Back
1990 Supreme(Del) 421
High Court Of Delhi
NEHRU PLACE HOTELS - Appellant
Versus
DELHI DEVELOPMENT AUTHORITY - Respondent
Interim Application 4435 of 1990
Decided On : 12/21/1990
A.K.NIGAM, ARUN JAITLEY, D.N.Sawhney, Harish Malhotra, L.R.GUPTA, Mahinder Singh Dahiya, V.K.Seth
Service of notice in a writ petition can be considered as sufficient compliance with the provisions of Section 53-B of the Delhi Development Act, 1957, if the authorities are well aware of the cause of action and the facts on the basis of which the person has sought the reliefs.
Headnote:
DELHI HIGH COURT - BUILDING BYLAWS - OCCUPANCY CERTIFICATE - MANDATORY INJUNCTION - NOTICE UNDER SECTION 53-B OF DELHI DEVELOPMENT ACT, 1957 - SERVICE OF NOTICE IN WRIT PETITION - SUFFICIENCY OF NOTICE - GRANT OF INTERIM MANDATORY INJUNCTION - GUIDELINES.
Fact of the Case:
Plaintiff, a lessee of a plot of land from DDA, filed a suit seeking issuance of occupancy certificate (OC) for two blocks constructed in accordance with sanctioned plans and electricity connection from DESU. DDA raised a preliminary objection that the suit was not maintainable without statutory notice under Section 53-B of the Delhi Development Act, 1957 (DDA Act). Plaintiff contended that service of notice in a writ petition filed earlier, which was dismissed as withdrawn with liberty to file fresh legal proceedings, was sufficient compliance with Section 53-B.
Finding of the Court:
1. Service of notice in the writ petition amounted to strict compliance with the provisions of Section 53-B of the DDA Act. The purpose of the notice is to enable the authorities to examine the claim of the person giving the notice and settle the claim without legal proceedings. In the present case, the reliefs sought in the suit were the same as those sought in the writ petition, and the defendants were well aware of the cause of action and the facts on the basis of which the plaintiff had sought the reliefs. Therefore, no useful purpose would have been served by the plaintiff serving a notice giving the same facts and the cause of action to the defendants. 2. The defendants were estopped from raising any other ground for denying the OC to the plaintiff, as they had not given any other reason for refusing the OC in the letter rejecting the application for grant of OC. The Building Bylaws 1983 mandate that various reasons for refusing the OC shall be quoted at the first instance itself. 3. The mere fact that the hotel building had not been completed was not a ground for refusing to grant the OC in respect of the two blocks in question, as the two blocks were self-sufficient, functional, and constructed in accordance with the bye-laws and the building permit. The Building Bylaws do not contemplate the construction of the whole of the project sanctioned before the OC is to be issued. 4. The plaintiff was not liable to pay the penalty amount imposed for the delayed construction, as the delay was not attributable to the plaintiff. The plaintiff had obtained the necessary sanctions and approvals from the authorities, and the delay was caused due to factors beyond the plaintiff's control, such as the ban on high-rise buildings imposed by the Central Government. 5. The plaintiff was entitled to an interim mandatory injunction requiring the DDA to issue the OC and DESU to supply electricity to the two blocks, as the plaintiff had a strong prima facie case, the balance of convenience was in favor of the plaintiff, and irreparable loss and injury would be caused to the plaintiff if the injunction was not granted.
Issues: 1. Whether service of notice in the writ petition was sufficient compliance with the provisions of Section 53-B of the DDA Act? 2. Whether the defendants were estopped from raising any other ground for denying the OC to the plaintiff? 3. Whether the mere fact that the hotel building had not been completed was a ground for refusing to grant the OC in respect of the two blocks in question? 4. Whether the plaintiff was liable to pay the penalty amount imposed for the delayed construction? 5. Whether the plaintiff was entitled to an interim mandatory injunction requiring the DDA to issue the OC and DESU to supply electricity to the two blocks?
Ratio Decidendi: 1. The purpose of the notice under Section 53-B of the DDA Act is to enable the authorities to examine the claim of the person giving the notice and settle the claim without legal proceedings. If the authorities are well aware of the cause of action and the facts on the basis of which the person has sought the reliefs, then service of notice in a writ petition can be considered as sufficient compliance with the provisions of Section 53-B. 2. The principle of estoppel applies when a party has made a representation or taken a position that induces another party to rely on it to their detriment. In the present case, the defendants had not given any other reason for refusing the OC in the letter rejecting the application for grant of OC. Therefore, they were estopped from raising any other ground for denying the OC to the plaintiff. 3. The Building Bylaws do not contemplate the construction of the whole of the project sanctioned before the OC is to be issued. Therefore, the mere fact that the hotel building had not been completed was not a ground for refusing to grant the OC in respect of the two blocks in question, which were self-sufficient, functional, and constructed in accordance with the bye-laws and the building permit. 4. The plaintiff was not liable to pay the penalty amount imposed for the delayed construction, as the delay was not attributable to the plaintiff. The plaintiff had obtained the necessary sanctions and approvals from the authorities, and the delay was caused due to factors beyond the plaintiff's control, such as the ban on high-rise buildings imposed by the Central Government. 5. The plaintiff was entitled to an interim mandatory injunction requiring the DDA to issue the OC and DESU to supply electricity to the two blocks, as the plaintiff had a strong prima facie case, the balance of convenience was in favor of the plaintiff, and irreparable loss and injury would be caused to the plaintiff if the injunction was not granted.
Final Decision: The Court dismissed the defendants' applications seeking rejection of the plaint and allowed the plaintiff's applications. The Court granted an interim mandatory injunction requiring the DDA to issue the OC and DESU to supply electricity to the two blocks, subject to the plaintiff depositing Rs. five lakhs as the tentative amount towards penalty with the DDA. The Court also directed the plaintiff not to allow the building to be occupied by anyone till the plaintiff obtains the OC in accordance with the order.
( 1 ) [ed. facts : In 1976 the plaintiff bought a large plot of land from DDA fur construction of Nehru Place Hotels. For more than 4 years its plans were not being passed on one excuse or the other and the pff. filed a W. P. in High Court which was allowed. The DDA appealed against the same which was dismissed and the D. B. decision is briefly reported at 1983. Rajdhani L. R. 662. The detailed facts mentioned therein are not being repeated and same may be referred to. After that decision pff. applied for sanction of his plans. After lengthy correspondence, frequent meetings and repeated objections the pff. was allowed to build 2 separate blocks for commercial use and the main building of the hotel. Pff. completed the 2 blocks and repeatedly asked high and low concerned to issue the occupancy certificates in respect of the same and on failure filed W. P. in which notice was duly issued to DDA. Afterword pff. withdrew the W. P. on the ground that it intended to file a civil suit and then filed this suit, Pff. applied for interim mandatory injunction that the DDA should issue O. C. and DESU should supply electricity etc. DDA raised a prelimi- nary objectiont hat the suit was not maintainable without statutory notice under D. D. Act, and that pff. was not entitled to interim mandatory injunction. ] After detailing above judgment is :
( 2 ) IN paras 158 to 161 of the plaint the plaintiff has referred to the factum of failing the W. P. claiming the same reliefs as in this suit and the show cause notice being issued in the W. P. and the counter affidavit being filed by defts. in the said W. P. and ultimately the W. P. petition being dismissed as withdrawn with liberty to file fresh legal proceedings by the pff. Now, if in law it could be said that service of the notice in the W. P. on the defts. is sufficient compliance with Section 53-B of the Act then, in my opinion, as facts have been given in the plaint with regard to the service of the notice in the W. P. it cannot be said that the plaint does not make necessary averments with regard to the notice. From the facts only a legal inference is to be drawn whether service of the notice in the writ petition does not amount to compliance of provisions of S. 53-B of the Act and what was required to be pleaded in the plaint were the facts and not the legal inferences flowing from the said facts.
( 3 ) THE contention of the learned counsel for the defts. that as the W. P. has been dismissed as withdrawn, so it should be inferred that notice, if any, also stood withdrawn is not tenable because the D. B. while dismissing the W. P. as withdrawn has given permission to the plaintiff to take resort to any other appropriate legal proceedings. So, there has been no unequivocal dismissal of the W. P. as withdrawn. In support of the contention that service of the notice in the W. P. amounts to a notice as required by Section 53-B of the Act, the learned counsel for the plaintiff has relied upon N. Parameswara vs. State AIR 1986 Madras 126. In the said case a W. P. was filed seeking the same reliefs as were sought in a suit filed subsequently. The W. P. was dismissed and the petitioner was granted three months time to seek the remedy by way of suit. The plaintiff filed the suit without serving any notice u/s. 80 of the CPC. The High Court held that the suit is not bad for want of notice presumably treating the notice serviced in the writ petition as sufficient compliance with the provisions of Section 80 CPC. The learned counsel for the deft. has tried to distinguish this judgment by arguing that in the said case the court had given three months time for instituting the civil suit and suit was instituted accordingly whereas in the present case, no time limit was fixed by the High Court while giving liberty to the plaintiff to institute any other appropriate legal proceedings. I do not think that the judgment can be distinguished on such a fact. After a/i the purpose of giving notice u/s.
