Delhi District Court
Sh. Davindra Mahey vs Commissioner on 24 March, 2021
IN THE COURT OF SH. R. L. MEENA, ADJ02 & WAQF TRIBUNAL
(NEW DELHI DISTT.) PATIALA HOUSE COURTS, NEW DELHI.
MCA DJ No.04/2021
CNR No.DLND010012132021
Sh. Davindra Mahey
Flat No.2206, Pocket2,
SectorC, Vasant Kunj,
New Delhi110070.
..........Appellant
Versus
Commissioner, South Delhi Municipal Corporation
S.P.M. Civil Centre
Delhi.
..........Respondent
Date of institution of Appeal : 11.02.2021
Date of arguments on Appeal : 15.03.2021
Date of Judgment : 24.03.2021
Appeal U/O.43 of Civil Procedure of Codes against impugned order
dated 08.01.2021 passed by Ms. Preeti Parewa, ACJ/CCJ/ARC, New
Delhi District, in Civil Suit No.CS SCJ 33/2021 titled as 'Davindra
Mahey Vs. Commissioner, South Delhi Municipal Corporation'.
JUDGMENT
1. The appellant is the plaintiff in the Civil Suit bearing CS SCJ No.33/21 titled as 'Davindra Mahey Vs. Commissioner, South Delhi Municipal Corporation' pending before the Trial Court and is aggrieved by the order dated 08.01.2021 (hereinafter referred to as the 'impugned order') whereby the application of plaintiff U/O.39 R.1 & 2 of the Code of Civil Procedure (in short CPC) seeking ex parte injunction was dismissed.
MCA DJ No.4/21 Page No.1 of 14Davindra Mahey Vs. Commissioner, SDMC
2. For the sake of convenience, parties in the judgment are being referred as per their respective status before Learned Trial Court.
3. Before adverting to the grounds of appeal taken in the matter, it would be appropriate to have a brief scrutiny of the facts as born out from the record. Plaintiff filed suit for declaration, permanent and mandatory injunction against the defendant thereby seeking following reliefs:
i. stay of operation of the order bearing reference no.D/373B/AE(Bldg) IV/ South Zone/2020 dated 15.12.2020 passed by the defendant ii. restraining the defendant from identifying and/ or demolishing any alleged unauthorized construction in suit property bearing Flat No.2206, Pocket2, SectorC, Vasant Kunj, New Delhi (hereinafter referred to as the 'suit property') on the purported basis of alleged "Standard Plan of DDA".
3.1 It is the case of the plaintiff that the said suit property was purchased by his father located at the 2nd Floor of building/block and since, 1993, he is peacefully residing there with his family. It is further stated that in the year 2018, plaintiff carried out certain renovation work in the suit property, externally and internally and got the building audited for structural safety and stability.
3.2 It is further stated that one of the residence of flat no. 2206, first floor namely Sh. Dashrath Singh Tanwar filed a false complaint before SDM alleging unauthorized construction being carried out by the plaintiff in the suit property. Sh. Dashrath Singh Tanwar also filed a civil suit seeking injunction which is pending adjudication in Patiala House Court. 3.3 It is further stated that during the pendency of aforesaid civil suit, defendant herein i.e. the Commissioner, South Delhi Municipal Corporation MCA DJ No.4/21 Page No.2 of 14 Davindra Mahey Vs. Commissioner, SDMC (hereinafter referred as "SDMC") issued show cause notice dated 14.01.2019, 17.01.2020 upon the plaintiff alleging deviations and excess coverage from the "Standard Plan of DDA". Plaintiff made several requests to the defendant for providing copy of the said "Standard Plan of DDA" but no action was taken upon the said request of plaintiff. The said Standard Plan of DDA was never supplied to the plaintiff. 3.4 It is further stated that defendant again issued another show cause notice under Section 343/344 of the Delhi Municipal Corporation Act, 1957 (hereinafter referred as "DMC Act") dated 30.09.2020 upon the plaintiff.
Subsequently, on 15.12.2020, defendant has passed an order for demolition of the said construction without considering the replies so filed by the plaintiff and without providing a copy of "Standard Plan of DDA". 3.5 It is further stated that the said notice issued by the defendant upon the plaintiff is illegal and void abinitio. DMC Act, 1957 and building byelaw prevailing at the time of construction of the suit property by the DDA find no mention of "Standard Plan of DDA" and while taking any punitive action under the DMC Act, the "Standard Plan of DDA" if any, cannot be substituted in place of Plans statutory sanctioned or required to be sanctioned under the chapter XVI of DMC Act.
4. Plaintiff sought ex parte injunction in the application under Order XXXIX Rule 1 & 2 CPC thereby seeking stay of operation of impugned order bearing no.D/373B/AE(Bldg)IV/South Zone/2020 dated 15.12.2020 and restraining the defendant from carrying out demolition of the alleged unauthorized suit property on the purported basis of alleged "Standard Plan of DDA".
5. Learned Trial Court while declining the prayer of plaintiff seeking ad MCA DJ No.4/21 Page No.3 of 14 Davindra Mahey Vs. Commissioner, SDMC interim ex parte injunction made the following observations :
(i) That Section 343 & 347 of DMC Act bars the jurisdiction of Civil Court qua the proceedings conducted under Section 343 of the said Act. In the case titled as Shiv Kumar Chadha Vs. Municipal Corporation of Delhi (1993) 3 SSC, it is held by the Hon'ble Supreme Court that only if the court is of the primafacie view that there is any jurisdictional issue in exercise of power by the Commissioner, SDMC.
(ii) That there is nothing on record to show that provision of DMC Act has not been complied in the present case. It is also view of the Learned Trial Court that "merely because, it is alleged that copy of "Standard Plan of DDA" is not provided to the plaintiff, in the opinion of the court, the same does not bar the jurisdiction of the Commissioner to pass an order under DMC Act".
(iii) That court cannot turn nelson eye towards the fact the admittedly that plaintiff was in possession of the property in question since the year 1991 and has not applied or tried to obtain any sanctioned plan, as per which, suit property was constructed.
(iv) That show cause notice was issued by defendant upon plaintiff on 24.12.2019 and impugned order for demolition was passed on 15.12.2020 i.e. after one year, and during this one years, the plaintiff has never applied the same under the RTI Act for reason best known to him.
(v) That Section 334 of DMC Act provides that every person who intends to repair, remove, construct or make any addition or structural alteration, he shall apply for the sanction by giving notice in writing to the Commissioner and only after obtaining sanction, the said work can be carried out.
(vi) That plaintiff has carried out the work of alleged renovation without obtaining any sanction from the concerned authority and thereafter, the impugned notice was served upon him. It is also noted that notice dated 24.12.2019 issued by defendant, it is stated that "plaintiff has raised unauthorized construction in the form of hall partition walls on the terrace of the flat". The plaintiff has placed on record no material to show that he has not made any unauthorized construction.
(vii) That primafacie burden lies upon the plaintiff to show that any construction or renovation work was carried out as per law.
Instead, plaintiff tried to shift the said burden upon the defendant MCA DJ No.4/21 Page No.4 of 14 Davindra Mahey Vs. Commissioner, SDMC by alleging the fact that it was a defendant who did not provide the copy of "Standard Plan of DDA".
6. I have heard arguments advanced by Sh. Anil K. Aggarwal, Learned Counsel for appellant/plaintiff and Mohd. Raghib, Learned Counsel for respondent/ defendant and perused the Trial Court record carefully.
7. The first and foremost argument of counsel for appellant/plaintiff is that learned Trial Court has failed to appreciate the fact that Commissioner, SDMC has no jurisdiction to regulate the construction of building on behalf of Central/State Government by encroaching the constitutional functions, duties, responsibilities of the Elected Municipality. Counsel for appellant has also drawn the attention of the court on the Twelfth schedule of the constitution and article 243 W inserted by the 74 th Amendment in the Constitution, which mentions about the power, authority, responsibility of the Municipality. It is claimed by counsel for the appellant that as per the said constitutional amendment, now only elected municipality can issue notice to a person, who is in violation of building byelaws but not by the Commissioner of SDMC.
8. The said arguments of the counsel for the appellant have been vehemently opposed by counsel for the respondent stating that only Commissioner of DMC can issue notice to the person, who is in violation or in contravention of any of provision of the DMC Act or byelaws made thereunder. Elected Member of Municipality does not have power to issue the notice under Section 343 of the said Act.
9. In the light of the submissions of counsels of both the parties, the point for consideration before this court is as under:
(i) whether elected Municipality has jurisdiction to regulate MCA DJ No.4/21 Page No.5 of 14 Davindra Mahey Vs. Commissioner, SDMC construction of building in view of the 74th amendment of the Constitution?
(ii) whether Commissioner of SDMC has committed jurisdictional error while issuing impugned order U/Sec.343 of DMC Act?
10. In order to deal the aforesaid points of consideration, it would be appropriate to refer relevant provisions of 74th constitutional amendment and provisions of the DMC Act:
[TWELFTH SCHEDULE] (Article 243W)
1. Urban planning including town planning.
2. Regulation of land use and construction of buildings.
3. Planning for economic and social development.
4. Roads and bridges.
5. Water supply for domestic, industrial and commercial purposes.
6. Public health, sanitation conservancy and solid waste management,
7. Fire services.
8. Urban forestry, protection of the environment and promotion of ecological aspects.
9. Safeguarding the interests of weaker sections of society, including the handicapped and mentally retarded.
10. Slum improvement and upgradation.
11. Urban poverty alleviation.
12. Provision of urban amenities and facilities such as parks, gardens, playgrounds.
13. Promotion of cultural, educational and aesthetic aspects.
14. Burials and burial grounds, cremations, cremation grounds and electric crematoriums,
15. Cattle ponds; prevention of cruelty to animals.
16. Vital statistics including registration of births and deaths.
17. Public amenities including street lighting, parking lots, bus stops and public conveniences.
18. Regulation of slaughterhouses and tanneries.
11. After having gone through the 74th Amendment of the Indian MCA DJ No.4/21 Page No.6 of 14 Davindra Mahey Vs. Commissioner, SDMC Constitution, I find that part IXA was added to the constitution by the constitution (74th Amendment Act 1992). This Amendment has added 18 new articles and a new schedule TWELFTH SCHEDULE relating to urban local bodies in the Constitution like, Panchayati Raj Amendment. The 74th amendment provides for constitutional sanction to the Urban Self Governing Institutions ensuring regular elections and enabling them to play a greater role in the development of urban areas. The said amendment empowers of the State Legislature to confer necessary power and responsibility upon the municipalities in respect of preparation of plan for economic development, levy of taxes and duties by municipality. The said Twelfth Schedule contains 18 subjects on which, Municipality will be empowered by the State legislature by law to exercise its administrative control. The 2 nd subject of the said twelfth schedule is "Regulation of Land use and Construction of Building".
12. Now, coming on the provisions of DMC Act. It would be appropriate to refer the relevant provision of said Act. Chapter III of the DMC Act mentions the functions of the Corporation. Chapter IV of the said Act also describes three municipal authorities as follows:
(i) Standing Committee consists of 6 members elected by the Counselors, one Member each elected by Member of each Ward Committee. The function of the said Standing Committee, is also described in Section 49 of the said Act.
(ii) Ward Committee consists of all the Counselors elected from the Ward and person nominated by the Administrator. The power and function of the Ward Committee has also been mentioned in 15th Schedule of the said Act.
(iii) Commissioner - a suitable person is appointed by the Central MCA DJ No.4/21 Page No.7 of 14 Davindra Mahey Vs. Commissioner, SDMC Government. The power and functions of the Commissioner have been mentioned in Section 59 of the said Act. The relevant part of Section 59 of the said Act is reproduced hereinunder:
59. Functions of the Commissioner - Save as otherwise provided in this Act, the entire executive power for the purpose of carrying out the provisions of this Act and of any other Act for the time being in force which confers, any power or imposes any duty on the Corporation, shall vest in the Commissioner who shall also
(a) exercise all the powers and perform all the duties specifically conferred or imposed upon him by this Act or by any other law for the time being in force.
13. Chapter XVI of the said Act deal with building regulations and also powers of the Commissioner. Section 330A of the said Act is reproduced hereinunder:
[330A. General superintendence, etc., of the [Government]. Notwithstanding anything contained in any other provision of this Act, the Commissioner shall exercise his powers and discharge his functions under this Chapter, under the general superintendence, direction and control of the Government.
14. Bare perusal of the 74th constitutional amendment, it is apparent that the said constitutional amendment empowers to the State Legislature to confer necessary power and responsibility upon the municipalities. In view of the said constitutional amendment, many amendments were done in the principal Act i.e. Municipal Corporation Act, 1957. Bare perusal of the provisions of DMC Act as discussed above, I find that legislature has drawn a line between function and power of elected Municipality (Councillors) and executive municipal i.e. Commissioner. Section 343 of the said Act clearly empowers the Commissioner to issue notice to a person who is alleged to MCA DJ No.4/21 Page No.8 of 14 Davindra Mahey Vs. Commissioner, SDMC have violated the building byelaws or in the contravention of the provisions of the act. In view of the aforesaid provisions of DMC Act, it is apparent that elected members of municipality has no authority to issue notice or demolition order U/Sec.343 of the said Act. Commissioner, being executive head of the municipality, has inherent competence and authority to issue notice/ order of demolition under Section 343 of the said Act.
15. The second argument of the counsel for the appellant/ plaintiff is that Learned Trial Court has omitted and ignored the law laid down in case titled as M.C. Mehta Vs. Union of India & Ors. (2005) SSC 186. In the said case, Hon'ble Supreme Court has categorically held that the Municipal Corporation of Delhi elected and constituted in terms of part IX A "Municipality" of the Constitution has Constitutional Obligations in respect of all tasks enumerated and the schedule Twelfth of the Constitution of India which includes at Sr. No. 2 "Regulation of Land use and construction of building". It is further submitted that Learned Trial Court has also omitted and ignored the law laid down in case titled as Shiv Kumar Chadha v. Municipal Corporation of Delhi, (1993) 3 SCC. In the said case, it is held by Hon'ble Supreme Court that Civil Court can entertain the suits when there is a jurisdictional error of the authority concern.
16. The said arguments of the counsel for the appellant/ plaintiff has been vehemently opposed by counsel for the respondent stating that the facts and circumstances of the said referred cases are not applicable in the present case. Moreover, there is no jurisdictional error of the Commissioner while passing the impugned order against the plaintiff.
17. After having gone through the submissions advanced by counsels for both the parties and perusal of the record, I find that facts and MCA DJ No.4/21 Page No.9 of 14 Davindra Mahey Vs. Commissioner, SDMC circumstances of the cases referred by plaintiff, are not applicable in the present case. In the referred case i.e. M. C. Mehta (Supra) there was a issue of unauthorized industrial activities in Delhi in residential areas. In the said case, Municipal Authorities have expressed helplessness in taking action on the apprehension of the breakdown of law and order in the said areas. In view of the said helplessness shown by the authority, Hon'ble Supreme Court has reminded to the municipal authorities about their duties by referring constitutional provisions i.e. Part IX A inserted by the 74th amendment Act, 1992 w.e.f. 01.06.1993, its provision i.e. Article 243 W and the provisions of MCD Act i.e. Section 345, 416, 417 & 461.
18. Now coming on the 2nd referred case i.e. Shiv Kumar Chadha (Supra). In the said referred case, Hon'ble Delhi High Court had held that no civil suit will be entertained by any court in Delhi in respect of any action taken or proposed to be taken by the Corporation with regard to the sealing and / or demolition of any building or any part thereof. The appellant has challenged the said order before the Hon'ble Supreme Court and Hon'ble Supreme Court held that if there is jurisdictional error on the part of Commissioner then Civil Suits can be filed.
19. It is to be note here that there is no issue before the Hon'ble Supreme Court in both the referred cases as to whether elected Municipality only can issue the notice U/Sec.343 of DMC Act or not OR whether Commissioner of SDMC has committed jurisdictional error while issuing notice U/Sec.343 of DMC Act? With the aforesaid discussion, I am of the view that Learned Trial Court has not ignored the law laid down in the aforesaid referred cases.
20. The third argument of the counsel for the appellant/ plaintiff is that Learned Trial Court has also ignored and omitted to appreciate the building MCA DJ No.4/21 Page No.10 of 14 Davindra Mahey Vs. Commissioner, SDMC in question consisting of suit property. DDA flat was constructed by DDA without obtaining sanction plan from erstwhile municipal corporation and without adhering and without following the building byelaws framed to serve the public interest, and in doing so omitted to appreciate the necessary implications thereof : (First) The building in question is either not subjected to the jurisdiction of DMC Act and DMC Regulations, Rules and byelaws are inapplicable : (Second) or the DDA constructed the building in violation of DMC Act and Rules and Regulations.
21. The said argument has been vehemently opposed by the counsel for the respondent/defendant stating that the said argument is without any basis. It is admitted fact that suit property is a DDA Flat. Delhi Municipal Corporation, after development of the area has the authority to supervise the property including DDA Flats in order to stop unauthorized construction.
22. After having gone through the submissions advanced by counsels for both the parties and perusal of the record, I find that the main contention of the plaintiff is that suit property is a DDA Flat which was constructed by DDA without obtaining sanction plan from erstwhile Municipal Corporation and without adhering and without following building bylaw. Since, there is no pleading of MCD or DDA on record, therefore, the said argument cannot be dealt by this court. Moreover, plaintiff in order to substantiate the said arguments has not made party to DDA for reason best known to him.
23. The fourth argument of the counsel for the appellant/plaintiff is that Commissioner of SDMC issued purported show cause notice to the appellant/plaintiff alleging deviations and excess coverage from the "Standard Plan of DDA". Commissioner of SDMC did not response to the request of appellant/plaintiff to provide/supply the copy of the alleged MCA DJ No.4/21 Page No.11 of 14 Davindra Mahey Vs. Commissioner, SDMC "Standard Plan of DDA". On 30.09.2020, again respondent issued a show cause notice under Section 343 & 344 of DMC Act ignoring the earliest request of plaintiff for copy of the Standard Plan of DDA. Thus without supplying copy of purported Standard Plan of DDA, whereby denying the right proper hearing to the plaintiff. The said fact was not considered by Learned Trial Court.
24. On the contra, counsel for the respondent/ defendant has vehemently opposed the said arguments stating that appellant has made the unauthorized construction in his DDA flat without obtaining sanction from the municipal authority. Moreover, appellant was given several opportunities by respondent to appear before it, but he failed to do so. It is further submitted that as per Section 334 of DMC Act, every person, who intends to repair, remove, construct or make any addition or structural alteration, he shall apply for the sanction by giving notice in writing to the Commissioner and only after obtaining sanction, the said work can be carried out. In the present case, plaintiff/appellant has neither obtained any sanction for alleged construction from the authority concern nor appeared before the authority concerned despite several opportunities given. Rather plaintiff was merely doing correspondence with the authority concerned seeking Standard Plan of DDA, which is not permissible.
25. After having gone through the submissions advanced by counsels for both the parties and perusal of the record, I find that the main contention of the appellant/ plaintiff is that Commissioner of SDMC did not response to his request to provide / supply the copy of the alleged Standard Plan of DDA, therefore, proper hearing was not given to him. After having gone through the record, I find that show cause notice was issued by the defendant to the MCA DJ No.4/21 Page No.12 of 14 Davindra Mahey Vs. Commissioner, SDMC plaintiff on 24.12.2019 and impugned order for demolition was passed on 15.12.2020 i.e. after one year. Further, I find that several opportunities were given to the plaintiff by Municipal Authorities, to appear before it regarding the unauthorized construction but he failed to appear before the said authority. Further, I am of the view that Learned Trial Court has taken a correct view that merely because not supplying the copy of the Standard Plan of DDA by the defendant to the plaintiff, does not bar the jurisdiction of Commissioner under DMC Act.
26. The fifth argument of the counsel for the appellant/plaintiff is that Commissioner did not give time to the plaintiff to file the appeal while passing the impugned demolition order dated 15.12.2020, which is in violation of Section 343(2).
27. On the contra, counsel for the respondent has vehemently opposed the said arguments stating that Commissioner SDMC directed to the plaintiff to demolish the unauthorized construction vide impugned order dated 15.12.2020 within 06 days of the said order. The time period of 6 days given by the defendant to plaintiff, is sufficient time to challenge the said order before the Appellate Tribunal, therefore, it cannot be said that no time was given to the plaintiff to file the appeal.
28. After having gone through the submissions advanced by counsels for both the parties, I find that 06 days time was given to the plaintiff by defendant to demolish the unauthorized construction vide impugned order dated 15.12.2020, it means plaintiff was having sufficient time to challenge the said order. Accordingly, it cannot be said that no time time was given to the plaintiff to challenge the impugned order before Appellate Tribunal.
29. Learned Trial Court while declining the relief of ad interim injunction, MCA DJ No.4/21 Page No.13 of 14 Davindra Mahey Vs. Commissioner, SDMC also referred provisions under Section 343(4), 347(e) for showing the fact that Appellate Tribunal is the main forum where impugned order can be challenged. Now the present matter is fixed before Learned Trial Court on the maintainability of the suit. It is also settled proposition of law that when a suit is barred by any law, in such a suit ad interim injunction cannot be granted. Reliance is placed upon law laid down in case titled Shree Priya Ballabh Vs. Manoj Kumar, 1988 (2) CCC 1040.
30. It is also settled proposition of law that while granting or refusing an injunction, the courts have to take into consideration all the circumstances of the case. Normally the discretions exercised by the Trial Court will not be interfered with by the court of appeal unless such erroneous exercise of jurisdiction resulted in grave miscarriage of justice. Reliance is placed upon the law laid down in case titled Shadi v. Anrup Singh, ILR 112 All 436.
31. In the light of the aforesaid law laid down, I am of the considered view that Learned Trial Court while declining the exparte injunction against the defendant, has exercised discretionary power in the parameters of law. The order passed by Learned Trial Court is legally correct and same requires no interference. Appeal being devoid of merits, stands dismissed.
32. Nothing contained herein shall tantamount to an expression of opinion on the merits of the case.
33. Trial Court Record be sent back forthwith to the Learned Trial Court along with copy of this judgment. Appeal file be consigned to Record Room after necessary compliance. RAM Digitally signed by RAM LAL LAL MEENA Date: 2021.03.24 MEENA 17:01:48 +0530 Announced in Open Court (R.L. Meena) on 24th March, 2021 ADJ02 & Waqf Tribunal NDD/PHC/New Delhi MCA DJ No.4/21 Page No.14 of 14 Davindra Mahey Vs. Commissioner, SDMC