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IN THE HIGH COURT OF DELHI
Rajiv Sahai Endlaw, J.
Vinod Kumar Kedia – Appellant
Versus
Municipal Corporation of Delhi and Others – Respondents
Civil Suit (OS) No. 1279, 1443 of 2009
Decided On : 21-05-2019
MCD - Recovery of Damages - DMC Act, 1957 - Section 477/478, Order VII Rule 11(a) CPC, Order II Rule 2, Section 10 of the CPC - [Section 477/478 of DMC Act, 1957, Order VII Rule 11(a) CPC, Order II Rule 2, Section 10 of the CPC] - The court dismissed the suits for recovery of damages against the Municipal Corporation of Delhi (MCD) and its officials, as the construction which was demolished was found to be unauthorised and contrary to law, thereby justifying the demolition action. The court held that a mere violation of procedure would not entitle the plaintiff to damages and that there can be no loss on account of disappearance of what the plaintiff was not entitled to have or what the plaintiff had acquired illegally. The court referred to legal principles of public policy and held that a party committing a wrong cannot be permitted to take the benefit of his own wrong.
Fact of the Case:
The plaintiff filed suits against the Municipal Corporation of Delhi (MCD) and its officials for recovery of damages for the demolition of a property. The plaintiff claimed damages for the loss incurred due to the demolition action taken by the defendant MCD without following the prescribed procedure.
Finding of the Court:
The court found that the construction which was demolished was unauthorised and contrary to law, justifying the demolition action. The court held that a mere violation of procedure would not entitle the plaintiff to damages and that there can be no loss on account of disappearance of what the plaintiff was not entitled to have or what the plaintiff had acquired illegally.
Issues: The issues included whether the suits were barred under Section 477/478 of DMC Act, 1957, liable to be rejected under Order VII Rule 11(a) CPC, and whether the plaintiff was entitled to a decree of damages and compensation.
Ratio Decidendi: The court held that a party committing a wrong cannot be permitted to take the benefit of his own wrong. It also emphasized that a mere violation of procedure would not entitle the plaintiff to damages.
Final Decision: The suits were dismissed, and costs were awarded to the defendant MCD against the plaintiff.
JUDGMENT :
Rajiv Sahai Endlaw, J.
1. The plaintiff has instituted CS (OS) No. 1279/2009 against the Municipal Corporation of Delhi (MCD) and its officials for recovery of Rs. 18,00,000/- along with interest, pleading that (i) the plaintiff is the owner of Property No. 5766, Jogiwara, Nai Sarak, Delhi having purchased the same vide Sale Deed dated 19th November, 1998; (ii) the property was an old property constructed in 1950 and was in occupation of the tenants from whom the plaintiff got the property vacated; (iii) because the property was in urgent need of repairs, the plaintiff, to avoid any mishap and to render the property usable, submitted an application dated 2nd May, 2008 to the defendant MCD intimating his intention to carry out repairs therein and called upon the officials of the defendant MCD to visit and inspect the property; (iv) the plaintiff, on visiting the office of the defendant MCD was informed that he was entitled to carry out the works permitted in Clause 6.4.1 of the Unified Building Bye-Laws, 1983 as applicable to Delhi, without seeking any permission; (v) the plaintiff accordingly commenced the work of repairs; (vi) the officials of the defendant MCD visited the property on 30th May, 2018 and without serving any show-cause notice or demolition order punctured/demolished the roof of the ground, first and second floors of the property; (vii) the defendant MCD and its officials, in doing so acted illegally, in violation of the law; (viii) the plaintiff suffered a loss of Rs. 12,00,000/- towards cost of re-laying of the roofs of the ground, first and second floors and ancillary repairs and suffered mental agony, torture and humiliation valued at Rs .6,00,000/- and (ix) the plaintiff is also entitled to interest on the said amount at 18% per annum. Hence the suit for recovery of Rs. 18,00,000/- with interest at 18% per annum for the period w.e.f. 31st May, 2008 to 14th May, 2009.
2. CS (OS) No. 1443/2009 has been filed by the plaintiff against the MCD and its officials for recovery of damages in the sum of Rs. 6,37,50,000/- for the period w.e.f. 31st May, 2008 to 30th July, 2009 along with future damages w.e.f. 31st July, 2009 at Rs. 1,50,000/- per day, till the property is restored by the defendant MCD in the position in which it was prior to 30th May, 2008. The plaintiff, in the plaint in the said suit has additionally pleaded, that (i) though the plaintiff in the earlier suit had sought recovery of Rs. 12,00,000/- towards cost of re-laying of the roofs but had not undertaken the said work as no permission therefor had been granted; (ii) however vide order dated 6th August, 2008 of this Court in W.P. (C) No. 4472/2008, the plaintiff had been permitted to put a temporary fibre glass covering where the roof was punctured, to avoid seepage of water in other parts of the property; however the plaintiff did not put the said fibre glass covering also because the same was not enough to save the property from being damaged from rains, storm etc. and (iii) a sum of Rs. 6,37,50,000 /- is due from the defendant MCD to the plaintiff as damages/compensation for depriving the plaintiff of the use and enjoyment of the property from 31st May, 2008 to 30th July, 2009, besides the amount of Rs. 18,00,000/- claimed in CS (OS) 1279/2009; the plaintiff is also entitled to a sum of Rs. 1,50,000/- from 31st July, 2009 till the property is restored to original position.
3. Needless to state that the defendant MCD and its officials contested both the suits. However the need to detail the defence of the defendants is not felt owing to the manner in which the hearing has taken place.
4. Suffice it is to state that on the pleadings of the parties in CS (OS) No. 1279/2009, on 11th August, 2010 the following issues were framed:
"(i) Whether the suit is barred under Section 477/478 of DMC Act, 1957? OPD
(ii) Whether the suit is liable to be rejected under Order VII Rule 11(a) CPC? OPD
(iii) Whether the present suit is barred under Order II Rule
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