JUDGMENT
Sat Pal, J.
(1) Both these appeals are directed against the order dated 21st December, 1990 passed by a learned Single Judge of this Court in Ia Nos.4435, 4436, 4437, 4985 and 6058 of 1990 in Suit No. 1800 of 199H. By this order the learned Single Judge dismissed the applications of the defendants (appellants herein) seeking rejection of the plaint and allowed the applications of the plaintiff (respondent No.1 herein) and granted interim mandatory injunction requiring the appellant to issue occupancy certificate and also no objection certificate to respondent No.1 in respect of two blocks subject to their depositing Rs.5,00,000.00 with the appellant and further directed the appellant Delhi Electric Supply Under (hereinafter referred as ‘DESU’) to grant the electricity connection to the said blocks on furnishing of occupancy certificate to DESU. The learned Single Judge also granted the. injunction restraining the appellant from enforcing the demand of penalty amount raised in their letter dated 29th March, 1990 till the disposal of the suit.
(2) The facts of the case have been given in details in the impugned judgment of the learned Single Judge and we do not deem it necessary to repeat all those facts. However, we may narrate a few facts which are necessary and relevant for deciding these appeals.
(3) Respondent No.1 in a public auction held on 17th March, 1976 gave a bid of Rs.1 crore for getting the perpetual leasehold rights for a commercial plot in Nehru Place District Centre, new Delhi. On 22nd March, 1978 the lay out plans and drawings were submitted by the said respondent to Delhi Urban Art Commission (for short called “DUAC”) which considered the plans in its meetings on 15th April, 1978 and 24th April, 1978 and vide letter dated 17th May, 1978 communicated the approval.
(4) The appellant, Delhi Development Authority (for short called “DDA”) passed a resolution dated 11th August, 1990 to the effect that maximum 17% of the total floor space built up permitted as commercial and incidental to hotel and the remaining to be used for hotel purposes and further that the space permitted for commercial/incidental to hotel use be not an independent block but be merged with the incidental to hotel activities. The decision taken by the aforesaid resolution was communicated to respondent No.1 vide letter dated 17th September, 1980.
(5) Respondent No.1 filed a writ petition and challenged the authority of the appellant Dda to restrict the ordinary commercial user of the building area so long as the said respondent was prepared to construct a hotel having accomodation of at least 400 beds. The said writ petition was allowed by a learned Single Judge of this Court vide judgment dated 4th November, 1981. By this judgment the learned Single Judge quashed the resolution dated 11th August, 1980 mentioned herein above and directed the Dda to approve the plans, if the same were in accordance with the undertaking dated 29th November, 1977 and guidelines dated 8th January, 1978. The said order of the learned Single Judge was challenged by the Dda as well as by respondent No. 1 by way of Letters Patent Appeals and both these Lp As were decided vide judgment dated 1st December, 1979 which is- reported as Delhi Development Authority vs. Nehru Place Hotels Ltd., 2nd (1983) 2 Delhi 187. The appeal filed by the Dda was dismissed and the cross-appeal filed by respondent No. 1 was allowed with the following findings:- “1.that on the plot in question the plaintiff was obliged to construct a hotel building in which there was to be hotel of 400 beds in which building the remaining area could be used for purposes incidental to the hotel and also as ordinary commercial area; 2. the lease deed dated November 30, 1977, could not be varied by the Dda in exercise of its executive power; 3. the rights of respondent No. 1 (plaintiff) under the lease deed could not be encroached upon or in roads made by the Dda as it had no statutory or other authority to do so: 4. resolution No.106 was ultra vires, arbitrary and violative of plaintiff’s right under Article 14 of the Constitution and was liable to be quashed; 5. the rejection of the plans by the Dda was without any valid basis; 6. there was no valid or subsisting order or direction of the Government of India under Section 41 of the Act which prohibits the Dda from passing the building plans of the plaintiff; 7. the Dda has no authority to restrict the ordinary commercial user of the area as long as the plaintiff uses the said area for any or more of the commercial purposes specified in clause 14 of the leasee subject to the undertaking dated November 29, 1977, read with the agreement of July 8, 1980, which provided that the hotel building must have a hotel in which there has to be a hotel of at least 400 beds.”
(6) On the basis of the abovementioned judgment, respondent No. 1 approached the Dda for giving sanction to the plans and the plans were sanctioned by the Dda on 15th December 1983.
(7) Meanwhile, respondent No.1 in order to construct a better hotel which could be up to the international standard submitted the revised plan along with the requisite tees which was forwarded to Duac and the said revised plans were approved by the Duac on 25th September, 1985. It is the case of respondent No. 1 that the Government of India issued orders for stopping construction of multi-storeyed buildings in New Delhi area with effect from October 17, 1985 and it is only on April 28, 1988, that the Dda issued requisite sanction to the revised plans.
(8) In accordance with the revised plans, respondent No. 1 constructed block ‘E’ and ‘F’ by the end of May 1989 and it is alleged by “respondent No.1 that about Rs.20 crores were incurred on the said construction E block consists of 20 storeyed building and block F consists of 8 storeyed building and both are commercial buildings and admittedly have been constructed in accordance with the sanctioned plans. It is also the case of respondent No.1 that a load of 4000 Kva was sanctioned by Desu exclusively for the said commercial blocks and it had constructed separate electric sub stations in that respect and had installed the machinery for air-conditioning incurring cost of about rupees one crore and has incurred about Rs.50,00,000.00 in providing and fixing ‘seven transformers and bad also paid about Rs.4,00,000.00 to Desu for the installation of electric sub stations for providing electricity to the said two blocks.
(9) Respondent No.1 moved a formal application for the grant of occupancy certificate and no objection for permanent electric connection in respect of the said two blocks to the Dda on 23rd January, 1989. It has been further alleged by respondent No.1 in the plaint that having heard nothing from the Dda for about tour months, a detailed representation dated 25th May, 1989 was given to the Chairman of the Dda and in the meanwhile on 1st June, 1989, the Chief Fire Officer granted a requisite certificate certifying that the said two blocks were fit for occupation from the fire safety point of view.
(10) The Dda vide its order dated 20th July, 1989 declined to give the completion certificate on the prescribed form taking the plea that the plot is meant for hotel use for which respondent No.1 had also got the building plans sanctioned completed at all and as such part occupancy for commercial blocks could not be considered. It is the case of respondent No.1 that it made a representation to the Vice-Chairman and Chairman of Dda on 25th July, 1989 and again another representation dated 28th July, 1989 to the Chairman DDA.
(11) It is the case of respondent No.1 that the Lt. Governor by his order dated 2nd February, 1990 directed that the No Objection Certificate for permanent power connection and occupancy certificate turn the building which was ready, should be given to the said respondent against which it bad spent a large amount of money on the completed buildings for the construction of which it had taken a number of loans. It was further directed that the question of DDA’s claim for penalties for the alleged delay in the construction should be delinked from the matter of grant of No Objection Certificate and those questions should be examined separately. Respondent No.1, however, was not handed over these documents and it made representation to the Lt. Governor on 23rd February, 1990.
(12) Since respondent No. 1 was not handed over the No Objection Certificate, it filed a writ petition being C.W.P. No.856/90 against the Dda and Desu turn grant of No Objection Certificate and for sanction of electric connection. It may, however, be made clear that before the said writ petition was filed by respondent No. 1, Dda had issued a notice dated 29th March,1990 claiming Rs.1,05,59,582.00 as the penalty for the delayed construction being made on the plot mentioning therein that the construction should have been completed by 20th October, 1979 within three years of the delivery of possession of the plot and no extension could be granted beyond 20th October, 1990 and for granting such extension, the said computation fee must be paid. The said writ petition was dismissed as withdrawn with liberty to take such other legal steps/remedy that may be available by a Division Bench of this Court vide order dated 23rd May, 1990 which reads as follows:- “THOUGH this case is at the preliminary hearing stage, we bad heard arguments on a number of days and were dictating the order, when Mr. Verma prayed for leave to withdraw this petition with liberty to take such other legal steps/remedies that may be available to him. Leave and liberty granted and the petition is dismissed as withdrawn.”
(13) Thereafter, respondent No. 1 filed Suit No.1800/90 claiming relief of permanent injunction, restraining Dda from taking any proceedings or action or step in pursuant to the notice dated 29th March, 1990 or from recovering any amount as penalty or as computation fee for issuance of mandatory injunction requiring the Dda to issue and hand over to the said respondent the occupancy certificate and No Objection Certificate for permanent electric connection in respect of the blocks ‘E’ and ‘F’ and for sending the copies also to the Desu and to other concerned departments and authorities and a mandatory injunction to Desu to give electric and power connections for the said blocks.
(14) Order 39 Rules 1 read with section 151 of the Code of Civil Procedure for restraining the Dda from taking any steps or preceedings for recovering the amount of Rs.l,05,59,582.00 on the basis of the notice dated 29th March, 1990 till the disposal of the suit.
(15) The Dda filed Ia 4985/90 under Order 7 Rule 11 read with section 151 of the Code of Civil Procedure for rejection of the plaint on the ground that no prior notice bad been served on the Dda as required under section 53B of the Act. The Dda also filed another application being Ia 6058/91) under Order 39 Rules I and 2 read with section 151 of the Code of Civil Procedure for seeking injunction against respondent No. 1 restraining it from giving possession or parting with possession of any portion of the Blocks ‘E’ and ‘F’ till respondent No. 1 is given the occupancy certificate/completion certificate.
(16) The appellant Desu also filed Ia 5864/90 under Order 7 Rule 11 read with section 151 of the Code of Civil Procedure for rejection of the plaint against the said appellant on the ground that the plain does not disclose any cause of action against it and there was misjoinder of cause of action.
(17) All the aforesaid five applications have been disposed of by the learned Single Judge vide order dated 21st November, 1990 which has been challenged by way of these appeals i.e. FAO(OS) 5 of 1991 filed by the Dda and FAO(OS) 28 of 1991 filed by DESU.
(18) MR.ARUN Jaitley, Senior Advocate, appearing on behalf of the appellant Dda urged the following contentions:-
1.That respondent No. 1 has not obtained permission from Duac as required under building bye-laws 6.7.3 and the finding of the learned Single Judge that only one time permission was required, was contrary to the building bye-laws.
2.That the suit filed by respondent No.1 is not maintainable inasmuch as the said respondent has not served the notice under section 53B of the Delhi Development Act and the finding of the learned Single Judge that the withdrawn of ther it petition constitutes a notice to the appellant is erroneous in law.
3.That respondent No.1 is not entitled to grant of part occupancy certificate and the finding of the learned Single Judge that part occupancy certificate can be granted, is contrary to the scheme of all bye-laws.
4.That respondent No.1 is guilty of concealment of material facts and the finding of the learned Single Judge in this context is contrary to the record and affidavit filed by the officers of the Dda before the learned Single Judge.
5.That respondent No.1 has filed the suit claiming relief on the ground that a notice dated 11th April, 1989 was submitted to the Dda but the alleged notice was never submitted to the Dda by the said respondent and the same has been fabricated. The finding of the learned Single Judge on this aspect of the matter is factually incorrect.
6.That respondent No.1 is not entitled to interim mandatory injunction on the facts of the case inasmuch as the interim mandatory injunction can be granted only in order to restore a status quo ante position and not to create a new facts situation.
7.That there is no deemed sanction in favor of the respondent and there is no notice under section 53B setting out any cause of action wherein deemed sanction has been claimed by the respondent.
8.That the claim for penalty for belated construction was justified as respondent No. 1 did not complete the construction within three years from the date of possession being handed over to the said respondent.
9.That respondent No. 1 is not entitled to grant of electricity connection without occupancy certificate in terms of Rule 4(c) of the Delhi Electricity Control Order, 1959. This contention was reiterated by the learned counsel for Desu also.
10.That respondent No. 1 is not entitled to occupy the premises without occupancy certificate. In fact occupation without occupancy certificate is a criminal offence punishable under section 29 of the Delhi Development Act.
11.That the internal departmental nothings between Dda, Lt.Governor and various other government departments do not grant any right to respondent No.1 which has not been communicated to the said respondent.
(19) We now proceed to examine the various contentions urged by the learned counsel for the appellant. In support of first contention the learned counsel referred to the building bye-laws No.6.7.3 and 7.6.2 which read as under:- “6.7.3:-In case where the building scheme required the clearance of Delhi Urban Arts Commission (hereinafter referred to as DUAC), then the Authority shall issue the building permit only after getting the clearance from DUAC. xxxxx xxxxx xxxxx xxxxx xxxxx 7.6.2: In cases, where the building scheme requires the clearance of Duac, then the Authority shall issue the occupancy certificate only after getting the clearance from DUAC.”
(20) Relying on the aforesaid building bye-laws the learned counsel submitted that permission of Duac is required at two different stages. The first stage is at the time of sanction of the building plans and the second stage is at the time of occupancy certificate. He further submitted that since admittedly no clearance of Duac under bye-.law 7.6.2 (i.e. at the 2nd stage) has been given by Duac, respondent No.1 cannot be granted occupancy certifiate. Mr. R.K. Anand, learned Senior Counsel appearing on behalf of Duac reiterated the submissions made on behalf of Dda on this aspect of the matter.
(21) It may be relevant to point out here that the functions of Duac are governed by Delhi Urban Art Commission Act, 1973. In this connection the relevant portion from section Ii of the said Act is reproduced hereinbelow:- “11.4Functions of the Commissions- (1) It shall be the general duty of the Commission to advise the Central Government in the matter of preserving, developing and maintaining the aesthetic quality of urban and environmental design within Delhi and to provide advice and guidance to any local body in respect of any project of building operations or engineering operations or any development proposal which affects or is likely to affect the sky-line or the quality of surrounding or any public amenity provided therein. (2) Subject to the provisions of sub-section (1), it shall be the duty of .the Commission to scrutinise, approve, reject or modify proposals in respect of the following matters, namely – (c) plans, architectural expressions and visual appearance of new buildings in the centre, areas parks and gardens specified in clauses (a) and (b) including selections of models for statues and fountains therein; (3) Without prejudice to the provisions contained in sub-section (1) and sub-section (2), the Commission may suo motu promote and secure the development, re-development or beautification of any areas in Delhi in respect of which no proposals in that behalf have been received from any local body.”
(22) A mere reading of section 11 clearly shows that the function of the commission is to scrutinise, approve or reject or modify proposals in respect of the plans etc. Even section 12 of the said Act shows that every local body before according approval in respect of any building operations, engineering operations or development proposals referred to in sub-section (1) of section 11 is required to refer the same to the Commission for scrutiny and the decision of the Commission is binding on such local bodies. From this, it is clear that the approval of Duac is required at the time of proposal in respect of the plans of a new building is received and the scrutiny by the Commission is to be done only at one stage and not at two stages. Bye-laws 6.7.3 and 7.6.2 cannot be read in isolation, they have to be read along with the provisions of Duac Act. In fact in terms of bye-law 7.6.2 the local body is required to ensure that in case of deeming provisions contained in bye-law 6.7.4, the clearance of Duac has not been taken, such clearance will have to be obtained form Duac before the occupancy certificate is issued. Here it may also be relevant to refer to sub- section (3) of Section 11 of Duac Act under which the Commission may suo motu promote and secure the development, re-development or beautification of any area in Delhi in respect of which no proposal in that behalf has been received from any local body. In terms of this sub-section the Commission can take action even if no proposal has been received by the Commission. In this view of the matter, we find no merit in this contention.
(23) In support of the second contention the learned counsel submitted that in terms of Section 53(B) of the D.D.A. Act, 1977 two months’ notice before the institution of the suit is required to be served on the Dda and the said notice must be in writing and must expressly state the cause of action and the nature of relief sought. He further submitted that neither such a notice was served on Dda nor respondent No. 1 has claimed any exemption under section 53(3) from service of the said notice.
(24) Mr. L.R. Gupta, learned Senior Advocate, appearing on behalf of respondent No. I, however, submitted that the object of serving of such a notice is to give information to the Dda as to the nature of the claim of the plaintiff which would enable it to avoid litigation. He submitted that a writ seeking same relief was filed by respondent No.1 against the Dda on 12th March, 1990 and notice of the said writ petition was duly served on Dda on 17th March, 1990. The Dda filed their counter-affidavit to the writ petition on 23rd March, 1990. Thus, the notice of the writ petition was admittedly received by the Dda more than two months prior to the filing of the present suit. In support of his contention learned counsel relied on State of Punjab vs M/s. Geeta Iron & Brass Works Ltd., , Ghanshyam Dass and others vs Dominion of India and others, and N. Parameswara Kurup (died) and others vs State of Tamil Nadu and others, .
(25) In reply the learned counsel for the appellant, submitted that the writ petition was dismissed as withdrawn and a withdrawn writ petition cannot be treated as a valid notice. We, however, find, no merit in the submissions made by the learned counsel for the appellant. As held in the case of Supreme Court M/s. Geeta Iron & Brass Works (supra) a statutory notice is entitled to allow the State to initiate a just settlement or atleast for the court say to deliver the potential outsider why the claim is being resisted. In the present case when the appellant in terms controverter the allegations of respondent No.1 in their counter-affidavit to the writ petition seeking the same relief as in the suit, no purpose would have been served by issuing another notice to the appellant.
(26) In the case of N. Parameswara Kurup (supra) a learned Single Judge of Madras High Court also held that since the notice in respect of the writ petition containing the same facts has been served on the respondent, no fresh notice was required to be given under section 80 CPC. We, therefore, find no merit in this contention also.
(27) In support of the third contention the learned counsel for the appellant submitted that the provision of building bye-laws 7.5.1 and 7.5.2 do not permit the grant of a part occupancy certificate. In this connection it will be relevant to refer to bye-law 7.5.1 which reads as follows:- “7.5.1.Occupation of building – No person shall occupy or allow any other person to occupy any building or part of a building for any purpose until such building or part has been granted the occupancy certificate.”
(28) A mere reading of this bye-law will show that a occupancy certificate can be issued even for a part of the building. The contention of the learned counsel for the appellant is, therefore, misconceieved. An argument, however, can be raised on behalf of the appellant that in terms of the judgment of the Division Bench in the case of Mis. Nehru Place Hotels (supra) the building of respondent No. 1 must have a hotel of atleast 400 beds. During the pendency of the appeal, respondent No.1 has filed an application bearing Cm No.2735/91 notice of which was duly accepted by the learned counsel for the appellant before the said application was disposed of. In this application it has clearly been stated that respondent No.1 has made substantial construction of the hotel block and construction of the structure was almost nearing completion. A photograph to this effect has also been filed as Annexure-VI to this application. While granting the completion certificate in respect of the remaining blocks the appellant can ensure that the hotel block is of at least 400 beds. In view of these facts we reject this contention.
(29) We now proceed to deal with contention No.4 and 5 together, in support of these contentions the learned counsel for the appellant submitted that the alleged notice of completion dated 11th April, 1989 was never submitted to the Dda by respondent No.1 and the same has been fabricated as is evident from the fact that there is no mention or any cross-reference to the alleged notice in the entire correspondence from 23rd January, 1989 to 19th July, 1989, no receipt of the said alleged notice has been filed by the said respondent, the records of the Dda does not contain any reference of the alleged notice and the number of letter i.e. 3226 on the alleged notice is of the rejection letter. dated 19th July, 1989. Learned counsel for respondent No.1, however, controverter these allegations and submitted that Shri P.C. Jain, an officer of the Dda has referred to this notice in his note dated 1st June, 1989. The learned counsel for the appellant, however, submitted that the reliance on the note of Shri P.C. Jain was misconceived inasmuch as Shri Jain used the term (formal application) turn the letter dated 20th April, 1989. While dealing with this aspect of the matter the learned Single Judge has observed that the question whether in fact such a notice dated 11th April, 1989 bad been given, does not arise for decision in this application as the plaintiff (respondent No.1) is not placing reliance on any such notice for getting any relief. The learned Single Judge has further observed that after reading the note of Shri P.C. Jain, there arises a lingering doubt about the explanation given by the said officer. The contents of his note, prima facie, do support the contention of the plaintiff (respondent No.1) with reference to formal notice of completion is the notice of the said respondent besides the application given for getting the occupancy certificate. We agree with the observations of the learned Single Judge and findings on merit with regard to these contentions. Accordingly, this contention is also rejected.
(30) In support of contention No.6 the learned counsel for the appellant submitted that in the present case respondent’s final relief i.e. grant of occupancy certificate is the same as the interim relief and in case the final relief is granted as interim relief, the dismissal of the suit would create an irretrievable situation. The learned counsel placed reliance on Dorab Cawasji Warden vs Coomi Sorab Warden and others, , The University of Bihar and another vs Rajendra Singh, and Nandan Pictures Ltd. vs An Pictures Ltd. and others, . We. however, find no merit in this content in also. Even in the case of Dorab Cawasaji (supra) relied upon by the learned counsel for the appellant, the Supreme Court held that the grant or refusal of interlocutory mandatory injunction shall ultimately rest in the sound judicial discretion of the court to be exercised in the light of the facts and circumstances of each case. Though as held by the Supreme Court, the relief of interlocutory mandatory injunction is generally granted to preserve or restore the status quo of the last non-contesting status which preceded the pending controversy until the final hearing but such an injunction can be granted if the ends of justice so demand and particularly when it is necessary to prevent irreparable or serious injury. We agree with the observations of the learned Single Judge that denial of grant of injunction in favor of the plaintiff (respondent No. 1) is bound to cause irreparable loss and injury to it as the two blocks constructed at a considerable cost would remain unutilised or unoccupied for a long period till the trial is completed, whereas if they are allowed to be occupied during the pendency of the suit even though the purchasers of the different flats in the said two blocks may come to occupy the said presmises, no loss is likely to occur to the DDA.
(31) As regards contentions No.7 and 11, we do not deem it necessary to deal with these contentions as we have not proceeded to decide this appeal on the assumption that there was any deemed sanction in favor of respondent No. 1 or any internal departmental correspondence between Dda and Lt. Governor and between various other agencies of the government has created any right in favor of the said respondent.
(32) In support of contention no.9, the learned counsel for the appellant has submitted, that the plan of the building of respondent No. 1 was sanctioned in December 1983. He further submitted-that the right to charge penalty arises from the lease deed which stipulates the completion of the construction within three years or within such extension which can be granted with such terms and conditions as the Lesser may prescribe. He, therefore, submitted that the appellant has imposed the penalty in accordance with law after affording a proper opportunity to respondent No. 1. Learned counsel for respondent No. 1, however, submitted that the said respondent was not liable for any penalty as the delay is attributable to the wrong and illegal stand of the appellant in rejecting the building plans and further from April 1985 to April 1988 there was a ban on construction of high rise buildings and respondent No.1 could not be held responsible for the delay caused because of the said ban. Since the question as to whether respondent No.1 was responsible for the delay and if so for what period, requires evidence to be led, we agree with the findings of the learned Single Judge that respondent No.1 should be required to deposit a sum of Rs.5,00,000.00 towards penalty with the Dda subject to adjustment in accordance with the final order which may be passed by this Court while deciding the case on merits subject to which the said respondent would be entitled to have the occupancy certificate from the DDA. We, threfore, find no merit in this contention also.
(33) In support of contention No. 10, the learned counsel for the appellant submitted that occupation without occupancy certificate is a criminal offence punishable under section 29 of the D.D.A. Act and keeping in view this fact, no relief should be granted to respondent No.1. We, however, find no merit in this contention since we are upholding the order of the learned Single Judge directing the appellant to issue the occupancy certificate in respect of blocks ‘E’ and ‘F’.
(34) As regards contention No.8, we are also of the view that respondent No.1 is not entitled to grant of electricity connection without having occupancy certificate. But we are upholding the order of the learned Single Judge directing the Dda to issue the occupancy certificate, respondent No.1 shall be entitled for grant of electricity connection also.
(35) As a result of the above discussion we find no merit in these appeals and the same are accordingly dismissed. We, however, leave the parties to bear their own costs.