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2002 Supreme(Del) 1799
High Court Of Delhi
SURENDER KUMAR SINGHAL - Appellant
Versus
MUNICIPAL CORPORATION OF DELHI - Respondent
Interim Application 7526 of 2002
Decided On : 12/03/2002
ANUSUYA SALWAN, Mini Pushkarna
Headnote:Delhi Municipal Corporation Act, 1957 - Sections 343, 345A, 435 — Sealing and demolition — Injunction — Additions and alterations deviating beyond sanctioned building plans — Suit for permanently injuncting MCI) from resorting to seal and demolish alleged excess coverage to bring down to the level sanctioned — Interlocutory application for ad interim injunction granted, but factum of non-grant of stay by Tribunal under DMC Act not disclosed — Interim injunction not be granted in favor of a party who conies to the court with unclean hands — I.A. dismissed — Civil Procedure Code, 1908, Section 151, Order 39, Rules 1, 2.
Held:
As is manifest from the grounds of appeal, the plaintiff had impugned therein the 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 notice was issued to defendant on 24th September 2002, 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 26th August 2002 before the date for which the appeal was fixed for hearing and obtained ex pane stay against demolition on the application under disposal in terms of the order dated 26th 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 submissions for plaintiff, the ad interim restraint order which continues to operate till date, deserves to be vacated forthwith.
( 1 ). This order will govern the disposal of i. A. 7526/02 filed under Order 39 Rules 1 and 2 read with section 151 CPC by the plaintiff.
( 2 ) SUIT was filed,interalia, alleging that plaintif is the owner of property No. BM-30 (West), Shalimar Gagh 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 and Employment whereby 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 propert/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 llth 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 yot 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/alterations on the first and second floors of property which was approved vide file N0. 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, additions/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 accordingl served on the plaintiff* On not receiving reply to sho cause notice within the stipulated period, demolition notic dated 11th March 2002 was issued to the plaintiff thereafter, demolition order was
