JUDGMENT
K.S. Gupta, J.
1. This order will govern the disposal of
I.A.7526/02 filed under Order 39, Rules 1 & 2 read with
Section 151 CPC by the plaintiff.
2. Suit was filed, interalia, alleging that plaintiff
is the owner of property No. BM-30 (West), Shalimar Bagh,
Delhi and building plan for carrying additions and
alterations in property was sanctioned by the defendant on
20th July 1999. On 23rd July 1998 a notification was issued
by the Ministry of Urban Affairs & Employment were by the
building bye-laws 1983 were amended in the light of
recommendations made by the Committee set up under the
Chairmanship of Sh. V.K. Malhotra. Modifications made in said
bye-laws have been set out in Para 3 of the plaint. It is
alleged that the plaintiff started making additions and
alterations in property on the basis of relaxed building
bye-laws. Defendant issued show cause notice dated 1st
March 2002 alleging that plaintiff had made deviations
beyond the sanctioned building plans by way of excess
coverage at basement, ground floor, first floor and second
floor. Plaintiff sent a reply dated 6th March 2002 to the
show cause notice to AE (Bldg), Rohini Zone, MCD. Without
considering the reply the defendant issued demolition notice
dated 11th March 2002 under Section 343 of Delhi Municipal
Corporation Act (for short the ‘Act’) requiring the
plaintiff to demolish excess construction/deviations
mentioned in said show cause notice within 6 days.
Plaintiff made representation on 22nd April 2002 against the
notice dated 11th March 2002 stating that basement had been
closed and alleged excess coverage was being demolished to
bring it to the level of sanctioned building plans and
defendant was asked to drop proceedings. It is further
alleged that by the order dated 18th June 2002 under Section
345-A of the Act the defendant illegally ordered the sealing
of property and entire third floor, back portion (two bed
rooms) of second floor and first floor were sealed the same
day without giving opportunity to the plaintiff to make
representation against that order. Defendant issued yet
another notice dated 12th July 2002 under Section 435 of the
Act. After sealing of property the plaintiff sent yet
another representation to the Additional Commissioner (HQ),
MCD asking for two months time to rectify the
deviations/unauthorised construction. Defendant without
considering the replies/representations of the plaintiff
demolished part of portion on third floor on 18th June 2002,
15th and 16th July 2002. Defendant has started demolition
work of second floor from 22nd July 2002 without
regularising the construction. It was prayed that by decree
of permanent injunction the defendant be restrained from
taking any action of demolition and/or sealing of any
portion of suit property; by decree of declaration it be
declared that the order dated 18th June 2002 passed by
defendant is null and void and construction in the property
be ordered to be regularised.
3. In said I.A. the plaintiff has claimed reliefs
(a) and (b) as made in the plaint by way of ad interim
injunction and de-sealing of property.
4. Defendant contested the suit by filing written
statement. It is admitted that plaintiff had applied for
sanction of building plan for additions/alternations on the
first and second floors of property which was approved vide
File No. 450/B/RZ/99 dated 20th July 1999. It is alleged
that upon receipt of a complaint from Vigilance Department
the J.E.(Bldg.), Rohini Zone inspected the suit property and
on finding unauthorised construction of basement,
addition/excess coverage on ground, first and second floors
and unauthorised construction of third floor, a case was
booked vide U/C file No. 30/B/UC/RZ/02 dated 1st March, 2002.
Show cause notice dated 1st March 2002 was accordingly
served on the plaintiff. On not receiving reply to show
cause notice within the stipulated period, demolition notice
dated 11th March, 2002 was issued to the plaintiff.
Thereafter, demolition order was made on 21st March 2002 by
the competent authority. It is further alleged that
operation of the Notification dated 23rd July 1998 has been
stayed by the Supreme Court by the order dated 11th December
2001 in WP(C) No. 725/94. Unauthorised construction on the
third floor of suit property cannot be considered for
regularisation in view of O.O.No. D/577/Addl.Commr.(E)/2002
dated 31st January 2002. It is asserted that sealing order
was made by the Deputy Commissioner, Rohini Zone after
carefully considered the matter. It is stated that
although demolition order was passed in March 2002 the
actual action of demolition was started only in June 2002.
Sealing of unauthorised portion of property was done so that
there was no further misuse.
5. In the short reply filed to the I.A. under
disposal the defendant has reiterated the stand as taken in
the written statement.
6. Submission advanced by Ms. Anusuya Salwan for
plaintiff was mainly two-fold-(i) plaintiff’s reply dated
6th March 2002 was not considered while issuing demolition
notice dated 11th March 2002 and (ii) relaxed bye-laws were
in force at the time the construction was carried out and
plaintiff was under a bonafide impression that alleged
excess coverage and unauthorised construction beyond
sanctioned plan will be permitted to be compounded on
payment of fee. It was, however, pointed out by Ms. Mini
Pushkarna for defendant that plaintiff had deliberately
suppressed about the filing of appeal against the order of
sealing etc before the Appellate Tribunal, MCD on 15th July
2002 and non-grant of ex parte stay against demolition by
the said authority. It was further pointed out that during
the pendency of appeal before Appellate Tribunal the
plaintiff filed this suit, obtained ex-parte stay against
demolition on 26th August 2002 and got the appeal dismissed
in default on 30th August 2002. Copies of grounds of
appeal, stay application and notice dated 31st July 2002
filed by the defendant are placed on pages 34 to 44 on Part
III file. As is manifest from sub paras (c) and (d) of Para
8 of the grounds of appeal, the plaintiff had impugned
therein the aforesaid demolition notice as also order of
sealing of property made by the defendant. Further, in stay
application the relief claimed was to suspend the order of
demolition passed in respect of a part of suit property till
the disposal of appeal. Said notice dated 31st July 2002
would show that in appeal being No. 222/ATMCD/2002 notice was
issued to defendant for 24th September 2002. To be only
noted that against the orders of demolition and sealing of
property, appeal lie before the Appellate Tribunal under the
Act. Obviously, having remained unsuccessful in obtaining
stay against demolition in said appeal, the plaintiff filed
the present suit on 26 August 2002 before the date for
which the appeal was fixed for hearing and obtained ex-parte
stay against demolition on the application under disposal in
terms of the order dated 26 August 2002 without disclosing
the factum of filing of said appeal, stay application and
non-grant of stay against demolition by the Appellate
Tribunal. Relief of injunction being discretionary in
nature cannot be granted to a person who comes to the court
with unclean hands. Thus, without going into the merits of
aforementioned submission advanced on behalf of plaintiff
the ad interim restraint order dated 26th August 2002 which
continues to operate till date, deserves to be vacated
forthwith.
7 Accordingly, the application is dismissed and
order dated 26 August 2002 is hereby vacated.