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SUPREME COURT OF INDIA
(Delhi High Court)
M.N. Venkatachaliah, C.J.I., N.P. Singh, P.B. Sawant, JJ.
SHIV KUMAR CHADHA, APPELLANT
VERSUS
MUNICIPAL CORPORATION OF DELHI AND OTHERS, RESPONDENTS.
WITH
D. M. SAWHNEY, APPELLANT
VERSUS
MUNICIPAL CORPORATION OF DELHI, RESPONDENT.
WITH
D. R. CHAWLA AND OTHERS, APPELLANTS
VERSUS
MUNICIPAL CORPORATION OF DELHI, RESPONDENT.
Civil Appeal Nos. 2531-33 of 1993
decided on May 4, 1993.
Delhi Municipal Corporation Act, 1957 - Section 331/332 - Bombay Tenancy and Agricultural Lands Act - Section 331 - Reasons for grant of ex parte injunction - Injunction is finally - Injunctions are for cases of real urgency - They have sought interference of this Court with the other part of order where it has been said that no civil suit will be entertained by any court in Delhi in respect of any action taken or proposed to be taken by the corporation with regard to sealing and/or demolition of any building or any part thereof - Any person aggrieved by an order of sealing or demolition which is passed shall however, have right of filing an appeal to the appellate tribunal under the Municipal act - Appellate tribunal is the only forum which has jurisdiction to grant interim relief - Other part of the order in respect of which objection has been taken is where the Court has directed Corporation to approach those courts which have already issued injunction "for variation and vacation of the injunction orders in light of said order – Held, Imperative nature of proviso has to be judged in context of Rule 3 of Order 39 of Code - Before proviso aforesaid was introduced, Rule 3 said court shall in all cases, except where it appears that object of granting the injunction would be defeated by delay before granting an injunction, direct notice of the application for the same to be given to the opposite-party - Proviso was introduced to provide a condition, where court proposes to grant an injunction without notice of the application to the opposite-party, being of the opinion that the object of granting injunction itself shall be defeated by delay - Condition so introduced is that the court "shall record the reasons" why an ex parte order of injunction was being passed in facts and circumstances of a particular case - In this background, the requirement for recording reasons for grant of ex parte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed why instead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation an court has to consider briefly these factors in the ex parte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But same cannot be said in respect of the proviso to Rule 3 of Order 39 - Parliament has prescribed a particular procedure for passing of an order of injunction without notice to the other side exceptional circumstances. Such ex parte orders have far-reaching effect, as such a condition has been imposed that court must record reasons before passing such order. If it is held that the compliance with proviso aforesaid is optional and not obligatory, then the introduction of the proviso by the Parliament shall be a futile exercise and that part of Rule 3 will be a for all practical purposes - Appeals are allowed
Key Points: - The court notes that no court shall entertain suits, applications or orders for injunction against the Commissioner's orders under certain sections, with appeals to the appellate tribunal and administrator as the remedy; courts should ordinarily direct aggrieved persons to pursue those remedies (!) (!) (!) . - The judgment discusses requirements for granting temporary injunctions, including that ex parte orders must have reasons recorded, must be limited in duration with service of notice, and a strong prima facie case is required for maintainability and balance of convenience (!) (!) (!) (!) (!) . - It emphasizes that where a statute provides a complete machinery and bars civil court jurisdiction, the remedy provided therein must be followed, though a court may entertain a jurisdictional challenge on grounds of jurisdictional error or non-application of the act; the exact scope depends on whether the act creates a right/liability and provides remedies within the statute (!) (!) (!) (!) (!) (!) (!) .
JUDGMENT
N. P. SINGH, J. - Special leave granted.
2. These appeals have been filed against an order passed by the Delhi High Court directing the Municipal Corporation of Delhi (hereinafter referred to as "the corporation") to issue appropriate notices to the owners/occupiers/builders of the buildings where illegal constructions have been made. A liberty has been given to the owners/occupiers/builders to file fresh building plans with the Corporation in conformity with the existing bye - laws. The building plans as filed are to be examined in accordance with the law. The Corporation has been directed that if it finds that the constructions are beyond the compoundable limits, then to seal the same and to demolish thereafter.
3. The appellants have no grievance so far as the aforesaid part of the order is concerned. They have sought interference of this Court with the other part of the order, where it has been said that "no civil suit will be entertained by any court in Delhi in respect of any action taken or proposed to be taken by the corporation with regard to the sealing and/or demolition of any building or any part thereof. Any person aggrieved by an order of sealing or demolition which is passed shall, however, have the right of filing an appeal to the appellate tribunal under the Municipal act. The appellate tribunal is the only forum which has the jurisdiction to grant interim relief." The other part of the order in respect of which objection has been taken is where the Court has directed the Corporation to approach those courts which have already issued injunction "for variation and vacation of the injunction orders in the light of the said order.
4. Initially a writ application was filed in respect of some private dispute between two neighbours. In due course on the material produced by one party or the other it was treated as a public interest litigation and by the impugned order the High Court has purported to find out a solution in respect of unauthorised constructions alleged to have been made by different owners/occupiers/builders in the different parts of the city without sanctioned plans or by making deviations from the plans which had been sanctioned. The Court has also purported to ensure that such unauthorised constructions are not perpetuated on the basis of interim orders of injunction passed by civil courts.
5. It cannot be disputed that by the impugned order the jurisdiction of any court in Delhi to entertain any suit in connection with demolition of any part of any building which, according to the Corporation, is unauthorised and illegal has been ousted.
6. The Delhi Municipal Corporation Act, 1957 (hereinafter referred to as "the Corporation Act") has made provisions for the constitution of the Corporation and has prescribed the procedure for election of the councillors, levy of taxes, sanitation and public health. Chapter XVI contains provisions regarding erection of buildings within the Corporation area. Section 331 defines the expression "to erect a building". Section 332 says that "no person shall erect or commence to erect any building or execute any of the works specified in Section 334 except with the previous sanction of the Commissioner". The relevant part of Section 343 is as follow :
"343. Order of demolition and stoppage of buildings and works in certain cases and appeal. - (1)
(2) Any person aggrieved by an order of the Commissioner made under sub-section (1) may prefer an appeal against the order to the appellate tribunal within the period specified in the order for the demolition of the erection or work to which it relates.
(3) Where an appeal is preferred under sub-section (2) against an order of demolition, the appellate tribunal may, subject to the provisions of sub-section (3) of section 347-C, stay the enforcement of that order on such terms, if any, and for such period, as it may think fit :
Provided that where the erection of any building or execution of any work has not been comple
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