TaxTMI 
TaxTMI 
1995 (5) TMI 283
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....ssues arising for decision have far reaching implications and consequences of significance for the public at large. (3) On 19.11.1994, Anz Grindlays Bank, (hereinafter referred to as the Bank, for short) has filed suit No. 2581/94 accompanied by an urgent application seeking ad interim injunction. It was a non working Saturday. Counsel for the plaintiff made a special mention, impressing upon the court the urgency involved, highlighting the irreparable injury which the plaintiff would suffer by sealing and/or demolition of the premises in its occupation, persuading the court to pass an exparte order of interim injunction at least for four days, the date of hearing after notice to the opposite party having been appointed as 23.11.1994. (4) The Commissioner MCD, Smt .Usha Devi and M/S Aggarwal Developers Pvt Ltd the three have been imploded as defendants 1, 2 and 3 respectively. The suit premises are situated on plot No. M-l, Ndse II. There is a building with a basement and two and a half floors above. If the basement is to be counted as a floor, there are three-and-a-half floors in all. (5) According to the plaintiff bank the ground floor and the basement of the building ha....
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....ntiff has not violated any of the provisions of the DMC Act 1957. (10) The defendants No.2 and 3 are yet to make an appearance in the case. (11) The defendant No.1 has filed its reply to the plaintiff's application under Order 39 Rules 1-2 CPC. All the material averments have been denied. It is contended that the suit does not lie and that the plaintiff does not deserve being allowed any interim relief. (12) The entitlement of the plaintiff bank to use the tenancy premises for commercial purpose has been seriously disputed. It has been denied that the premises have been in commercial use ever since 1961-62 not to talk of their having been in such use since before 1961-62. It is stated that the building plan in respect of the premises in question was sanctioned by MCD vide No. 55/A/HQ/87/171/AE(B)/HQ dated 22.5.1987 for residential purpose. Again the revised building plans were sanctioned vide No. 794/B/HQ/90/74/AE-1 dated 30.1.1991 for residential purpose and even the completion certificate had been. issued permitting only residential use of the building. However, after obtaining the completion certificate the building owner Smt Usha Pathak carried out unauthorised con....
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....iately a reference deserves to be made to an affidavit dated 24.1.1995 sworn in by Mr J.M. Mehta, Deputy Assessor &. Collector South Zone MCD, which affidavit proposes to expose and demonstrate the falsity of the entry in the Inspection . Book of the property tax department of MCD, heavily relied on by the plaintiff Bank. (18) On behalf of the plaintiff certified copy of an entry in the Inspection Book of the property tax department of MCD indicating an inspection made on 29.1.1962 of the building in question i.e. M-l, Ndse Ii has been filed which shows the property being then used for shops and godowns. The Deputy Assessor &. Collector alleges this inspection report to be false and fabricated and 'planted' in the record in collusion with some one of the subordinate municipal staff. He has scrutinised all the relevant record and brought out and put forth for the consideration of the court the following circumstances in his affidavit : A) For the first time the construction plans were got sanctioned on 30.3.65 prior to which this was a vacant plot of land. Thus, there being construction prior to 30.3.65 is wholly impossible. B) That the entry of plot No,....
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....th attached WC. (19) Yet another affidavit sworn in by Mr.RBS Bansal, Zonal Engineer South Zone MCD has been filed. He has perused the entire file relating to the sanction of building plans in regard to plot No. M-l which is the suit property. He states that there was no building existing on the plot in question prior to 1965. For the first time the building, plans were sanctioned on 30.3.65 and sanction conveyed to the owners on 8.4.65. Pursuant to the sanctioned plan of the building only a garage and a servant quarter were constructed. Remaining plan had lapsed. On 29.4.68 a fresh application for sanction of building plans was received and sanctioned on 14.5.68. Against it only half of the ground floor was constructed. The remaining plans lapsed and again got re-sanctioned in 1971. Once again the additions/alterations were sanctioned in 1987 and then in 1991. Sanctions were only for residential purpose since the land user in the area was for residence only. Prior to 1965 no construction existed on the plot in question. (20) As to reliance by the plaintiff on a certain entry in the house tax record of 1961-62, it is submitted that senior officer Narbada House, Narbada Projec....
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....suit is founded on an agreement entered into by the plaintiffs in the year 1990 with Smt Usha Pathak the owner, for development of the suit property pursuant whereto they have carried out additions/alterations in the suit property in accordance with the sanction conveyed to Smt Usha Pathak by the M.C.D. through its letter dated 30.1.1991. The plaintiffs claim to have come into occupation of part of the premises on 1st and 2nd floors. Delhi is governed by two notified Master Plans - the earlier one being of 1962 and the present one being Master Plan-2000. The area of the suit plot is 981 sq mts. It falls in the category of 'above 500 to 1000 sq mts'. The earlier Master Plan of 1962 provided entitlement to this category of plots for a maximum ground coverage of 40%, Far 100, number of DUs 5 and maximum height of 11 mts. The new Master Plan- 2000 further provides that in case of residential plots above 250 sq mts situated ' on road with width of 24 mts and above and where already three stories and a barsati was permitted ( as per density calculated in the sanctioned lay out), (a) Far shall be increased by maximum ground floor coverage (b) maximum height shall be 14 mts and....
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....ave been branded as unsustainable. (27) It may be noted clearly that Smt Usha Pathak, the real owner and builder of the property does. not figure as' a plaintiff in any of the two suits. She is the appellant comfortably prosecuting her appeal before the Appellate Tribunal MCD, under Section 343(2)/347B of the DMC Act. Thus, on the impugned action initiated under Section 343/344 of the MCD Act there is a three-pronged defensive attack-one by the owner, one by the builder and one by the tenant. (28) It may also be stated that during the course of hearing the learned counsel for the plaintiff in suit No. 2581/94 has certainly made a departure from the scope of the suit as framed and raised a few contentions which are not set out in the pleadings. I may place on record that during the course of hearing which continued day after day, documents after documents were taken out by the learned counsel from his brief and handed over to the court and the counsel for the MCD. At the close of the hearing a consolidated list of such documents has been filed. In a civil suit parties are bound by their pleadings. The court would' not entertain any plea beyond those raised in the plead....
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....cle 14 of the Constitution prima facie? (6) Whether the plaintiffs are guilty of having made material concealment of facts? If yes, whether such conduct of the plaintiffs as disclosed by the facts found prima facie is sufficient to disentitle the plaintiffs from the discretionary relief of injunction? (7) Whether power to demolish conferred by Sections 343 DMC Act is discretionary? Whether the impugned action of demolition without exercising discretion to demolish or not to demolish is arbitrary? (8) Whether the building in suit is being treated by authorities with hostile discrimination? (9) Whether the plaintiffs can take protection behind the doctrine of Promissory Estoppel and Legitimate Expectations? QUESTION No.1: Whether the suit property was in commercial use since before 1962? (31) As already noticed, the whole edifice of the Bank's case is founded on the inspection report dated 29.1.1962 (referred to in para 6.1.1 above). Suffice it to say that the two affidavits-one of Shri J.M. Mehta, Deputy Assessor & Collector, South Zone (para 6.1. above) and of Shri R.B.S. Bansal, Zonal Engineer South Zone M.C.E. (para 6.2 above) -....
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.... not permitted by the Building Bye Laws. (36) A photo copy of the completion certificate dated 8.2.94 in respect of the suit plot has been brought on record by the MCD. It shows excess coverage beyond the permissible limits but within ten percent compoundable limits having already been directed to be compounded subject to payment of the compounding fee. The building as it exists today has deviations beyond the compoundable limits. QUESTION No.3: Who is entitled to notice u/s 343 and 344 of DMC Act? (37) Whether a tenant or any person other than the owner is entitled to a notice under Section 343/344 of the DMC Act? (38) The provisions contained in Sections 343 to 347(B) and 347(E) of The Delhi Municipal Corporation Act, 1957 are relevant. (39) Under Section 344, if any unauthorized construction commences, the Commissioner may require 'the person at whose instance the building or the work has been commenced or is being carried on' to stop the same forthwith. (40) Under Section 343 the Commissioner may make an order directing such unauthorized erection or work shall be demolished by 'the person at whose instance the erection or work has been commen....
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....person 'at whose instance erection or work has been commenced or is being carried on or has been completed' having been conferred with the following rights: (1) A direction by the Commissioner to demolish, such erection or work has to be made against such person if the work is in progress or has been completed. (2) A direction to stop the erection or work, if the same has not been completed, has to be made against such person. (3) He is entitled to a reasonable opportunity to show cause why such order shall not be made. (4) He is entitled to prefer an appeal to the Appellate Tribunal against the order. IN the first proviso to sub section (1) the words "the person" mean the person at whose instance the erection or work has been commenced or is being carried on or has been completed". (48) The owner might have inducted a tenant in the premises after the completion of the impugned erection or work. It may be that the owner has inducted the tenant and thereafter the erection or work is done on the premises. (49) The former case presents no difficulty because the work or erection having been done by the owner he only would be entitled....
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....n occupation of the tenant then the demolition is sure, to effect his peaceful possession and enjoyment over the properly. He would be a person aggrieved by an order of the Commissioner, though made against the owner/landlord. Such a tenant though not entitled to a notice and though the order may not be directed against him still would have right to prefer an appeal against the order for demolition, he being a person aggrieved by the order. Of course, during the hearing of the appeal he cannot claim any right on a pedestal higher than that of the owner/landlord under whom he claims and who has inducted him into the properly. (53) It is clear that the plaintiff in suit No. 2581/94 being a tenant and the plaintiff in suit No. 106/95 being a builder, none was entitled to a notice under sections 343/344 of DMC Act. QUESTION No.3A: Whether the notice under Section 343/344 is invalid for not having been issued by the Commissioner. (54) Though Sections 343/344 of the DMC Act authorise the Commissioner to take an action under the said provision, notice in the case at hand has been signed by the Zonal Engineer buildings, South Zone. Section 491 of the Act permits the powers o....
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....Commissioner, in terms of Section 343(1) of the Corporation Act. The Court should direct the persons aggrieved to pursue the remedy before the appellate tribunal and then before the administrator in accordance with the provisions of the said Act. (2) The court should entertain a suit questioning the validity of an order passed under Section 343 of the Act, only if the Court is of prima fade opinion that the order is nullity in the eyes of law because of any "jurisdictional error" in exercise of the power by the Commissioner or that the order is outside the Act." (60) None of the two cases at hand is one where the plaint alleges the suit property to be out of Corporation limits or where any jurisdictional error on the part of Corporation is established even prima facie. The construction in question was not made prior to coming into force of provisions of law violation whereof is in question. (61) It has already been held that the two plaintiffs being tenant and builder respectively have the remedy of appeal available to them. (62) There is no reason to make a departure from ordinary rule laid down by their Lordships in Shiv Kumar Chadha's case. The plaintiffs m....
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....vides for the development of Delhi. The object as provided by the preamble and Section 6 is to promote and secure the planned development of Delhi. Master Plan is drawn up under Section 7 after carrying out a civic survey of Delhi. Section 8 provides for zonal development plan. Such plans are approved by the Central Government under Section 9. Date of operation is provided by Section 11. The mandatory provisions contained in Section 14 prohibit user of any land or building otherwise than in conformity with such plan. Then the previous user and its continuance, though inconsistent with the plan, is excepted. Section 29 makes contravention of the plan a punishable offence. Section 30 imposes penalty of demolition of contravention. All these provisions highlight the importance and utility of the Master Plan for the planned development of Delhi, the object behind and the mandatory nature of the provisions. (66) Master Plan is prepared in exercise of the statutory power conferred by the Delhi Development Act. It is a part of the legislative activity. The preamble and several provisions of the Delhi Development Act, especially Sections 6,7,9 to 12, 14 and 29 as also the provisions of ....
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....t permit such number of floors. If an extra floor is permitted in every house it would only lead to chaos and a total collapse of civic amenities worsening the quality of life in the city. (69) The law of zoning and planning is a condition of statutory, municipal and administrative land use law. (American Jurisprudence 2d Vol 83 para 1) The legislative judgment in a zoning matter may not be annulled simply because a court disagrees with the wisdom of such judgment. ( para 48, page 68, above). (70) Very recently their Lordship of the Supreme have held in Virender Gaur & Ors vs State of Haryana & Ors (1995)2SCC577 : "The word environment is of broad spectrum which brings within its ambit hygienic atmosphere and ecological balance. It is, Therefore, not only the duty of the State but also the duty of every citizen to maintain hygienic environment. The State, in particular has duty in that behalf and to shed its extravagant unbridled sovereign power and to forge in its policy to maintain ecological balance and hygienic environment. Article 21 protects right to life as a fundamental right. Enjoyment of life and its attainment including their right to life with human....
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.... with a new vision on science of zoning and planning guided by drastic change in foundational data figures. A classification by reference to a particular cutoff date can be reasonable ( See- Uoi vs M/S Parmeshwar Metal Works 1978(2)ELT436(SC) , Indian Ex- services League vs Uoi [1991]1SCR158 , State of Rajasthan vs Rajasthan Pensioner Samaj AIR1991SC1743 , State of W.B. vs Ratan Behari Dey (1993)IILLJ741SC , Mafatlal Group Staff Association vs RCPF (1995) 4 SCC 58 (74) While interpreting municipal legislation framed in public interest, a strict constructional approach must be adopted. (75) The learned counsel for the defendant has rightly submitted that if the plaintiff may complain of inequality in treatment and hostile discrimination between the two Master Plans then every one shall have to be restricted to 2-1/2 floors rather then permitting violation of law by all. (76) A perusal of the Master Plan 2000 shows that the same has been notified by the Central Govt after considering the objections and suggestions. The Preamble to the Master Plan suggests that it is totally public purpose oriented based on historic facts and guided by expert opinion. (77) For the foregoin....
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....d that the maxim he who seeks equity must do equity applies to a plaintiff seeking an injunction, who must come with clean hands. The plaintiffs act and dealings must have been fair and honest and free from taint or fraud or illegality. Unfairness or inequitable manner will disentitle him from relief. (83) The principle has been followed by this High Court in several subsequent decisions. (84) In Seemax Construction (P) Ltd vs. State Bank Of India Air 1992 Delhi 197 the Court has expected the plaintiff to make full, complete and honest disclosure and avoid suppression of material facts failing which the court would dismiss the application without going into merits. (85) In Anand Saroop vs. M.C.D 36(1988) DLT304, deliberate attempt on the part of the plaintiff to mislead the court was held enough to disentitle the plaintiff to any interim relief of injunction. (86) Udey Chand Vs. Shanker Lal [1978]2SCR809, Charanji Lal Vs. Financial Commissioner, Haryana Air 1978 P&h 326, are the cases where the Courts were exercising jurisdiction under either Article 136 or Articles 226, 227 of the Constitution. It has been held that untrue or misleading statement or suppression of mate....
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....f the stay order issued by Appellate Tribunal being in operation would have been disclosed then the court would not have been persuaded to entertain the suit on a non-working day and grant interim relief ex parte to the plaintiff. The plaintiff had projected the urgency by pointing out that the building was going to be sealed and demolished resulting in irreparable injury to the plaintiff. There was no question of demolition when the stay order made by the appellate authority was in operation. Learned counsel for the defendant has stated that there was no decision taken as yet to seal the premises and no order made till this day for sealing the building or any part thereof. (91) The plaintiff has also made a material concealment of completion certificate. If only the completion certificate would have been placed before the court, the court would have learnt that the building was residential. The court could have also satisfied itself if there were any violations or breaches committed after issuance of completion certificate. (92) The plaintiff has stated that there was no unauthorised construction in the premises requiring demolition and that no provision of DMC Act was viola....
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....cised its discretion either way? (98) Mr Lekhi Sr Advocate appearing for the plaintiff heavily relied on Corporation of 'Calcutta vs Mool Chand Aggarwala, 1956CriLJ285 , to support his submissions that power to demolish conferred by Section 343 of the DMC Act was not meant to be arbitrarily exercised, the use of the word "may" confers a discretion on the Commissioner to demolish or not to demolish an unauthorised construction. In the said case Section 363 of the Calcutta Municipal Act conferred discretion on the Judicial Magistrate by providing that the Magistrate may pass an order for demolition of the building, after convicting a person for construction without permission. Their I Lordships agreed with the contention that a building shown to have been erected or completed without permission was not to be demolished as a matter of course; the Magistrate had a discretion in directing or not a demolition. Mr Jaitley, senior advocate appearing for M.C.D. has rightly distinguished the Corporation of Calcutta's case by submitting that it was a case of trivial unauthorised activity. He further submitted that in so far as Delhi is concerned, Building Bye Laws, 1983 are applica....
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....ving in the neighborhood. In other words, such a course of action would involve sanctioning inflicting of injury on third parties which could never have been contemplated by the statute." (101) It is not necessary to further dwell upon this aspect in view of what has been stated in the preceding para 61 above. (102) Question No. 8: The charge of hostile discrimination, qua the suit building? The suit building has' been singled out for demolition though the other properties in the same locality were being subjected to commercial use and were not proceeded against, was summarily contended and needs a summary disposal. Learned counsel for the defendant DMC has pointed out that the action was initiated against all the buildings of the locality which were having unauthorized constructions/ deviations and / or unauthorized users subject to permissible compounding. However, in most of the cases the demolition was stayed by different judicial fora. The learned counsel for MCD emphatically stated that not a single violation of law was being spared and if there be some lapse at the lower level the authorities would immediately take steps if any lapse was brought to their notice. ....
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....s but they may not succeed in doing so for reasons more than one and they know well this truth while making such promises and the electorate to which such promises are made also knows it. (109) A promise by a political party is not a promise by State. The BJP, as alleged by the plaintiff, had promised in its election manifesto that it would permit one extra floor and additional 25% coverage in the pre-existing buildings and regularise all the illegal, colonies. Both these actions were not permitted by the laws in force on the date of the election manifesto. Thus, it was the promise to do a thing which was illegal on the date of the promise. It was also against public policy to materialise such promise. A plea of promissory estoppel cannot be founded on a promise to legislate made by a political party. (110) A legitimate expectation to be so, has to be legitimate and not illegitimate one. (111) Laamrit Bansapati Co. Ltd vs. State of Punjab 1992(59) ELT 13 (SC), the State Govt in a brochure issued promised refund of sales tax as incentive and concession to industries: The industrialists acted on such promise but the State could not honor it. Their Lordships held: - ....
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....0., page 660) " INTERLOCUTORY Injunctions. GENERAL principles. Though the proverbial delays of Lord Eldon's chancellorship no longer exist, there is still an inevitable lapse of time between the commencement of an action and the trial. The injury being suffered by the plaintiff may be such that it would be unjust to make him wait until the trial for relief. In such cases the court may grant an injunction operating until the trial or further order, thereby maintaining the status quo and " facilitating the administration of justice at the trial; and a plaintiff who has been refused an injunction until trial may, if he wishes to appeal against the refusal, be granted an injunction pending the hearing of his appeal. In a proper case an interlocutory injunction may be granted even through it gives the plaintiff the whole of the relief for which he would ask at the trial. STRENGTH of plaintiff's case. The application for an interlocutory injunction must normally be heard on the basis of affidavit evidence, without cross-examination. This gives rise to a major difficulty in deciding whether or not the injunction ought to be granted, for at this stage dis....
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....decision of sealing has yet been taken. (121) There is absolutely no material brought on record to hold, even prima facie, the defendant DMC's action having been initiated for extraneous reasons and grounds not germane to the exercise of power conferred by the relevant provisions. None of the plaintiffs has alleged any malice against any official of the Corporation. (122) Prima facie the civil suits are not maintainable. Alternative remedy of appeal is available to the plaintiffs. (123) THOUGHTS- Et Seq And Et Sic De Similibus :- These two cases provide an opportunity for placing on record a few random thoughts. Courts of law are frequently faced with such suits wherein the builder or owner or person in occupation of building rushes to the court pressing for the grant of ex parte injunction submitting that unless protected by the court his valuable property would be demolished and if the injury has already been done, it would never be undone even if the plaintiff may finally succeed in the suit. Such suits being filed are not uncommon and are mentioned for hearing during the rush of already heavily listed matters and even on holidays. Situations, sometimes as they are ....
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....ary injunctions in such matters would do well- (A) to see whether the plaint in the suit was accompanied by following documents: - (I) duly sanctioned building plan; (II) building completion certificate; (III) existing site plan of the suit property. (B) to see if the application for injunction contains a categoric statement on affidavit of the applicant that the existing construction and the use to which the property was being subjected was not inconsistent with the Master Plan of Delhi and any other law applicable to such locality and/or building, and that there has been no unauthorized construction or user violating the sanctioned plan/the Master Plan. (C) if the court be inclined to grant an ex prate injunction restraining sealing demolition of the building, to put the plaintiff also on terms asking it to undertake that during the period of operation of injunction the plaintiff shall also maintain the status quo and shall not proceed with further construction, nor create third party interests. This would obviate the possibility of the plaintiff, completing its construction (if found to be illegal or unauthorized after hearin....