction.
13(c). In the present case, after hearing the both parties and after going through the material as placed on record, it is shown that the onus to prove the said issue was on the defendant No.2 i.e. MCD, however, it has not shown anything on record nor even whispered as to how the suit of plaintiff suffers from improper valuation for the purpose of court fees and jurisdiction. As per record, the plaintiff has valued the suit for the propose of court fees and jurisdiction at Rs. 5,01,000/ and paid AdVelorum court fees and has valued the suit for the purpose of injunction at Rs. 130/ and affixed court fees of Rs.13/. Accordingly, in view of above, the said issue is decided in favour of plaintiff and against defendant No.2. 14(a). Now I propose to deal with Issue Nos. 4, 6 ,6A being related to each other.
Issue No.4: Whether the suit is suffered from suppression of material facts and plaintiff is entitled for discretionary relief? OPD2.
S.No.27/09/99 ..... 26/33 27 Issue No.6: Whether the plaintiff is entitled for decree of permanent injunction as prayed in para 15(a) of the plaint? Issue No. 6 A: Whether the plaintiff is entitled for decree of permanent injunction against MCD defendant no. 2 as prayed in paragraph 1 (aa) ? OPP. It would be appropriate to mention that the said prayer is made in paragraph 15 (aa) and not in para 1 (aa) which genuinely seems to be typographical error.
14(b). Ld. counsel for the plaintiff has argued the plaintiff has neither suppressed nor concealed any material facts from the court and in fact, it was the defendants who had done so. He has further submitted that during the pendency of the suit the defendant No.1 i.e. DDA had come forward in mentioning that the property in question was denotified and also informed that DDA was not having any jurisdiction over it being denotified which is under the domain of the defendant No.2 i.e. MCD. He has further submitted that MCD has also kept it and the court in dark as it has, time and again has emphasized that notices were properly served on the plaintiff and civil court has no jurisdiction to deal with the matter which is absolutely contrary to the factual position as in fact, no notice was ever served on the plaintiff and the jurisdiction of civil court is not barred, so far as relief claimed is concerned which is basically a prayer for issuance of directions to the S.No.27/09/99 ..... 27/33 28 defendant for issuing proper notice on the plaintiff prior to demolition of the building in question. Ld. counsel for plaintiff has also submitted that onus to prove the said issues is on the defendants, however, they have miserably failed to place anything on record contrary to contentions of the plaintiff, so far as the relief claimed is concerned. He has also submitted that the witnesses examined by the defendants themselves have demolished the case of the defendants as they have very categorically and straight forwardly mentioned before the court that they had never visited the suit property i.e. property in question nor can say if at all any construction was made in violation to the sanctioned plan and completion certificate or if any notice for unauthorized construction was either issued or served upon the plaintiff and further submit that the service of notice was never effected properly either on the plaintiff or on its owners/occupier/residents and service of notice while affixation on the building as, "owners/occupiers" is never an appropriate service and there is no evidence by the defendants as to when or by whom the said notice was served on the plaintiff or its occupiers. He also argued that in fact, the defendants had performed their duties arbitrarily rather than performing it reasonably and diligently. He has prayed that since it is clearly shown on record, that notices were never S.No.27/09/99 ..... 28/33 29 served upon it, hence it is entitled to the relief claimed.
Ld. counsel for the defendants have contended that notice was duly served upon defendants by affixing on the building in question and the plaintiff has concealed and suppressed the said facts from the court and hence, the said issue be decided against the plaintiff as the witnesses examined by them has acknowledged about issuance and service of notices on the plaintiff.
14(c). In the present case, in the preceding paragraphs the contentions regarding improper service of notice on the plaintiff and jurisdiction of civil court to entertain the case have already been discussed at length which Issues are decided in favour of the plaintiff.
Even at the cost of repetition, it is mentioned that as per record, the plaintiff and members of plaintiff are the owner/residents/occupiers and they had purchased the spaces/offices from the Builder namely M/s Aar Pee Apartments Pvt Ltd. and it was the Builder who had also obtained the completion certificate from DDA i.e. Defendant no.1 after raising construction and also obtained occupancy certificate. Section 30 of DDA Act, 1957 and 343 of DMC Act envisages that a prior show cause notice, whereby the owner(s) must be given a reasonable opportunity to represent S.No.27/09/99 ..... 29/33 30 himself, must be given prior to order of demolition as already discussed in case titled as Shiv Kumar Chadhha Vs. MCD & Others 1993 (3) SCC 16 and it is also settled law that civil courts have jurisdiction to entertain to any suit in connection with demolition of a building or part thereof if the notice is not properly served. It is also well settled law that under provision of Section 30 of DDA Act, 1957 and Section 343 of DMC Act the notice must be issued not only to the Builder/seller but also the purchasers/owners. In case titled as Dr. Ms. R.A.Bhujwala Vs. MCD 1996 RLR 320, the Hon'ble court has held that if a person buys a property under construction and MCD detects the construction is in violation of plan then it must give notice to the buyer also U/s 343 of MCD Act. Further, in case titled as Manmohan deceased through LRs Vs. MCD 68 (1997) DLT 801, the Hon'ble High Court of Delhi has observed that a show cause notice is a condition precedent before the passing of any demolition order of the alleged unauthorized construction and the same is to be served either on the person who is raising the alleged unauthorized construction or at whose instance the same is being raised. S.No.27/09/99 ..... 30/33 31
Accordingly, in the present case, in view of the totality of facts and circumstances, precedent, case law and discussion as made above, the Issues Nos.4, 6 and 6A are decided in favour of the plaintiff and against the defendant. 15(a). Relief
(b) In the present case, considering the totality of the facts and circumstances of the case, in view of material placed on record and in view of aforesaid detailed discussion as well as considering the ratio decidendi in cases titled as Manmohan deceased through LRs Vs MCD 68 (1997) DLT 801, Dr. Ms. R. A. Bhujwala Vs MCD 1996 RLR 320, Bahu Ram Prakash Chandra Vs Antarim Zila Parishad AIR 1969 SC 546 (wherein it was observed that bar of alternative remedy would not apply when the impugned order is passed in apparent violation of principles of natural justice), Harkishan Lal Vs Jain Textiles Trader 1994 RLR 88, Shiv Kumar Chaddha Vs MCD & Ors., 1993 (3) SCC 161 (wherein it was held that though the regulations and Bye laws in respect of building are meant to serve the public interests, but at the same time, it cannot be held that in all circumstances, the authorities entrusted with the demolition of unauthorized construction have exclusive power to the absolute exclusion of the power of S.No.27/09/99 ..... 31/33 32 the court are applicable in facts of the circumstances of the present case.
It would be pertinent that the ratio decidendi of the case titled as Prabhu Dayal Vs MCD & Ors., 2001 III AD Delhi 911 would not be applicable in the peculiar facts and circumstances of the present case as in that case, the Hon'ble Court had observed that if the notices were properly served, then in such cases, the appropriate authority would be the appellate tribunal.
However, in the present case, from the earlier detailed discussion it is shown on record that the notices were never properly served either on the plaintiff or on its owners/occupiers and the principles of natural justice were also not followed. Accordingly, in considered opinion of the court, in view of entire discussion, on the basis of material placed on record and in view of case law as is discussed, the plaintiff, is entitled to the relief claimed against the defendant No.2 i.e. MCD as the suit of plaintiff, so far as defendant No.1 i.e. DDA is concerned has already become infructuous as DDA has fairly admitted that the property in question has already been denotified by it and has already been transferred long back to defendant No.2. Accordingly, a decree of permanent injunction restraining the defendant no. 2, its officials, servants S.No.27/09/99 ..... 32/33 33 or agents, acting on its behalf from taking any action under Sec. 343 and 345A of DMC Act, 1957 without firstly giving proper show cause notice and without affording an opportunity of being heard to the Plaintiff or to the individual owners/allottees in respect of Rakesh Deep Building at Plot No. 11, Commercial Complex, Yusuf Sarai, New Delhi is passed in favour of plaintiff and against defendant no.2.
Further, no order is to be passed so far as cost is concerned and both the parties are directed to bear their own costs. Decree sheet be prepared accordingly. File be consigned to record room after compliance of necessary legal formalities as per rules.
Announced in the open court ( Barkha Gupta ) today i.e.27th Day of February, 2012. ADJ - 03 (West)/Delhi S.No.27/09/99 ..... 33/33