Point of Law: Civil Law - Unauthorized construction - Jurisdiction of Court - Empowering courts to summarily dismiss a suit - When court had no jurisdiction to try case, ad-interim injunction cannot be granted.

JUDGMENT :

[Via Video Conferencing]

CM (M) 409/2021 and CM APPLs. 19086/2021 (by the petitioner u/S 151 CPC for stay), 19087/2021 (by the petitioner u/S 151 CPC for exemption from filing complete Trial Court record)

1. This petition has been filed under Article 227 of the Constitution of India for setting aside and quashing the order dated 8th January, 2021 passed by the learned ACJ in Suit No. CS SCJ 33/2021 and order dated 24th March, 2021 passed by the learned ADJ-02 in MCA DJ No.04/2021. The petitioner is the plaintiff before the learned Trial Court and the appellant before the learned ADJ.

2. The facts relevant for the disposal of the present petition briefly stated are, that the petitioner is the owner in possession of Flat No.2206 in Pocket 2, Sector C, Vasant Kunj, New Delhi, which was purchased by his father. The property has since been converted into a free hold flat which was originally built by the Delhi Development Authority (“DDA”, for short). The petitioner claims that he was carrying out some internal and external repairs of this flat when, out of sheer jealously and with ulterior motives, in order to harass and intimidate the petitioner, his neighbour Shri Dasrath Singh Tanwar filed a false and frivolous complaint with the Sub-Divisional Magistrate alleging unauthorised construction was being carried out by the petitioner in the suit property. The said Shri Dasrath Singh Tanwar has also filed a Civil Suit No.1366/2019 presently pending before the Patiala House Courts, wherein he has sought, among other reliefs, direction to the Commissioner, South Delhi Municipal Corporation (“SDMC”, for short) to remove or demolish the alleged construction carried out by the petitioner. The petitioner claims to have filed an application under Order VII Rule 11 of the Code of Civil Procedure, 1908 (“CPC”, for short) in that Suit, which is also pending adjudication.

3. The grievance of the petitioner, which led to the filing of a Suit by him, was the issuance of two Show-Cause Notices under the Delhi Municipal Corporation Act, 1957, (“DMC Act”, for short) on 14th December, 2019 and 17th January, 2020 alleging deviations and excess coverage from the “Standard Plan of the DDA”. The request of the petitioner for supply of the said Standard Plan of DDA was not accepted and as a result, he was unable to file proper replies to the said Notices. It is his further case that another Show-Cause Notice under Sections 343/344 of the DMC Act was issued to him on 30th September, 2020, during the Covid-19 pandemic to which the petitioner submitted a reply. However, the respondent/SDMC passed the impugned order dated 15th December, 2020 directing the demolition of alleged unauthorized construction.

4. In his suit, the petitioner had sought ex parte injunction against the respondent/SDMC to restrain them from carrying out the demolition at the suit premises as ordered by it. The learned Trial Court vide the impugned order dated 8th January, 2021 found no prima facie case in favour of the petitioner and dismissed the application refusing to restrain the respondent/SDMC from demolishing the construction carried out by the petitioner at the suit premises. Aggrieved, the petitioner then approached the Appellate Court, which too dismissed his appeal vide the impugned judgement dated 24th March, 2021.

5. Mr. Anil K. Aggarwal, learned counsel for the petitioner, submitted that both the courts below have overlooked the Supreme Court’s decisions in M.C. Mehta vs. UOI & Ors., (2005) 2 SCC 186 and in Shiv Kumar Chadha vs. MCD & Ors., (1993) 3 SSC 161 and had therefore, committed grave errors. Before this Court, it was submitted that a Civil Suit was maintainable against demolition notices, when there was a jurisdictional error. This had occurred, according to the learned counsel, as the Commissioner had exercised power which was in contravention of the Constitution of India particularly, after Part IX-A had been inserted. According to the learned counsel, any ac