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Showing contexts for: unauthorised construction in Sh. Prabhu Dayal vs M.C.D. And Anr. on 23 March, 2001Matching Fragments
3. Defendant No.1/MCD appeared and filed its written statement. Apart from other objections, one of the preliminary objections taken is that the suit of the plaintiff was not maintainable on the ground of suppression and concealment of material facts inasmuch as the plaintiff has knowingly and deliberately kept hidden the fact that the unauthorised construction of basement and ground floor has been carried out at the suit premises without any sanction or permission from the defendant. The suit property comes within the jurisdiction of the defendant for the purpose of stoppage and prevention of the unauthorised construction in violation of the Building bye-laws. It is submitted that a Civil writ petition No.2787/94 titled `Palm Vihar Residents Welfare Association Vs. Municipal Corporation' is pending adjudication before this court and the present premises is also involved therein alleging the quantum of the booked unauthorised construction carried out without any senction and an affidavit in this regard has also been filed. The aforesaid unauthorised construction in the shape of unauthorised construction of basement and ground floor has been booked u/s 343/344 of the D.M.C.Act, 1957 vide unauthorised construction File No.46/B/UC/NC/98 dated 3rd July, 1998. A show cause No.387 dated 3rd July, 1998 had been issued and served upon the plaintiff, as per law but no reply to the show cause notice was received within stipulated time. Thereafter, the matter was further processed and the demolition notice No.2255 dated 14th July, 1998 was also issued and served upon the plaintiff, as per law, to demolish the booked unauthorised construction but the plaintiff failed to comply with the instructions as contained therein. Finally, the demolition orders dated 23rd July, 1998, as per policy were also passed. The unauthorised construction carried out at the suit premises is now liable for demolition. In terms of Section 347-E of the D.M.C.Act, the present suit is barred. Had the plaintiff been really aggrieved with the order of demolition passed u/s 343/344 of the DMC Act, 1957 qua the suit premises, the prompt and efficacious remedy available to the plaintiff is/was to approach the appellate tribunal, Municipal Corporation of Delhi which is the proper forum as per the D.M.C.Act.
6. In view of the preliminary objection of defendant No.1 about the maintainability of the suit,both the parties argued this aspect at length and arguments were also advanced on IA No. 11669/98.
7. In support of his contention that in the absence of any show cause notice or demolition notice,suit was maintainable, learned counsel for the plaintiff relied upon the two judgments of this court, the particulars of which are as under:
1. Kapur Chand Vs. Municipal Corporation reported 1972 RLR (N) 205. In this case it was held that a dispute as to whether a shed was only repaired or was a new construction needed trial and the shed should be preserved till decision on merits in a suit for permanent injunction should be granted for maintaining status-quo. That was a case where petitioner had applied to the Municipal Corporation under Section 334 of the Act for permission to replace the roof of his shed to repair two walls. This permission was given to him. He pleaded that he had effected said repairs by the end of 1964. On the other hand, the Municipal corporation issued notice of demolition on 14th July, 1966 under Section 343 (1) of the Act alleging that its staff noticed unauthorised construction being done on three walls on 9th July, 1966. The court held that in the notice of demolition the Corporation did not mention in words the unauthorised construction and it gave a sketch of the same which corresponded exactly with sketch of the order sanctioning repairs and thus petitioner had a prima facie case which needed to go into by evidence of the parties. In this case, the petitioner had earlier filed an appeal which was withdrawn by him and then suit was filed in which it was explained that appeal was withdrawn on a false assurance given by the Corporation that the alleged unauthorised construction would be regularised on his application and would not be demolished. He also alleged that his consent for the withdrawal of the appeal was obtained by mis-representation or concealment of real intention or by fraud. This court while allowing the revision petition, granted injunction by holding that the plea of the petitioner cannot be assumed to be untrue at this stage and the truth of it has to be considered and decided in the light of evidence which the petitioner might adduce in the course of the suit. This case, therefore, has no application to the facts and circumstances of the present case.
The court then observed that in the case in hand according to the plaintiff no demolition order was passed whereas MCD maintained serving a show cause notice and passing of demolition order. On the basis of these facts, it was concluded that the suit for injunction was barred under Section 34-E of the Act as well as under Section 41(H) of the Specific Relief Act. The relevant paras, being paras 8 and 9 deal with this aspect read as under:
"8. Thus according to the plaintiff, no demolition order was passed for demolition of the alleged unauthorised construction in the building. It was pleaded in the written statement that the demolition order dated 31.8.1987 was served on the plaintiffs. Even after filing of the written statement, the plaintiffs did not care to challenge the said order by incorporating suitable amendments in the plaint. That being so, the present suit does not fall with the category of "the suit questioning the validity of an order passed under Section 343 of the Act. It is well known in the city of Delhi that unauthorised constructions are regularly put up: when caught out, a suit or writ is filed raising a plea that no notice was issued or served before passing the demolition order and stay orders are obtained with an intention to while away the time. In the case of Shiv Kumar Chadha(supra), it was observed by their Lordships that "we are conscious of the fact that persons who make unauthorised constructions by contravening and violating the building bye-laws for regulations often run to Courts with pleas mentioned above, specially that no notice was issued or served on them, before the Corporation has ordered demolition of the construction". I, therefore, find and hold that the present suit is barred under Section 347-E of the Act."
9. The learned counsel for the plaintiff strenuously argued that these documents are fabricated by defendant/MCD and defendant had not been able to show as to how these orders were served on the plaintiff. On the other hand, learned counsel for the defendant argued that the service was effected and it could be effected even by affixation as well which was the proper mode of service prescribed under the Act itself and relied upon the judgment in the case of K.Krishnaswmy Vs. M.C.D.reported as 1996 IV AD(Delhi) 198. The original file was also produced for perusal. However any comments by the court on the service/non-service of these notices can prejudice either party and it is appropriate that this issue is decided by the appellate Tribunal itself. I am of the opinion that keeping in view the ratio laid down by the Supreme court in the case of Shiv Kumar Chadha(supra) and this Court in the case of Manohar Lal Chatrath(supra) the proper remedy for the plaintiff is to file the appeal once the show cause notice and demolition orders have surfaced.In such an appeal it would also be open to the plaintiff not only to show/prove that no such notices/demolition orders were served, it will also be open for him to contend that there was no unauthorised construction. The appellate forum being an alternative and efficacious remedy which puts a specific bar on the civil court to entertain suit of this nature, it would not be appropriate to go in these questions and the appropriate course would be to relegate the parties to the forum of Appellate Tribunal. It is possible that the show cause notice or the demolition order projected by the MCD are fabricated document or that these were not served upon the plaintiff. It is also possible that these are genuine documents and were duly served upon the plaintiff who is only feigning non-service thereof. It is appropriate to leave all these matters for determination by the Appellate Authority. As observed by the Supreme Court in the case of Shive Kumar Chanda(Supra) "persons who make unauthorised construction often run to courts with such plea specially that no notice was issued or served on them before the Corporation had ordered demolition of the construction". Therefore, if the suit is to be held to be maintainable merely because plaintiff is alleging non-service, in all cases the plaintiff would pretend so and file the suit scuttling the provision of appeal altogether. Such an attempt should not be allowed in view of their being specific provision barring the jurisdiction of the civil court more particularly when the question of service of non-service of show cause notice and demolition order can be duly examined by the Appellate Tribunal.