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High Court Of Delhi
RA BHUJWALA - Appellant
Versus
MM.CORP OF DELHI - Respondent
Decided On : 05/10/1996
MUNICIPAL CORPORATION ACT - SECTION 343 - NOTICE TO SHOW CAUSE - JURISDICTIONAL ERROR - OWNERS OF PROPERTY ENTITLED TO NOTICE - FAILURE TO ISSUE NOTICE - JURISDICTIONAL ERROR - SUIT MAINTAINABLE.
Fact of the Case:
Plaintiffs filed a suit seeking to restrain the Municipal Corporation of Delhi (MCD) from demolishing their property under Section 343(1) of the Delhi Municipal Corporation Act, 1957 (the Act). The MCD had issued a notice under Section 349 of the Act requiring the plaintiffs to vacate portions of the property, alleging that certain portions were built in violation of the sanctioned plan. The plaintiffs contended that they were the owners and occupiers of the property and that no notice of demolition under Section 343 of the Act was served on them.
Finding of the Court:
The Single Judge dismissed the plaintiffs' application for a temporary injunction, holding that the suit was not prima facie maintainable in view of Section 343(4) of the Act. The plaintiffs appealed the decision.
Issues: Whether the plaintiffs were entitled to a show cause notice under Section 343 of the Act.
Ratio Decidendi: The Court held that the plaintiffs were entitled to a show cause notice under Section 343 of the Act. The Court noted that the MCD had recognized the plaintiffs as the owners of the property in a notice issued under Section 126 of the Act for amendment in the Assessment List. The Court held that the MCD's failure to issue a show cause notice to the plaintiffs was a jurisdictional error. The Court also held that the bar to suits under Section 343(4) of the Act did not apply in cases where there was a jurisdictional error.
Final Decision: The Court allowed the appeal and set aside the Single Judge's order. The Court granted an interim injunction restraining the MCD from demolishing the plaintiffs' property.
( 1 ) THIS appeal has been preferred by the plaintiffs against the order of the learned Single Judge dismissing the interim application filed by them seeking to restrain the MCD from acting upon its orders/notices dated 19. 8. 1994 and demolishing any part of the property of the plaintiffs/ appellants situated at C-191, Sarvodaya Enclave.
( 2 ) THE pffs. filed a suit for perpetual injunction seeking to restrain defendants 1 and 2 from acting upon the order/notice dated 19. 8. 1994 wherein it was ordered that the aforesaid premises would be demolished u/s. 343 (1) of Delhi Municipal Corporation Act, 1957 (the Act ). The pffs. arc the owners and occupiers of the ground floor including the basement, the first floor and second floor of building No. C-191, Sarvodaya Enclave. The defts. issued a notice u/s. 349 of the Act requiring the pffs. to vacate the portions in their occupation stating that certain portions of the ground floor and second floor have been built in violation of the sanctioned plan and therefore, unauthorisedly erected and liable to be demolished. The MCD, admittedly did not serve any notice of demolition u/s. 343 of of the Act on any of the pffs.
( 3 ) ON an application seeking temporary injunction filed by the pffs. the Single Judge granted interim injunction on 23,9. 94. He heard the arguments advanced by the respective parties on the application seeking a interim injunction and by order dated 28 9. 1995 was pleased to dismiss the application filed under Order 39 Rules 1 and 2 and vacated the interim injunction dated 23. 9. 1994 holding that the suit would not be prima facie maintainable in view of S. 343 (4) of the Act.
( 4 ) THE issue, therefore, that arises for our consideration is whether the pffs. or any of them is entitled to show cause notice u/s. 343 of the Act since they are the owners in possession of the building at the time of notice and the inspection by the officials of MCD. [in para 5, S. 343 is reproduced].
( 5 ) THE learned Single Judge on consideration of S 343 of the Act and the rival submissions held that the pffs. being not the persons at whose instance the impugned erection of work had commenced are not entitled to notice to show cause under the proviso to S. 343 (1) of the Act. He further held that since the suit in view of S. 343 (4) of the Act would not be prima facie maintainable for the reasons aforesaid the pffs. would not be entitled to the relief of injunction and accordingly the interim application seeking for temporary injunction was dismissed. The aforesaid findings of the learned Single Judge were assailed before us by Mr U. S. Phoolka, who appeared on behalf of the appellants According to him, there could be no absolute bar in entertaining a suit by the civil court questioning the validity of an order passed u/s. 343 of the Act. He submitted that although the Defts. 1 and 2 recognised the plaintiffs as owners of the property in question yet no notice was served on them asking them to show cause and accordingly there is an apparent jurisdictional error in exercise of the power by the Defts. No. 1 and 2. Learned counsel for the appellant relied upon Shiv Kumar Bhadda vs. MCD in 50 (1993) DLT 492 (SO [1993. Raj. LR 374].
( 6 ) MR. Jolly, appearing for the respondents heavily relied upon the provisions of S. 343 (1) read with the proviso thereunder and also on S. 343 (2) and (4) of the Act. In his submission the plan was sanctioned in the the name of Pritam Singh and that the pff. came in possession of the properly in question subsequently. According to him since the impugned structure or work had not been commenced at the instance of the pff. no notice u/s. 343 (1) was required to be served upon any of the pff. In support of his submission. Learned counsel relied upon A and J Grindlays Bank vs. Comm, MCD 1995 (2) AD (D) 575.
( 7 ) OUR attention has been drawn to a copy of the notice issued by the Defts. 1 and 2 u/s. 126 of the Act for amendment in the Assessm
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