Case: Shiv Kumar Chadha Vs. Municipal Corporation of Delhi &amp; Others

These appeals have been filed against an order passed by the Delhi High Court directing the Municipal Corporation of Delhi (hereinafter referred to as the Corporation) to issue appropriate notices to the owners/occupiers/builders of the buildings where illegal constructions have been made. A liberty has been given to the owners/occupiers/builders to file fresh building plans with the Corporation in conformity with the existing bye-laws. The building plans as filed are to be examined in accordance with the law. The Corporation has been directed that if it finds that the constructions are beyond the compoundable limits, then to seal the same and to demolish thereafter.  2. The appellants have no grievance so far as the aforesaid part of the order is concerned. They have sought interference of this Court with the other part of the order, where it has been said that no civil suit will be entertained by any Court in Delhi in respect of any action taken or proposed to be taken by the Corporation with regard to the sealing and/or demolition of any building or any part thereof. Any person aggrieved by an order of sealing or demolition which is passed shall, however, have the right of filing an appeal to the Appellate Tribunal under the Municipal Act. The Appellate Tribunal is the only forum which has the jurisdiction to grant interim relief. The other part of the order in respect of which objection has been taken is where the Court has directed the Corporation to approach those Courts which have already issued injunction for variation and vacation of the injunction orders in the light of the said order.  3. Initially a writ application was filed in respect of some private dispute between two neighbours. In due course on the material produced by one party or the other it was treated as a Public Interest Litigation and by the impugned order the High Court has purported to find out a solution in respect of unauthorised constructions alleged to have been made by different owners/occupiers/builders in the different parts of the city without sanctioned plans or by making deviations from the plans which had been sanctioned. The Court has also purported to ensure that such unauthorised constructions are not perpetuated on the basis of interim orders of injunction passed by Civil Courts.  4. It cannot be disputed that by the impugned order the jurisdiction of any Court in Delhi to entertain any suit in connection with demolition of any part of any building which, according to the Corporation, is unauthorised and illegal has been ousted.  5. The Delhi Municipal Corporation Act, 1957 (hereinafter referred to as the Corporation Act) has made provisions for the constitution of the Corporation and has prescribed the procedure for election of the councillors, levy of taxes, sanitation and public health. Chapter XVI contains provisions regarding erection of buildings within the Corporation area. Section 331 defines the expression to erect a building. Section 332 says that no person shall erect or commence to erect any building or execute any of the works specified in Section 334 except with the previous sanction of the Commissioner. The relevant part of Section 343 is as follows:343. Order of demolition and stoppage of buildings and works in certain cases and appeal.  (1) - - - - - - -- - - - - - - -  (2) Any person aggrieved by an order of the Commissioner made under Sub-section (1) may prefer an appeal against the order to the Appellate Tribunal within the period specified in the order for the demolition of the erection or work to which it relates.  (3) Where an appeal is preferred under Sub-section (2) against an order of demolition, the Appellate Tribunal may, subject to the provisions of Sub-section (3) of Section 347-C, stay the enforcement of that order on such terms, if any, and for such period, as it may think fit:  Provided that where the erection of any building or execution of any work has not been completed at the time of the making of the order of demolition, no order staying the enforcement of the order of demolition shall be made by the Appellate Tribunal unless security, sufficient in the opinion of the said Tribunal has been given by the appellant for not proceeding with such erection or work pending the disposal of the appeal.  (4) No Court shall entertain any suit, application or order proceeding for injunction or other relief against the Commissioner to restrain him from taking any action or making any order in pursuance of the provisions of this section.  (5) Subject to an order made by the Administrator on appeal under section 347-D, every order made by the Appellate Tribunal on appeal under this Section, and subject to the orders of the Administrator and the Appellate Tribunal or appeal, the order of demolition made by the Commissioner shall be final and conclusive6. Section 344 vests power in the Commissioner to stop the construc- tion of the building where the erection of such building or execution of any work has been commenced or is being carried on either without sanction or contrary to sanction so granted or in contravention of any condition subject to which sanction has been accorded. Under Section 345A, the Commissioner at any time, before or after making an order of demolition under Section 343 or of the stoppage of the erection of any building or execution of any work under Section 343, can make an order directing the sealing of such erection or work or of the premises in which such erection or work is being carried or has been completed. A further appeal has been provided under Section 347-D to the Administrator against the order of the Appellate Tribunal. Section 347-E says:347E. Bar of jurisdiction of Courts––  (1) After the commencement of Section 7 of the Delhi Municipal Corporation (Amendment) Act, 1984, no Court shall entertain any suit, application or other proceedings in respect of any order or notice appealable under Section 343 or Section 347-B and no such order or notice shall be called in question otherwise then by preferring an appeal under these sections.  (2) Notwithstanding anything contained in Sub-section (1), every suit, application or other proceeding pending in any Court immediately before the commencement of Section (7) of the Delhi Municipal Corporation (Amendment) Act, 1984, in respect of any order or notice appealable under Section 343 or Section 347-B, shall continue to be dealt with and disposed of by that Court as if the said Section had not been brought into force7. Because of Sub-sections (4) and (5) of Section 343 and Section 347E aforesaid the stand of the Corporation is that the Courts have been debarred from entertaining suits, applications or proceedings for injunction, against any order or notice for demolition and the order of demolition passed by the Commissioner, subject to appeals before the Appellate Tribunal and Administrator shall be deemed to be final and conclusive.  8. In spite of several pronouncements of this Court during the last four decades, the question as to whether the jurisdiction of the Court has been statutorily barred in respect of suits in connection with the orders passed or proceedings initiated for demolition of constructions, which have been made without sanction or by deviating from the sanctioned plans, has to be answered.  9. Section 9 of the Code of Civil Procedure (hereinafter referred to as the Code) says that Courts shall have jurisdiction to try all suits of civil nature except suits of which their cognizance is either expressly or impliedly barred. According to the Corporation once the jurisdiction of the Court to try a suit in which the validity of any order passed under the pro- visions of the Corporation Act or the notice issued thereunder has been specifically barred and an internal remedy has been provided for redressal of the grievances of the persons concerned, there is no scope for Court to entertain a suit.

Reasoning: 27. According to us, it cannot be urged that the provisions of the Act have created any right or liability and for enforcement thereof remedy has been provided under the Act itself. The Act purports to regulate the common law right of the citizens to erect or construct buildings of their choice. This right existed since time immemorial. But with the urbanisa- tion and development of the concept of planned city, regulations, restrictions, on such common law right have been imposed. But as the provisions of the Act intend to regulate and restrict a common law right, and not any right or liability created under the Act itself, it cannot be said that the right and the remedy have been given uno flatu e.g. in the same breath. Most of the cases of this Court referred to above related to statutes creating rights or liabilities and providing remedies at the same time. As such the principles enunciated therein, shall not be fully applicable in the present case. In spite of the bar prescribed under Sub-sections (4) and (5) of Section 343 and Section 347E of the Corporation Act over the power of the Courts, under certain special circumstances, the Court can examine, whether the dispute falls with-in the ambit of the Act. But once the Court is satisfied that either the provisions of the Act are not applicable to the building in question or the basic procedural requirements which are vital in nature, have not been followed, it shall have jurisdiction, to enquire and investigate while protect- ing the common law rights of the citizens. Can a Court hold a suit to be not maintainable, although along with the plaint materials are produced to show that the building in question is not within the Corporation limits, or that the constructions were made prior to coming into force of the relevant provisions of the Act? We are conscious of the fact that persons who make unauthorised constructions by contravening and violating the building bye- laws or regulations often run to Courts, with pleas mentioned above, specially that no notice was issued or served on them, before the Corporation has ordered the demolition of the construction28. It is well-known that in most of the cities building regulations and bye-laws have been framed, still it has been discovered that construc- tions have been made without any sanction or in contravention of the sanctioned plan, and such constructions have continued without any interven- tion. There cannot be two opinions that the regulations and bye-laws in respect of buildings, are meant to serve the public interest. But at the same time it cannot be held that in all circumstances, the authorities entrusted with the demolition of unauthorised constructions, have exclusive power, to the absolute exclusion of the power of the Court. In some special cases where jurisdictional error on the part of the Corporation is established, a suit shall be maintainable. According to us,(1) The Court should not ordinarily entertain a suit in connection with the proceedings initiated for demolition, by the Commis- sioner, 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 questioing the validity of an order passed under Section 343 of the Act, only if the Court is of prima facie 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 Act29. It need not be said that primary object of filing a suit challenging the validity of the order of demolition is to restrain such demolition with the intervention of the Court. In such a suit the plaintiff is more interested in getting an order of interim injunction. It has been pointed out repeatedly that a party is not entitled to an order of injunction as a matter of right or course. Grant of injunction is within the discretion of the Court and such discretion is to be exercised in favour of the plaintiff only if it is proved to the satisfaction of the Court that unless the defendant is restrained by an order of injunction, an irreparable loss or damage will be caused to the plaintiff during the pendency of the suit. The purpose of temporary injunction is, thus, to maintain the status quo. The Court grants such relief according to the legal principles of debite justitiae. Before any such order is passed the Court must be satisfied that a strong prima facie case has been made out by the plaintiff including on the question of maintainability of the suit and the balance of convenience is in his favour and refusal of injunction would cause irreparable injury to him30. Under the changed circumstance with so many cases pending in Courts, once an interim order of injunction is passed, in many cases, such interim orders continue for months; if not for years. At final hearing while vacating such interim orders of injunction in many cases, it has been discovered that while protecting the plaintiffs from suffering the alleged injury, more serious injury has been caused to the defendants due to continuance of interim orders of injunction without final hearing. It is a matter of common knowledge that on many occasions even public interest also suffers in view of such interim orders of injunction, because persons in whose favour such orders are passed are interested in perpetuating the contraventions made by them by delaying the final disposal of such applica- tions. The Court should be always willing to extend its hand to protect a citizen who is being wronged or is being deprived of a property without any authority in law or without following the procedure which are fundamental and vital in nature. But at the same time the judicial proceedings cannot be used to protect or to perpetuate a wrong committed by a person who approaches the Court31. Power to grant injunction is an extraordinary power vested in the Court to be exercised taking into consideration the facts and circum- stances of a particular case. The Courts have to be more cautious when the said power is being exercised without notice or hearing the party who is to be affected by the order so passed. That is why Rule 3 of Order 39 of the Code requires that in all cases the Court shall, before grant of an injunction, direct notice of the application to be given to the opposite party, except where it appears that object of granting injunction itself would be defeated by delay. By the Civil Procedure Code (Amendment) Act, 1976, a proviso has been added to the said rule saying that where it is proposed to grant an injunction without giving notice of the application to the opposite party, the Court shall record the reasons for its opinion that the object of grating the injunction would be defeated by delay32. It has come to our notice that in spite of the aforesaid statutory requirement, the Courts have been passing orders of injunction before issuance of notices or hearing the parties against whom such orders are to operate without recording the reasons for passing such orders. It is said that if the reasons for grant of injunction are mentioned, a grievance can be made by the other side that Court has prejudged the issues involved in the suit. According to us, this is a misconception about the nature and the scope of interim orders. It need not be pointed out that any opinion expressed in connection with an interlocutory application has no bearing and shall not affect any party, at the stage of the final adjudication. Apart from that now in view of the proviso to Rule 3 aforesaid, there is no scope for any argument. When the statute itself requires reasons to be recorded, the Court cannot ignore that requirement by saying that if reasons are recorded, it may amount to expressing an opinion in favour of the plaintiff before hearing the defendant33. The imperative nature of the proviso has to be judged in the context of Rule 3 of Order 39 of the Code. Before the proviso aforesaid was introduced, Rule 3 said the Court shall in all cases, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite party. The proviso was introduced to provide a condition, where Court proposes to giant an injunction without giving notice of the application to the opposite parrty, being of the opinion that the object of granting injunction itself shall be defeated by delay. The condition so introduced is that the Court shall record the reasons why an ex parte order of injunction was being passed in the facts and circumstances of a particular case. In this background, the requirement for recording the reasons for grant of ex parte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statuate or under the common law, must be informed why instead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party who invokes the jurisdiction of the Court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the Court about the gravity of the situation and Court has to consider briefly these factors in the ex parte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the Court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non- compliance thereof will not vitiate the order so passed. But same cannot be said in respect of the proviso to Rule 3 of Order 39. The Parliament has prescribed a particular procedure for passing of an order of injunction without notice to the other side, under exceptional circumstances. Such ex parte orders have far reaching effect, as such a condition has been imposed that Court must record reasons before passing such order. If it is held that the compliance of the proviso aforesaid is optional and not obli- gatory, then the introduction of the proviso by the Parliament shall be a futile exercise and that part of Rule 3 will be a surplusage for all practical purpose. Proviso to Rule 3 of Order 39 of the Code, attracts the principle, that if a statute requires a thing to be done in a particular manner, it should be done in that manner or not all. This principle was approved and accepted in well-known cases of Taylor v. Taylor, (1875) 1 Ch.D. 426, Nazir Ahmed v. Emperor, AIR 1936 PC 253 . This Court has also expressed the same view in respect of procedural requirement of the Bombay Tenancy and Agricultural Lands Act in the case of Ramchandra Keshav Adke v. Govind Joti Chavare, AIR 1975 SC 915 34. As such whenever a Court considers it necessary in the facts and circumstances of a particular case to pass an order of injunction without notice to other side, it must record the reasons for doing so and should take into consideration, while passing an order of injunction, all relevant factors, including as to how the object of granting injunction itself shall be defeated if an ex parte order is not passed. But any such ex parte order should be in force up to a particular date before which the plaintiff should be required to serve the notice on the defendant concerned. In the Supreme Court Practice 1993, Vol. 1, at page 514, reference has been made to the views of the English Courts saying:Ex parte injunctions are for cases of real urgency where there has been a true impossibility of giving notice of motion.An ex parte injunction should generally be until a certain day, usually the next motion day