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TMI Blog1995 (5) TMI 283X X X X Extracts X X X X X X X X Extracts X X X X ..... cance for the public at large. (3) On 19.11.1994, Anz Grindlays Bank, (hereinafter referred to as the Bank, for short) has filed suit No. 2581/94 accompanied by an urgent application seeking ad interim injunction. It was a non working Saturday. Counsel for the plaintiff made a special mention, impressing upon the court the urgency involved, highlighting the irreparable injury which the plaintiff would suffer by sealing and/or demolition of the premises in its occupation, persuading the court to pass an exparte order of interim injunction at least for four days, the date of hearing after notice to the opposite party having been appointed as 23.11.1994. (4) The Commissioner MCD, Smt .Usha Devi and M/S Aggarwal Developers Pvt Ltd the three have been imploded as defendants 1, 2 and 3 respectively. The suit premises are situated on plot No. M-l, Ndse II. There is a building with a basement and two and a half floors above. If the basement is to be counted as a floor, there are three-and-a-half floors in all. (5) According to the plaintiff bank the ground floor and the basement of the building have been obtained by it on lease and possession secured w.e.f. 1.5.94, though the leas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et to make an appearance in the case. (11) The defendant No.1 has filed its reply to the plaintiff's application under Order 39 Rules 1-2 CPC. All the material averments have been denied. It is contended that the suit does not lie and that the plaintiff does not deserve being allowed any interim relief. (12) The entitlement of the plaintiff bank to use the tenancy premises for commercial purpose has been seriously disputed. It has been denied that the premises have been in commercial use ever since 1961-62 not to talk of their having been in such use since before 1961-62. It is stated that the building plan in respect of the premises in question was sanctioned by MCD vide No. 55/A/HQ/87/171/AE(B)/HQ dated 22.5.1987 for residential purpose. Again the revised building plans were sanctioned vide No. 794/B/HQ/90/74/AE-1 dated 30.1.1991 for residential purpose and even the completion certificate had been. issued permitting only residential use of the building. However, after obtaining the completion certificate the building owner Smt Usha Pathak carried out unauthorised construction of excess coverage at the basement, ground floor, first floor and second floor, by covering the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sor . Collector South Zone MCD, which affidavit proposes to expose and demonstrate the falsity of the entry in the Inspection . Book of the property tax department of MCD, heavily relied on by the plaintiff Bank. (18) On behalf of the plaintiff certified copy of an entry in the Inspection Book of the property tax department of MCD indicating an inspection made on 29.1.1962 of the building in question i.e. M-l, Ndse Ii has been filed which shows the property being then used for shops and godowns. The Deputy Assessor . Collector alleges this inspection report to be false and fabricated and 'planted' in the record in collusion with some one of the subordinate municipal staff. He has scrutinised all the relevant record and brought out and put forth for the consideration of the court the following circumstances in his affidavit : A) For the first time the construction plans were got sanctioned on 30.3.65 prior to which this was a vacant plot of land. Thus, there being construction prior to 30.3.65 is wholly impossible. B) That the entry of plot No, M-1 has been planted in the inspection book. The said entry is in an ink which is wholly different from the ink used o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re file relating to the sanction of building plans in regard to plot No. M-l which is the suit property. He states that there was no building existing on the plot in question prior to 1965. For the first time the building, plans were sanctioned on 30.3.65 and sanction conveyed to the owners on 8.4.65. Pursuant to the sanctioned plan of the building only a garage and a servant quarter were constructed. Remaining plan had lapsed. On 29.4.68 a fresh application for sanction of building plans was received and sanctioned on 14.5.68. Against it only half of the ground floor was constructed. The remaining plans lapsed and again got re-sanctioned in 1971. Once again the additions/alterations were sanctioned in 1987 and then in 1991. Sanctions were only for residential purpose since the land user in the area was for residence only. Prior to 1965 no construction existed on the plot in question. (20) As to reliance by the plaintiff on a certain entry in the house tax record of 1961-62, it is submitted that senior officer Narbada House, Narbada Project New 498 Delhi has vide certificate dated 13.8.88 certified the house having been taken by the Gujrat Govt on a rent of ₹ 4000.00 for u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rsuant whereto they have carried out additions/alterations in the suit property in accordance with the sanction conveyed to Smt Usha Pathak by the M.C.D. through its letter dated 30.1.1991. The plaintiffs claim to have come into occupation of part of the premises on 1st and 2nd floors. Delhi is governed by two notified Master Plans - the earlier one being of 1962 and the present one being Master Plan-2000. The area of the suit plot is 981 sq mts. It falls in the category of 'above 500 to 1000 sq mts'. The earlier Master Plan of 1962 provided entitlement to this category of plots for a maximum ground coverage of 40%, Far 100, number of DUs 5 and maximum height of 11 mts. The new Master Plan- 2000 further provides that in case of residential plots above 250 sq mts situated ' on road with width of 24 mts and above and where already three stories and a barsati was permitted ( as per density calculated in the sanctioned lay out), (a) Far shall be increased by maximum ground floor coverage (b) maximum height shall be 14 mts and (c) number of DUs shall be 7 ( instead of 5). (24) According to the plaintiffs the suit plot faces Ring Road which is more than 24 mts wide and wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any of the two suits. She is the appellant comfortably prosecuting her appeal before the Appellate Tribunal MCD, under Section 343(2)/347B of the DMC Act. Thus, on the impugned action initiated under Section 343/344 of the MCD Act there is a three-pronged defensive attack-one by the owner, one by the builder and one by the tenant. (28) It may also be stated that during the course of hearing the learned counsel for the plaintiff in suit No. 2581/94 has certainly made a departure from the scope of the suit as framed and raised a few contentions which are not set out in the pleadings. I may place on record that during the course of hearing which continued day after day, documents after documents were taken out by the learned counsel from his brief and handed over to the court and the counsel for the MCD. At the close of the hearing a consolidated list of such documents has been filed. In a civil suit parties are bound by their pleadings. The court would' not entertain any plea beyond those raised in the pleadings. However, in the peculiar facts and circumstances of this case, the court has chosen not to adhere strictly to this rule of pleadings and has chosen to enter into exa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the facts found prima facie is sufficient to disentitle the plaintiffs from the discretionary relief of injunction? (7) Whether power to demolish conferred by Sections 343 DMC Act is discretionary? Whether the impugned action of demolition without exercising discretion to demolish or not to demolish is arbitrary? (8) Whether the building in suit is being treated by authorities with hostile discrimination? (9) Whether the plaintiffs can take protection behind the doctrine of Promissory Estoppel and Legitimate Expectations? QUESTION No.1: Whether the suit property was in commercial use since before 1962? (31) As already noticed, the whole edifice of the Bank's case is founded on the inspection report dated 29.1.1962 (referred to in para 6.1.1 above). Suffice it to say that the two affidavits-one of Shri J.M. Mehta, Deputy Assessor Collector, South Zone (para 6.1. above) and of Shri R.B.S. Bansal, Zonal Engineer South Zone M.C.E. (para 6.2 above) - are enough to demonstrate the falsity of the so-called inspection report dated 29.1.62 filed on behalf of the plaintiff. The original record was kept available by the DMC in the court and a perusal of the origi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e limits but within ten percent compoundable limits having already been directed to be compounded subject to payment of the compounding fee. The building as it exists today has deviations beyond the compoundable limits. QUESTION No.3: Who is entitled to notice u/s 343 and 344 of DMC Act? (37) Whether a tenant or any person other than the owner is entitled to a notice under Section 343/344 of the DMC Act? (38) The provisions contained in Sections 343 to 347(B) and 347(E) of The Delhi Municipal Corporation Act, 1957 are relevant. (39) Under Section 344, if any unauthorized construction commences, the Commissioner may require 'the person at whose instance the building or the work has been commenced or is being carried on' to stop the same forthwith. (40) Under Section 343 the Commissioner may make an order directing such unauthorized erection or work shall be demolished by 'the person at whose instance the erection or work has been commenced or is being carried on or has been completed'. The 'person aggrieved' by such an order of the Commissioner may prefer an appeal against the order of the Commissioner to the Appellate Tribunal. No Court shal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erection or work has to be made against such person if the work is in progress or has been completed. (2) A direction to stop the erection or work, if the same has not been completed, has to be made against such person. (3) He is entitled to a reasonable opportunity to show cause why such order shall not be made. (4) He is entitled to prefer an appeal to the Appellate Tribunal against the order. IN the first proviso to sub section (1) the words the person mean the person at whose instance the erection or work has been commenced or is being carried on or has been completed . (48) The owner might have inducted a tenant in the premises after the completion of the impugned erection or work. It may be that the owner has inducted the tenant and thereafter the erection or work is done on the premises. (49) The former case presents no difficulty because the work or erection having been done by the owner he only would be entitled to notice and the tenant by no stretch of language would fall within the definition of the person entitled to notice. (50) In the latter case, there may be two situations. (I) The owner/landlord might have authorised and permitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hough not entitled to a notice and though the order may not be directed against him still would have right to prefer an appeal against the order for demolition, he being a person aggrieved by the order. Of course, during the hearing of the appeal he cannot claim any right on a pedestal higher than that of the owner/landlord under whom he claims and who has inducted him into the properly. (53) It is clear that the plaintiff in suit No. 2581/94 being a tenant and the plaintiff in suit No. 106/95 being a builder, none was entitled to a notice under sections 343/344 of DMC Act. QUESTION No.3A: Whether the notice under Section 343/344 is invalid for not having been issued by the Commissioner. (54) Though Sections 343/344 of the DMC Act authorise the Commissioner to take an action under the said provision, notice in the case at hand has been signed by the Zonal Engineer buildings, South Zone. Section 491 of the Act permits the powers of the Commissioner being delegated for exercise and performance by any municipal officer or other municipal employee of the Corporation. (55) The learned counsel for MCD has brought to my notice copy of order No. F.4(6)/63-i-Law-Corp dt 3.4.63 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt should entertain a suit questioning the validity of an order passed under Section 343 of the Act, only if the Court is of prima fade 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. (60) None of the two cases at hand is one where the plaint alleges the suit property to be out of Corporation limits or where any jurisdictional error on the part of Corporation is established even prima facie. The construction in question was not made prior to coming into force of provisions of law violation whereof is in question. (61) It has already been held that the two plaintiffs being tenant and builder respectively have the remedy of appeal available to them. (62) There is no reason to make a departure from ordinary rule laid down by their Lordships in Shiv Kumar Chadha's case. The plaintiffs must seek their remedies before the Appellate Tribunal. QUESTION No.5: Whether the provisions of the Master Plan-2000 are unconstitutional and hit by Article 14 of the Constitution prima facie? (63) Mr. Mukul Rohtagi, Senior Advocate, appearing for the buil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. Such plans are approved by the Central Government under Section 9. Date of operation is provided by Section 11. The mandatory provisions contained in Section 14 prohibit user of any land or building otherwise than in conformity with such plan. Then the previous user and its continuance, though inconsistent with the plan, is excepted. Section 29 makes contravention of the plan a punishable offence. Section 30 imposes penalty of demolition of contravention. All these provisions highlight the importance and utility of the Master Plan for the planned development of Delhi, the object behind and the mandatory nature of the provisions. (66) Master Plan is prepared in exercise of the statutory power conferred by the Delhi Development Act. It is a part of the legislative activity. The preamble and several provisions of the Delhi Development Act, especially Sections 6,7,9 to 12, 14 and 29 as also the provisions of Chapter Xvi of the DMC Act, and the Building Bye Laws clearly reveal that the lay Out plan of a colony is sanctioned by giving due regard to the proposed population density of the colony. All infrastructural facilities such as roads, parks, post offices, police stations, scho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw. (American Jurisprudence 2d Vol 83 para 1) The legislative judgment in a zoning matter may not be annulled simply because a court disagrees with the wisdom of such judgment. ( para 48, page 68, above). (70) Very recently their Lordship of the Supreme have held in Virender Gaur Ors vs State of Haryana Ors (1995)2SCC577 : The word environment is of broad spectrum which brings within its ambit hygienic atmosphere and ecological balance. It is, Therefore, not only the duty of the State but also the duty of every citizen to maintain hygienic environment. The State, in particular has duty in that behalf and to shed its extravagant unbridled sovereign power and to forge in its policy to maintain ecological balance and hygienic environment. Article 21 protects right to life as a fundamental right. Enjoyment of life and its attainment including their right to life with human dignity encompasses within its ambit, the protection and preservation of environment, ecological balance free from pollution of air and water, sanitation without which life cannot be. enjoyed. Any contra acts or actions would cause environmental pollution. Environ mental, ecological, air, water, poll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , State of Rajasthan vs Rajasthan Pensioner Samaj AIR1991SC1743 , State of W.B. vs Ratan Behari Dey (1993)IILLJ741SC , Mafatlal Group Staff Association vs RCPF (1995) 4 SCC 58 (74) While interpreting municipal legislation framed in public interest, a strict constructional approach must be adopted. (75) The learned counsel for the defendant has rightly submitted that if the plaintiff may complain of inequality in treatment and hostile discrimination between the two Master Plans then every one shall have to be restricted to 2-1/2 floors rather then permitting violation of law by all. (76) A perusal of the Master Plan 2000 shows that the same has been notified by the Central Govt after considering the objections and suggestions. The Preamble to the Master Plan suggests that it is totally public purpose oriented based on historic facts and guided by expert opinion. (77) For the foregoing reasons the challenge to the provisions of the Master Plan 2000 as unconstitutional and hit by article 14 of the Constitution cannot be sustained even prima facie. QUESTION No.6: Conduct of Parties in Injunction Applications : Conduct of two Sets of plaintiffs (78) In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m relief. (83) The principle has been followed by this High Court in several subsequent decisions. (84) In Seemax Construction (P) Ltd vs. State Bank Of India Air 1992 Delhi 197 the Court has expected the plaintiff to make full, complete and honest disclosure and avoid suppression of material facts failing which the court would dismiss the application without going into merits. (85) In Anand Saroop vs. M.C.D 36(1988) DLT304, deliberate attempt on the part of the plaintiff to mislead the court was held enough to disentitle the plaintiff to any interim relief of injunction. (86) Udey Chand Vs. Shanker Lal [1978]2SCR809, Charanji Lal Vs. Financial Commissioner, Haryana Air 1978 P h 326, are the cases where the Courts were exercising jurisdiction under either Article 136 or Articles 226, 227 of the Constitution. It has been held that untrue or misleading statement or suppression of material facts would be enough to disentitle the petitioner from relief in discretionary jurisdiction of the court. (87) Recently in S.P. Chengalvaraya Naidu v. Jagananath AIR1994SC853 while commenting on the non-production and non-mention of a document having a material be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t that the building was going to be sealed and demolished resulting in irreparable injury to the plaintiff. There was no question of demolition when the stay order made by the appellate authority was in operation. Learned counsel for the defendant has stated that there was no decision taken as yet to seal the premises and no order made till this day for sealing the building or any part thereof. (91) The plaintiff has also made a material concealment of completion certificate. If only the completion certificate would have been placed before the court, the court would have learnt that the building was residential. The court could have also satisfied itself if there were any violations or breaches committed after issuance of completion certificate. (92) The plaintiff has stated that there was no unauthorised construction in the premises requiring demolition and that no provision of DMC Act was violated. Both the averments are false. (93) It has already been discussed and held that the plaintiff has filed a false and planted document namely the inspection report dated 29.1.62 in an attempt to persuade the court to form an opinion that the building was being subjected to commer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be arbitrarily exercised, the use of the word may confers a discretion on the Commissioner to demolish or not to demolish an unauthorised construction. In the said case Section 363 of the Calcutta Municipal Act conferred discretion on the Judicial Magistrate by providing that the Magistrate may pass an order for demolition of the building, after convicting a person for construction without permission. Their I Lordships agreed with the contention that a building shown to have been erected or completed without permission was not to be demolished as a matter of course; the Magistrate had a discretion in directing or not a demolition. Mr Jaitley, senior advocate appearing for M.C.D. has rightly distinguished the Corporation of Calcutta's case by submitting that it was a case of trivial unauthorised activity. He further submitted that in so far as Delhi is concerned, Building Bye Laws, 1983 are applicable, Appendix-Q Whereof categories unauthorised constructions into two:- non-compoundable and compoundable. He states that in compoundable items deviations are being compounded as a matter of course while in non-compoundable items Municipal Commissioner or any other authority for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the preceding para 61 above. (102) Question No. 8: The charge of hostile discrimination, qua the suit building? The suit building has' been singled out for demolition though the other properties in the same locality were being subjected to commercial use and were not proceeded against, was summarily contended and needs a summary disposal. Learned counsel for the defendant DMC has pointed out that the action was initiated against all the buildings of the locality which were having unauthorized constructions/ deviations and / or unauthorized users subject to permissible compounding. However, in most of the cases the demolition was stayed by different judicial fora. The learned counsel for MCD emphatically stated that not a single violation of law was being spared and if there be some lapse at the lower level the authorities would immediately take steps if any lapse was brought to their notice. (103) Question No. 8: Charge of Invidious Discrimination: Qua the Suit Building What is guaranteed by the Constitution is equality before the law. It means equality in the observance of law and not equality in violation of law. (104) In Khem Singh vs Union Of India 1975 L I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the plaintiff, had promised in its election manifesto that it would permit one extra floor and additional 25% coverage in the pre-existing buildings and regularise all the illegal, colonies. Both these actions were not permitted by the laws in force on the date of the election manifesto. Thus, it was the promise to do a thing which was illegal on the date of the promise. It was also against public policy to materialise such promise. A plea of promissory estoppel cannot be founded on a promise to legislate made by a political party. (110) A legitimate expectation to be so, has to be legitimate and not illegitimate one. (111) Laamrit Bansapati Co. Ltd vs. State of Punjab 1992(59) ELT 13 (SC), the State Govt in a brochure issued promised refund of sales tax as incentive and concession to industries: The industrialists acted on such promise but the State could not honor it. Their Lordships held: - ANY Agreement for refund of sales tax due under the Act to individual being contrary to public policy was void under S. 23 of the Contract Act. The constitutional requirements of levy of tax being for the welfare of the society and not for a specific individual the agreement o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ff may be such that it would be unjust to make him wait until the trial for relief. In such cases the court may grant an injunction operating until the trial or further order, thereby maintaining the status quo and facilitating the administration of justice at the trial; and a plaintiff who has been refused an injunction until trial may, if he wishes to appeal against the refusal, be granted an injunction pending the hearing of his appeal. In a proper case an interlocutory injunction may be granted even through it gives the plaintiff the whole of the relief for which he would ask at the trial. STRENGTH of plaintiff's case. The application for an interlocutory injunction must normally be heard on the basis of affidavit evidence, without cross-examination. This gives rise to a major difficulty in deciding whether or not the injunction ought to be granted, for at this stage disputed questions of fact cannot satisfactorily be resolved which in turn leads to difficulties in determining how strong a case the plaintiff must establish in order to obtain an interlocutory injunction. Over the years a rule was evolved that the plaintiff would be granted an interlocutory order only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plaintiffs has alleged any malice against any official of the Corporation. (122) Prima facie the civil suits are not maintainable. Alternative remedy of appeal is available to the plaintiffs. (123) THOUGHTS- Et Seq And Et Sic De Similibus :- These two cases provide an opportunity for placing on record a few random thoughts. Courts of law are frequently faced with such suits wherein the builder or owner or person in occupation of building rushes to the court pressing for the grant of ex parte injunction submitting that unless protected by the court his valuable property would be demolished and if the injury has already been done, it would never be undone even if the plaintiff may finally succeed in the suit. Such suits being filed are not uncommon and are mentioned for hearing during the rush of already heavily listed matters and even on holidays. Situations, sometimes as they are and at times aggravated are projected- Demolition squad led by bulldozers and escorted by police force has already taken position and if not protected post haste the construction worth lac. and crores will be done to ruins in minutes and the milk of benevolence flows from the udders of justice- why n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r injunction contains a categoric statement on affidavit of the applicant that the existing construction and the use to which the property was being subjected was not inconsistent with the Master Plan of Delhi and any other law applicable to such locality and/or building, and that there has been no unauthorized construction or user violating the sanctioned plan/the Master Plan. (C) if the court be inclined to grant an ex prate injunction restraining sealing demolition of the building, to put the plaintiff also on terms asking it to undertake that during the period of operation of injunction the plaintiff shall also maintain the status quo and shall not proceed with further construction, nor create third party interests. This would obviate the possibility of the plaintiff, completing its construction (if found to be illegal or unauthorized after hearing the opposite party) so also no third party would be roped into acquiring interest in the property or entering into possession thereof to its serious prejudice ( by the time the opposite party is served or makes appearance). (D) to examine prima facie the locus standi of the plaintiff to file the suit by reference to Section ..... X X X X Extracts X X X X X X X X Extracts X X X X
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