JUDGMENT
M.K. Sharma, J.
(1) This appeal has been preferred by the plaintiffs against the order of the learned Single Judge dismissing the interim application filed by them seeking to restrain the Mcd from acting upon its orders/notices dated 19.8.1994 and demolishing any part of the property of the plaintiffs/ appellants situated at C-191, Sarvodaya Enclave.
(2) The puffs. filed a suit for perpetual injunction seeking to restrain defendants 1 & 2 from acting upon the order/notice dated 19.8.1994 wherein it was ordered that the aforesaid premises would be demolished u/S. 343(1) of Delhi Municipal Corporation Act, 1957 (the Act). The puffs. arc the owners and occupiers of the ground floor including the basement, the first floor and second floor of building No. C-191, Sarvodaya Enclave. The defts. issued a notice u/S. 349 of the Act requiring the puffs. to vacate the portions in their occupation stating that certain portions of the ground floor and second floor have been built in violation of the sanctioned plan and therefore, unauthorisedly erected and liable to be demolished. The Mcd, admittedly did not serve any notice of demolition u/S. 343 of of the Act on any of the puffs.
(3) On an application seeking temporary injunction filed by the puffs. the Single Judge granted interim injunction on 23,9.94. He heard the arguments advanced by the respective parties on the application seeking a interim injunction and by order dated 28 9.1995 was pleased to dismiss the application filed under Order 39 Rules 1 & 2 and vacated the interim injunction dated 23.9.1994 holding that the suit would not be prima facie maintainable in view of S. 343(4) of the Act.
(4) The issue, therefore, that arises for our consideration is whether the puffs. or any of them is entitled to show cause notice u/S. 343 of the Act since they are the owners in possession of the building at the time of notice and the inspection by the officials of MCD. [In para 5, S. 343 is reproduced].
(5) The learned Single Judge on consideration of S 343 of the Act and the rival submissions held that the puffs. being not the persons at whose instance the impugned erection of work had commenced are not entitled to notice to show cause under the proviso to S. 343(1) of the Act. He further held that since the suit in view of S. 343(4) of the Act would not be prima facie maintainable for the reasons aforesaid the puffs. would not be entitled to the relief of injunction and accordingly the interim application seeking for temporary injunction was dismissed. The aforesaid findings of the learned Single Judge were assailed before us by Mr U.S. Phoolka, who appeared on behalf of the appellants According to him, there could be no absolute bar in entertaining a suit by the civil court questioning the validity of an order passed u/S. 343 of the Act. He submitted that although the Defts. 1 & 2 recognised the plaintiffs as owners of the property in question yet no notice was served on them asking them to show cause and accordingly there is an apparent jurisdictional error in exercise of the power by the Defts. No. 1 & 2. Learned counsel for the appellant relied upon Shiv Kumar Bhadda vs. Mcd in 50 (1993) Dlt 492 (SO [1993. Raj. Lr 374].
(6) Mr. Jolly, appearing for the respondents heavily relied upon the provisions of S. 343(1) read with the proviso thereunder and also on S. 343(2) & (4) of the Act. In his submission the plan was sanctioned in the the name of Pritam Singh and that the pff. came in possession of the properly in question subsequently. According to him since the impugned structure or work had not been commenced at the instance of the pff. no notice u/S. 343(1) was required to be served upon any of the pff. In support of his submission. Learned counsel relied upon A & J Grindlays Bank vs. Comm, Mcd 1995 (2) Ad (D) 575.
(7) Our attention has been drawn to a copy of the notice issued by the Defts. 1 & 2 u/S. 126 of the Act for amendment in the Assessment List of 1993-94 in respect of the property in question. The said notices were dated 25.3.94 and were issued in the name of the puffs. A close look of the said notice would prove and establish that the Defts. recognised the puffs. as the owners of the property in question. Under the aforesaid notices puffs. were directed to pay the taxes w.e.f 1.4 93, in view of re-construction of the building which has called for the amendment in the Assessment List. It is stated that the appellant No. 1 & 2 occupied the building in the month of September, 1993 and the appellant No. 3 occupied the building in February, 1994. Records placed before us discloses that show cause notice u/S. 343 of the Act addressed to Shri Pritam Singh intimating that construction is continuing on the premises and Shri Pritam Singh was directed therein by the respondents to stop the construction. Surprisingly however, notices u/S. 349 of the Act were issued in the name of the pff. It is provided for under the provisions of Section 343 of the Act that if any work is being commenced or carried on or has been completed without or contrary to the building plans or in contravention of any of the conditions subject to which such sanction has been accorded or Bye-Laws made thereunder, the Commissioner may, make an order that such erection work shall be demolished by the person at whose instance the erection or work has been commenced or has been car ried on or has been completed. The proviso appended thereto lays down that no such order of demolition would be made unless the person has been given by means of a notice served in such manner as the Commissioner may think fit a reasonable opportunity of showing cause why such order shall not be made. S. 343(2) further provides that any person aggrieved by an order of the Commissioner made u/S. 343(1) may prefer an appeal against the order to the Appellate Tribunal within the specified period. S. 343(4) of the Act provides that no court would entertain any suit, application or order or proceeding for injunction or other relief against the Commissioner restraining him from taking any action or making any order in pursuance to the provisions of the said section. The aforesaid provisions of S, 343 came to be considered by the Supreme Court in Shiv Kumar Chadha vs. Mcd (supra). The Supreme Court on consideration of the provisions of Section 342, 344 and 347 of the Act and after appreciation of relevant preceding decisions came to the conclusion that inspite of the bar prescribed u/S. 343 (4) & (5) S. 347E of the Dmc Act over the powers of the Court under special circumstances the court can examine whether the dispute falls within the ambit of the Act. It is further held that once the court is satisfied that either the provisions of the Act are not applicable to the building in question or the basic procedural requirements which are vital in nature, have not been followed, it shall have jurisdiction to enquire and investigate while protecting the common law rights of the citizens. The court has categorically laid down that in some special cases where jurisdictional error on the part of the Corporation is established a suit shall be maintainable. The court has further held thus: (1)… (2) The Court should entertain a suit questioning the validity of an order passed under Section 343 of the Act, only if the Court is or prima facie opinion that the order is nullity in the eyes of law because of any “jurisdictional , error” in exercise of the power by the Commissioner or that the order is outside the Act.” In view of the settled position of law as held by the Supreme Court in the aforesaid case we arc to examine as to whether in the facts of the present case there is any jurisdictional error committed by the Deft. No. 1 in passing the order u/S. 343 of the Act.
(8) The learned counsel for the respondents submitted that since the initial construction of property in question had not been commenced at the instance of the pff. notice u/S. 343(1) was not required to be served upon any of the puffs. and therefore it cannot be said that there is any jurisdictional error in not issuing and serving such a notice on the puffs. The impugned notice u/S. 343 was issued in the name of one Shri Pritam Singh though the notice u/S. 349 of the Act was issued in the names of the puffs. Both the aforesaid notices issued were admittedly issued after 25.3.1994 when a notice was issued to the pff. u/S. 126 of the Act for amendment in Assessment List of 1993- 94 recognising the puffs. as owners of the , property in question. Since the puffs have been recognised as the owners of the property in question on 25.3,1994 by the Defts. No. 1& 2 themselves the notice issued u/S. 343 of the Act subsequent thereafter in the name of Shri Pritam Sinah was absolutely without jurisdiction as prior to that date puffs. came to be recognised as the owners of the property. It is, therefore, well established that on the date when the notice was issued by the Mcd u/S. 343(1) of the Act alleging continuance or construction work in contravention of the building plan, it is the pfft. who were entitled to such a notice u/S. 343(1) of the Act as it would be assumed that it is at their instance that such construction works were being carried out in contravention of the building plans. The Defts. No. 1 & 2 having failed and/or neglected to issue such a notice u/S. 343(1) of the Act which is mandatory in nature to the puffs. who. as we have held earlier, were entitled to such a notice, there is an apparent jurisdictional error creeping into the present proceedings. The Defts. No. 1 & 2 were neither empowered nor had any jurisdiction to issue any notice u/S. 349 of the Act or to issue a notice u/S. 343(1) without issuing and serving a notice on the appellants who were recognised as owners of the said property and at whose instance such construction works were being carried out in contravention and violation of the building plans and were, therefore, entitled to such a notice.
(9) It is also appropriate to refer to at this stage the observations of the Supreme Court in Babu Ram Prakash Chandra vs. Antarim Zila Parishad Air 1969 Sc 546 that the bar of alternative remedy would not apply when an Impugned order is passed in apparent violation of the principles of natural justice.
(10) In our considered opinion on the failure of the respondents/defendants 1 & 2 to issue and serve a notice on the puffs. appellants as required under the proviso to Section 343(1) of the Act there is apparent violation of the principles of natural justice as has been laid down in the aforesaid decision of the Supreme Court and also in view of the decision in the case of Shiv Kumar Chadha (Supra) the bar pleaded by the respondents/defendants 1 & 2 to the maintainability of the suit cannot be upheld. Interim injunction allowed.