JUDGMENT
J.D. Kapoor, J. (Oral)
1. Admittedly defendant No. 3 is a tenant of the
plaintiff firm in respect of the property No.14 and 14/1
plot No. 15, Block 80A Krishna Market Pahar Ganj, New
Delhi. The suit property is situated at 1634-35 Main
Bazar Pahar Ganj, New Delhi of which the plaintiff is
owner. Some time in 1991, the plaintiff firm and its
partners had filed eviction petition against defendant
No. 3 on the ground of bona fide requirement under Section
14(I)(e) read with Section 25(b) of the Delhi Rent
Control Act.
2. As a counter blast, defendant No. 3 i.e. the
tenant made a complaint to the Municipal Corporation of
Delhi against the plaintiff-firm that it has raised huge
unauthorised constructions in the suit property. On
persistent representation of defendant No. 3 the DDA
prosecuted sh. Nand Lal Sharma one of the partners of the
plaintiff under Section 29 of the Delhi Development Act.
However, the said criminal proceeding ended in acquittal
on the ground that the property in question was being put
to commercial use much before the master plan came into
existence.
3. It is averred that on the frivolous
representation of defendant No. 3, the Lt. Governor of Delhi
i.e. defendant No. 2 has passed some order directing
defendant No. 1 MCD to take action against the suit
property. However this fact came to the notice of the
plaintiff when on 11th June, 1993 one Mr. Kardam, Junior
Engineer of pahar Gunj Zone of MCD visited the site for
inspection and told that there were orders from the
Lt.Governor for demolishing the basement.
4. According to the plaintiff the alleged basement
is not the basement as it is the mezzanine floor that
exists between the ground and the first floor. The height
of the mezzanine floor form the original plinth level is 7
feet whereas the upper floor of the mezzanine floor has a
height of 7′-9″. The lower height of the plinth level of
the property according to the plaintiff is the result of
the repair and raising of the level of the road from time
to time during the past 60 years. The plinth level of the
suit property is lower than the road level because of the
filling of malba to stop entry of rain water into the
building, though the height of the first floor and the
ceiling of the ground floor was about 14′-9″.
5. The instant suit has been filed on the premise
that no show cause notice for sealing or demolishing the
basement as contemplated under Sections 343 and 344(1) of
the Delhi Municipal Corporation Act, 1957 has been served
upon the plaintiff though there exists a threat of demolition of the said basement.
6. According to MCD the plaintiff was booked for
unauthorised construction on 25th June, 1993 and
thereafter a fresh show cause notice No. 124005 dated
30-7-1993 for the unauthorised construction of the
basement and stair case was issued and served upon the
plaintiff Shri Nand Lal Sharma, K.L. Sharma and Davinder
Kumar but no reply was received form them. Teh
construction in question, according to M.C.D., is against
the building bye laws and is not compoundable. The
preliminary objection raised by M.C.D., is about the
maintainability of the suit as according to it the same is
barred by the provision of Section 347-E of the Act.
Right form March, 1996 when unauthorised construction was
noticed in the suit property and form time to time when
unauthorised construction was booked demolition was
ordered by the M.C.D.
7. Section 347-E of the Act provides an appeal
before the Appellate Tribunal against the impugned action
of defendant No. 1 and specifically debars the jurisdiction
of the civil court. It reads as under:
“347-E. Bar of jurisdiction of
Courts-(1) After the commencement of Section 7
of the Delhi Municipal Corporation (Amendment)
Act, 1984 no court shall entertain any suit
application or other proceedings in respect of
any order or notice appealable under Section
343 or Section 347B and no such order or
notice shall be called in question otherwise
than by preferring an appeal under those
sections.
(2) Notwithstanding anything contained
in Sub-section (1) every suit, application or
other proceeding pending in any court
immediately before the commencement of Section
7 of the Delhi Municipal Corporation
(Amendment) Act 1984 in respect of any order
or notice appealable under Section 343 or
Section 347B shall continue to be dealt with
and disposed of by that court as if the said
section had not been brought into force.”
8. The instant suit has been filed in view of the
Judgment of the Supreme Court in Shiv Kumar Chadha v. MCD
and Ors. 50 (1993) DLT 492(SC) whereby the remedy by way of
civil suit is available in case the authority has not
served with the notice either under Section 343 or 344 or
345-A of the MCD Act by way of either sealing the premises
or demolishing the same.
9. Counsel for the plaintiff has placed reliance
on the report of the Local Commissioner appointed during
the proceedings to ascertain whether the construction
sought to be demolished is the basement or not. Though
the Architect has found that the area in question
measuring 19′.3 x 21′.3″ is having height of 7′.0″ to
7.6″ but still has given the opinion that it is not the
basement though this structure is situated on the ground
floor in the mezzanine form. It is for the enforcement
Authority to ascertain whether particular construction
comes within the definition of basement or not.
10. As is apparent from the provisions of Section
347E, any action of the MCD either for sealing the
unauthorised construction or demolishing the same it is
challengeable before the Appellate Tribunal of MCD. The
defense that the property in question is neither basement
nor unauthorised construction can be raised before the
said Tribunal. However the details given by defendant
No. 1 in paragraph 10 and other paras referred to above
show that the requisite notices were not only sent to the
plaintiff under Section 29 of the Act itself show the
service of show cause notices against unauthorised
construction. The averments of defendant No. 1 in this
regard need to be reproduced and are as under :
“For the first time, unauthorised
construction of one room by erection of
partition walls at first floor was booked vide
file No. 89/B/UC/SPZ/86 dated 31.3.86, secondly
unauthorised construction of five rooms,
verandah and stair case at second floor was
booked vide file No. 326/B?/UC/SPZ/87 dated
22.11.87 thirdly unauthorised construction of
tin shed at IIIrd floor was booked vide file
No. 18/B/UC/SPZ/90 dt. 22.1.90 and fourthly
unauthorised construction of basement was
booked vide file No. 230/B/UC/SPZ/91 dated
25.6.91. A fresh show cause notice No. 124005
dated 30.78.93 for the unauthorised
construction of basement and stair case has
also been issued and served on the owners/builders.
Shri Nand Lal Sharma, Jitender Nath
Sharma and Sh. Ravinder Kumar as per law and
demolition notice No. 116658 dated 17.8.92 was
also issued and served upon the owner.
11. The service of these notices have bene validly
proved by DW 1 Ashok Kumar Assistant Engineer (Building)
of the MCD. It is difficult to ram down the throat that
the Junior Engineer will go to the spot for demolishing
the property without serving the requisite notice. Even
during the suit proceedings, the plaintiff had sufficient
information as to the service of notices referred to in
paragraph 10 of the written statement. Merely because
some of the notices have been quashed does not mean that
these were not served. Nor does it mean that the
plaintiff should have rushed to the Civil Court. Remedy
was before the Appellate Tribunal.
12. The plaintiff has tried to take misplaced
benefit of the ratio of Shiv Kumar’s case as the Supreme
Court has taken the view that it is in some special cases
where jurisdictional error on the part of the Corporation
is established that a civil suit is maintainable. The
observations made by the Supreme Court to the effect that
the court should not entertain the suit in connecting with
the proceedings initiated for demolition are noteworthy
and need to be reproduced. These are as under :
“In some special cases where
“jurisdictional error” on the part of the
Corporation is established, a suit shall be
maintainable. According to us.
(1) The Court should not
ordinarily entertain a suit in
connection with the proceedings
initiated for demolition, by the
Commissioner, in terms of Section 343(1)
of the Corporation Act. Teh Court
should direct the persons aggrieved to
pursue the remedy before the Appellate
Tribunal and then before the
Administrator in accordance with the
provisions of the said Act.
(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 of 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.”
13 In view of the aforesaid facts the suit itself
is barred by the provisions of Section 347(E) of the Act
and is hereby dismissed. However, the plaintiff is
granted one month time to avail the remedy before the
Appellate Tribunal and during this period the suit
property shall not be demolished.
14. With the above observation, suit stands
disposed of.
