JUDGMENT
Manmohan Sarin, J.
(1) The plaintiff has filed the above suit inter alia for permanent and mandatory injunction seeking to restrain the defendant No. 1 Mcd from interfering in the peaceful enjoyment of property No.8A/63 Wea Karol Bagh, New Delhi. The Commissioner of police, has been imp leaded as defendant No.2 as its staff provided protection to defendant No. 1 for demolition.
(2) The plaintiff’s grievance emanates from action taken by the officials of the defendant No.1, to. demolish the unauthorized construction in property in suit on 22-3-1995. The plaintiff claims that demolition was carried out in his absence after breaking open the doors. The plaintiff has produced on record the photographs showing part demolition. The plaintiff’s allegation is that the demolition was carried out without any notice to the plaintiff and in the evening after sunset. The plaintiff also lodged a FIR. The plaintiff claims that this is at the behest of vested interests, who wanted the plaintiff to sell the property.
(3) The plaintiff is purchaser of l/4th undivided share in the property vide a registered sale deed dated 29-7-1993. The Assessor and Collector of Mcd has also accepted mutation of the property in the name of the plaintiff and other co-owners vide communication No.Tax/KBZ/94/2774 dated 7-9-1994 for property tax purposes. It is Plaintiff’s case that he has not carried out any new construction but only replastered the walls arid carried out repairs and changed few doors. The property is said to be in occupation of his family and whatever construction had been carried out was carried out forty years ago.
(4) The suit was accompanied with an application i.e. under Order Xxxix rules 1 and 2 Civil Procedure Code (IA 2767/95) seeking an ex parte ad interim injunction restraining the defendants from carrying out any demolition or interfering with the peaceful enjoyment of the property in question. This Court on 27-3-1995 had granted an ex parte injunction directing maintenance of status quo. The interim order had continued since then.
(5) One of the preliminary objections raised by the defendant in written statement is that the suit as instituted is not maintainable being barred under Section 343(4) of the Dmc Act. The suit is also claimed to be barred under Section 347-E of the Mcd Act. The remedy of appeal is before the Mcd Appellate Tribunal. It is further claimed that there is unauthorized construction to the following extent. A)Unauthorized construction of four rooms/Kitchen and Toilets and a Lobby at ground floor. b) Coverage of six rooms and attached Toilets and Lobby/passage at first floor. c) Seven rooms attached Toilets and Lobby/passage at second floor. d) Staircase at first floor.
It is stated that the said unauthorized construction had been booked vide notice bearing No.B/UC/KBZ/95/67 dated 1st March, 1995. It is claimed that show cause notice and demolition notices were issued and served upon the owner/plaintiff but no reply was received. Consequently action for demolition was taken on 22-3- 1995. Further action for demolition could not be carried on 27-3-1995 as a consequence of the stay order granted by this Court. It is claimed by defendant No.1 that the show cause notice was pasted at site, in the presence of witnesses as the plaintiff was not found. Inspection had been carried out prior to the issuance of notice. The demolition orders were issued on 16th March, 1995 and action was taken on 22-3-1995 as stated earlier.
(6) The plaintiff has subsequently during the proceedings in the suit filed on record with an affidavit, a copy of the plan of the property sanctioned by the Delhi Improvement Trust vide letter of 17-3-1952. The plaintiff had moved another application I.A.8864/94 under Order 39 Rule 7 Civil Procedure Code for repairs and preservation of the property. The plaintiff in the application had admitted rather averred that a notice/order under Section 345-A Dmc Act was issued and received on 23-3-1995 by post and he claims to have filed objections thereto-
(7) The plaintiff after arguments had been heard on the injunction application i.e. order 39 Rules 1 and 2 Civil Procedure Code and case had been fisted for directions to enable certain clarification, filed 1.A.3714/96 on 22-4-1996 for amendment of the plaint. Plaintiff sought to give better particulars and also to place reliance on the sanctioned plan of 1952. The plaintiff also seeks to claim damages and compensation for loss due to part demolition a sum of Rs.5,01,000.00 . The amendment application is yet to be decided and adjudicated upon. However, for the purposes of deciding the injunction application, I am considering the pleas raised therein.
(8) Let us consider whether the plaintiff has a prima facie case at all for grant of injunction. The plaintiff claims to be owner of 1/4th divided share in the property in suit by virtue of conveyance in his favour dated 29-7-1993. Premises are said to be over 50 years -old. Sanctioned plan is of 1952. The plaintiff claims that he did not carry out any construction and the building was handed over by the transferor. In the proposed amendments, it is sought to be averred that suit premises as purchase vide sale deed comprised ground floor, first floor and second floor. Again the words “basically erected as per the sanctioned plain of 1952” are sought to be added. The plaintiff also seeks to add a para 2A to the effect that fresh tax assessment was made for ground floor and second floor. The crux of the plaintiff’s case is that the premises purchased by him and other co-owners comprised Was ground floor, first floor and second floor and it was an old construction.
(9) The plaintiff’s case is belied by the documents on record. From the copy of the sanctioned plan produced, it is apparent that the same was for three rooms on ground floor, three rooms on first floor and a barsati and terrace and terrace on second floor. The extent of unauthorized construction found by defendants is A.four rooms, kitchen toilet and lobby on ground floor. B. Six rooms attached toilets lobby passage on first floor. C. Seven room attached toilet lobby passage at second floor. D. Stair case at first floor.
The gravity and extent of unauthorized constructions is apparent. It is far in excess of sanctioned plan and is non-compoundable.
(10) The case of the defendant is that unauthorized construction was being carried out which was booked after notice. It would be pertinent to examine if the plaintiff’s plea that they were the purchasers of ground floor, first floor and second floor of premises in suit has any credence. The plaintiff as noticed already, did not initially give any particulars of the extent of construction or accommodation in the plaint as filed. In the amendment application, plaintiff proposes to add that premises comprised the ground floor first floor and second floor. The sale deed does not recite the purchase of ground floor, first floor and second floor. It does not give the extent of the building or accommodation. It is completely silent. It simply mentions 1/4th undivided share in built up property Mcd numbers 11532 and lease hold plot No.SA/63, Wea Karol Bagh, New Delhi for a sum of Rs.l,75,000.00 . No particulars of the accommodation in possession of the plaintiff or other owners is sought to be given in plaint or even in the amendment application. The sale deed does not support the plaintiff’s case. There is no averment in the plaint that unauthorized construction was of prior to 1957 i.e. coming into being of the Dmc Act, so as to claim any protection, there being no time limit for issuance of notice of demolition under the Dmc Act. The plaintiff has not come to the Court with complete disclosure of facts and particulars while seeking discretionary relief of injunction from the Court. Reference is invited to the observations made in the judgment Anz Grindlays Bank Vs. Mcd – 1995 Ii A.D. Delhi 573. There is nothing on record to even prima face support the plaintiffs case. The plaintiff at best would be a purchaser of unauthorized construction.
(11) Let us next consider the plaintiff’s contention that demolition action was illegal being without service of notice. The defendant’s case is that show cause notice and demolition orders were issued in the name of co-owner K.P Swamy, who not being found at site, the notices were pasted at site in the presence of independent witnesses. No reply to show cause notice was received. No appeal against demolition order was filed and hence action for demolition was taken. The action could not be completed on 22-3-1995 and the plaintiff thereafter obtained ex parte injunction. The plaintiff relies on Umrao Singh Vs. Mcd – 1966 Dlt 471 to claim that demolition being a serious matter notice for demolition is required to be personally served.
(12) Learned counsel for the defendant firstly contended that the plaintiff’s own case was that it had only purchased the property and no unauthorized construction was carried out by him. The plaintiff was, therefore, not entitled to notice under Section 343 of DMC. However, I find that the property having been mutated in favour of the plaintiff and other owners though for property tax purposes, notice had been correctly issued to one of the owners K.P.Swami. Learned counsel for defendant next relied on a Division Bench decision of this Court in M/s. Sahara Deposit and Investments (1) Ltd – 1996 (1) Ad Delhi 416, wherein it has been held that service by affixation does not require the presence of witnesses under the High Court Rules as also Code of Civil Procedure. The Court observed that it. was a matter of descretion and opinion being formed by the Court and a service even in the absence of witnesses can be deemed to be good and sufficient. In the instant case admittedly, on the plaintiff’s own showing he was away from home and during the day attending to his ailing mother in the hospital. It is common knowledge that any independent respectable resident of locality would have the tendency to avoid being involved in Court proceedings. The witnesses to the present affixation are the “Beldars” i.e workers of the plaintiff who would naturally be present where unauthorized construction as per defendant and repairs as per plaintiff was being carried at site. Moreover as observed by Division Bench, the presence of witnesses during the affixation is not necessary. It may also be recalled that plaintiff admits receiving by post order Under Section 345A of Dmc Act.
(13) However, it is not necessary to dwell further on this point for a simple reason that during the course of arguments, based on the observations of the Apex Court in Shiv Kumar Chadha Vs. Mcd reported at . _lt was put to the plaintiff that he should pursue his remedy by way of appeal, before the Appellate Tribunal under the Act, being an aggrieved person, having a right of appeal. Not only this, learned counsel for the Mcd very fairly without prejudice to defendant’s contentions of plaintiff having being duly served, offered that written statement of Mcd could be treated as a notice under Section 343 of Dmc Act. The plaintiff unreasonably spurned the offer and declined to avail of yet another opportunity of showing cause against demolition. He instea.d pressed for order on the application under Order 39 Rules 1 and 2 CPC.
(14) As discussed in the proceedings paras, the plaint even when considered with the proposed amendments is lacking in material particulars. There is admittedly extensive unauthorized construction beyond the sanctioned plan, which is non compoundable. Plaintiff has failed to make out a prima face case for grant of injunction. He declined yet another opportunity being afforded of showing cause against demolition. There does not appear to be any jurisdictional error and it cannot be said that demolition order was a nullity. The plaintiffs conduct has been one of non disclosure, while seeking discretionary relief of injunction.
(15) In view of the foregoing discussion, I.As. 2767/95 and 8864/95 are dismissed.