Вы находитесь на странице: 1из 8

Paramjit Kaur And Anr. vs Municipal Corporation Of Delhi ...

on 1 December, 1994

Delhi High Court


Delhi High Court
Paramjit Kaur And Anr. vs Municipal Corporation Of Delhi ... on 1 December, 1994
Equivalent citations: 1995 IAD Delhi 47, 56 (1994) DLT 720, 1994 (31) DRJ 588
Author: U Mehra
Bench: U Mehra
JUDGMENT
Usha Mehra, J.
(1) Mrs. Paramjit Kaur and other plaintiffs in Suit Nos-160/94, 161/94, 175/94, 176/94, 177/94, 701 /94,
1097/94, 987/94 and 9.S6/94 have sought permanent injustification against the Municipal Corporation of
Delhi (In short M.C.D.). The legal point raised regarding locus sti'.ndi of the M.C.D. and the validity of the
notice are common in all the cases. Though situation of the property may differ in each case, but the legal
submissions are common, therefore, the decision is rendered in this case.
(2) THE' facts of this case are that Mrs.Paramijit Kaur is the co-owner of property bearing No.1015(S to
10171, W.E.A.,Karol Bagh; New Delhi. Being co-owner she applied to the M.C.D. for sanction of plan. For
the construction of this property Delhi Development Authority (in short D.D.A.) had already issued .'No
Objection Certificate'. The said 'No Objection Certificate' was submitted to the M.C D. and after plaintiff
complied with all the legal formalities, the M.C.D. sanctioned the plan for construction of this building. The
sanction was accorded by the M.C.D. on 21st November,1990. The said sanction was valid for a period of two
years. She Along with other co-owners completed the construction within the stipulated period. Pursuance
thereto she applied for completion/ occupancy certificate. As per clause 7.6 of the Building Bve-laws, the
M.C.D. had to take decision on her application within 60 days from the date of the application for deposit of
money. In case the M.C.D. failed to take decision within 60 days, then as per clause 7.6, the completion/
occupancy certificate would be deemed to have been granted in favor of the plaintiff. Plaintiff has been in
occupation of the property in question and has not violated any term of the sanctioned plan or of the Delhi
Municipal Corporation Act,1957 (in short the D.M.C. Act,1957) or the Building Bw- laws and the Rules
framed there under. The other co-owners because to the family dispute, in connivance with the M.C.D., have
started complaining to the M.C.D. The M.C.D. at the behest of the other co-owners, has started threatening the
plaintiff to get the property demolished and also wants to seal it.
(3) Defendant M.C.D. vide I.A.No-159/94 wanted vacation of the ex parte interim injunction, primarily on the
grounds that the plaintiff has not approached this Court with dean hands. She has carried out enormous
unauthorised construction in violation of the terms of the sanctioned plan as well as D.M.C.Act, 1957, the
Building Bye-laws and the Rules framed there under. Plaintiff's co-owners filed suits in different courts
seeking injunction against M.C.D. pertaining to this very property. The cause of action was the same as in the
present suit. Ex parte Injunction granted in that case was vacated by the Civil Judge after M.C.D. entered
appearance and contested the application. Since the other co-owners could not get injunction, the present
plaintiff after concealing this fact filed this suit and got the ex parte injunction by concealing the true facts.
(4) During the course of arguments plaintiff moved an application seeking amendment of the plaint. She
wanted to incorporate the plea that the M.C.D. had no locus standi to take any action. The alleged
unauthorised and illegal construction falls under the "Development Areas". D.D.A. alone has the jurisdiction
over "Development Areas" as well as on the areas falling under old nazul lands. Therefore, it was contended
that unless the amendment is allowed, these applications cannot be disposed of. it would be very unfair, unjust
and against the principles of natural justice. Dwelling on these points, Mr.P.N.Lekhi, Senior Advocate
appearing for the plaintiff challenged the action of the defendant on various grounds and contended that
before hearing arguments on these applications, it would be in the interest of justice if the amendment
application is disposed first. Because if allowed, it would oust the jurisdiction of the M.C.D. even though the
construction raised is unauthorised, illegal or contrary to the Building Bye-laws of the M.C.D and the
Indian Kanoon - http://indiankanoon.org/doc/705930/

Paramjit Kaur And Anr. vs Municipal Corporation Of Delhi ... on 1 December, 1994

sanctioned plan.
(5) On the other hand Mr.Arun laitley. Senior Advocate appearing for the M.C.D. strenuously contended that
the amendment sought by the plaintiff cannot be a ground for not deciding this applications particularly when
the plaintiff herself by relying on the documents, inter se, the parties got the interim injunction. The plaintiff
was granted ex parte injunction on the basis of what she pleaded. This is so reflected in the order dated 20th
January,1994 passed by this Court where it has been observed that this Court perused Clause 7.6 of the
Building Bye-laws, looked into the Sale Deed dated 24th March,1975, letter dated 21st November,1990,MCD
receipt. Completion Certificate dated 28th August,1992 and the copies of the orders passed by this Court.
Taking these factors into consideration, the ad-interim injunction was granted, it has been specifically pleaded
in the plaint that construction raised by the plaintiff was not in violation of the sanctioned plan. From the
perusal of order dated 20th January,1994 and from the pleadings of the plaint it is clear, that this Court took
into consideration the sanctioned plan, M.C.D. receipt and the Completion Certificate and also the averments
made in the plaint then ex parte injunction was granted. Had the plaintiff not relied on these documents and
the specific averments regarding non-violation of the Building Bye-Laws, this Court might not have
considered it a fit case for granting ex parte injunction. It was in this background that the present application
has been filed seeking vacation of the injunction.
(6) While considering the application neither subsequent events nor the new grounds can be taken into
consideration. The ex-parte order based on mis-representation of facts is liable to be vacated. Having obtained
the ex-parte injunction on the basis of M.C.D's documents and after relying on the building bye-laws of the
M.C.D., the plaintiff now cannot turn round and say that M.C.D. has no jurisdiction. She is estopped from
raising this plea. M.C.D in fact is the only local authority which has the locus standi to issue notices followed
by consequent action. M.C.D. can refuse to issue Completion Certificate, if the building constructed at the site
is in violation of the Building Bye-laws and the sanctioned plan.
(7) Since counsel for the parties addressed arguments at length for and against the proposition as to whether
M.C.D. has or has not the jurisdiction to take action qua the plaintiffs as their properties are situated in the
alleged development zones, therefore, even though the amendment application was not taken up separately but
Mr.Lekhi, while addressing the arguments, took this Court through all the pleadings of his amended petition
as well as the documents relied therein. Moreover, this question of jurisdiction being a pure question of law
and there being no bar against the Statute, therefore, arguments on the same were permitted. While
considering these applications, this Court has taken note of the legal submissions made and also incidental
factual submissions made by the parties.
(8) Turning to the legal objection raised by Mr.Lekhi, we have to see on what basis plaintiff wants to oust the
jurisdiction of the M.C.D. Mr.Lekhi in this regard urged the following submissions, namely, (i) Karol Bagh
Zone being constructed on Old Nazul Land, hence D.D.A. alone has jurisdiction; (ii) This area has been
notified as "Development Area" on which the jurisdiction is only of D.D.A; (iii) Vide Resolution No.728 it
was decided not to prosecute the owners of the houses in Pusa Road for misuse of their houses for commercial
purposes; (iv) notice issued under Section 444 not only is bad in law but was in fact not served on the
owner/occupier of the property as required under the rules. Dwelling on these points Mr.Lekhi relied upon the
agreement dated 31st March,1937, between the Secretary of State for India in Council and the Delhi
Improvement Trust (in short the D.I.T.). According to this agreement, Old Nazul Land i.e. the Estate was
placed at the disposal of the D.I.T. w.e.f. 1st April,1937. Subsequent thereto the Old Nazul Land stood
statutorily transferred to the D.D.A., the later being successor body of the erstwhile Delhi Improvement Trust.
To support his submissions, he also placed reliance on Section 49 of the U.P.Town Improvement Act, which
is reproduced as under:- Seclion49: Powers under the Municipalities Act vested in the Trust (1)The provisions of Section 178 to 186, 189 to 194, 203 to 216, 218 to 224, 236, 256, 257, 261, 265, 266,
267 (except in respect of cleansing and disinfecting), 268 to 270 and 278 of the Municipalities Act shall so far
as may be consistent with the tenor of this Act apply to all areas in respect of which an improvement scheme
Indian Kanoon - http://indiankanoon.org/doc/705930/

Paramjit Kaur And Anr. vs Municipal Corporation Of Delhi ... on 1 December, 1994

is enforced; and for the period during which such scheme remains in force all references in the said sections to
the Board or to the Chairman, or to any Officer of the Board, shall be construed as reffering to the trust, which
in respect of such areas, may alone exercise and perform all or any of the powers and functions which under
any of the said Sections' might have been exercised and performed by the Board or by the Chairman or by an
officer of the Board; Provided that the Trust may delegate to the chairman or to any officer of the Trust all or
any of the powers conferred by this Section. (2) The Trust may make bye-laws for any area comprised in an
improvement scheme which is outside the limits of the municipalities. a) Generally for carrying out the
purpose of this act, and b) in particular and without prejudice to the generality of the aforesaid powers the
Trust may make bye-laws regarding any of the matters referred to in Section 298 of the Municipalities Act. 3)
The provisions of Sections 299 and 301 of the Municipalite Act, shall so far may be consistent with the tenor
of this Act, be applicable to all bye-laws made by a Trust under this sub Section, and all references in the said
Section to the Board shall be construed as referring to the Trust.
(9) Section 49 provides for the powers which vested in the Improvement Trust. According to him, all powers
regarding grant of permissions for construction and consequently of taking action for any alleged violation
relating to the erection of building within the Old Nazul Land vested in the Improvement Trust and not in the
municipal authorities. Reading of Section 49 makes it clear that the exercise of the power by the M.C.D. was
bad because the grant of permission for construction and consequent action for violation thereof vested with
the D.D.A. i.e. successor body of D.I.T. The provisions of U.P. Municipalities Act are similar to the
provisions of Punjab Municipal Act,1911 (in short the P.M.Act,1911), those provisions were in force even
prior to the constitution of the Delhi Municipal Corporation or D.M.C. Act,1957. Therefore, the areas which
fall under the Old Nazul Land, the jurisdiction of the same vest with D.D.A. and not M.C.D. Plaintiff by
erroneous belief got the plan sanctioned from the M.C.D. for the construction of her house. For this
ommission, no adverse inference can be drawn nor it would amount to admission of the rights and jurisdiction
of the M.C.D. Moreover there is no estoppel against the statute nor this act of her would debar her from
raising this legal plea. Obtaining of the sanction from the M.C.D. would not operate as bar particularly when
M.C.D. has no jurisdiction at all. Mr.Lekhi also drew my attention to the provision of Section 60(2)(b) of the
D.D.Act in order to stress that the said provision enabled the D.I.T. to take action or do things including grant
of permission under the U.P.Town Improvement Act, provided it was not inconsistent with the provisions of
D.D.Act. Clause (c) of sub-section (2) of Section 60 of the Act provides obligations and liabilities in respect
of all matters and things done by the D.I.T. with stipulation that it would be deemed to have been done by the
DDA. Combined reading of sub-section (3) of Section 12, Section 2(b)(c)(d) & (j), sub-section 2 of Section
22, Section 29,49 of the D.D.Act, read with Section 49 of the U.P.Town Improvement Act would lead to only
one conclusion that M.C.D. has no jurisdiction over the areas where plaintiffs houses are constructed.
(10) Moreover, D.D.A. passed Resolution NO. 728 dated 24th December, 1965 resolving not to prosecute the
owners of the properties who were using the same for commercial purpose contrary to the mandate given in
the Act as well as in the Master Plan of Delhi and had raised construction involution of the Building
Bye-Laws. In that Resolution, Pusa Road was specifically mentioned.
(11) Besides, the Pusa Road, W.E.A. Karol Bagh are development areas, on which as per the D.D.Act, the
Authority alone has the power.
(12) Rebutting these arguments, Mr.Jaitley contended that it is only those areas: which are specifically
declared as "development area" but others would-not automatically fall outside the jurisdiction of the M.C.D.
So far the present properties are concerned there is no such notification decelerating these areas as
"development area". Part of Zone A-7 was declared development area which is abetting Desh Bandhu Gupta
Road, Jhandewalan and 80 ft. wide road. The development to be effected is around Jhandewalan and Idgah,
where the D.D.A. plans to build flats and Community Centre. But by no stretch of imagination, Karol Bagh or
Pusa Road area as a whole can be called development area. These areas are fully evoped. Simiilarly,
bomdaries. of B Zone tew East Patel Nag going towards Toda Pur, Pa te Me, 60 ft. road item these two. Zone
B-3 does not cover Pusa Road. it can not be said that the properties m a-7 nor Zone B-3 cover Karol Bagh the
Indian Kanoon - http://indiankanoon.org/doc/705930/

Paramjit Kaur And Anr. vs Municipal Corporation Of Delhi ... on 1 December, 1994

Pasa Road areas. The Master plan and zonal development plan of the area clearly indicate that neither Karol
Bagh nor Pusa Road can be called "development axis" as defined under Section 2(e) of the D.D.Act Section
2(e) reads as under: Section 2: "DeeloiNneRl area" means wy area declared to be development area meter
s(r)b section (1) of Section 12.
(13) Even prior to coming in force of the D-D.Aet, these areas were in existence and fully developed. It was
not by mistake or omission that plaintiff got her prefer sanctioned from M.C.D. She and other plaintiffs were
fully aware that their properties come within the prediction of the M.C.D. By their conduct they are estopped
from challenging the jurisdiction of the M.C.D. Plaintiffs knew and it was their irnderstanduig that they were
to be governed by M.C.D. Building Bye-laws. Hence new they cannot be permitted to re- arrange or
re-interpret the boundaries of these areas.
(14) Lestihy agreements were advanced by both sides. These assignments revolved around the question
of-)ixrisdiction of M-C.D.and the boundaries of Zone A-7, B-2 and B-3. Section 507 bQ) of D.M.C.Act
provides that M.C.D. with the approval of Delhi Government could exempt any rural area from the preview of
M.C.D. Act. In this regard reference can be had to the Notification No.F-42(7)67 L&-B dated 20th ApriU968.
By this Notification area of Zone B-3 was declared a "development area" whereas Resolution No-728 relied
by the plaintiff cannot be called Notification under Section 507 of Uhe D.M.C.Act. This resolution was passed
for good reasons. The reading of the same shows that there was acute shortage of office accommodation in
that area at the relevant time. Thelefore, in order to ease -out the said shortage of accommodation, it was
resolved not to prosecute for miss-user of property by its owner. Pusa Road and Kalkai had been specifically
mentioned because there did not exist any commercial complexes at that time in these two areas, and until
such time commercial complexes were built, no action was to be taken. But this Resolution cannot be read in
perpetuity. What happened in the year 1965 cannot hold good in 1994. Today the position is not the same
particularly when we know that in Pusa Road commercial complex by the name of Rajindra Place has
been.constructed by D.D.A. Similarly, in Kalkaji, 'Nehru Place commercial complex'. Therefore, reliance by
the plaintiff on this Resolution is neither here nor there. Rather it proves Mr.Jaitley's point that after these
commercial complexes came up. Corporation has every right to take action against unauthorised
constructions. Therefore, no latitude can be exercised in favor of these plaintiffs who have prima facie
violated the terms of their sanctioned plan. In any case the land can be used only as per the Master plan and
Zonal Development Plan. Even otherwise no public authority has a right to pass a resolution deciding to turn a
blind eye to the statutory provisions. Such a resolution would never constitute as an estoppel.
(15) "DEVELOPMENT Area" as defined under Section 2(e) of the D.D.Act. clearly stipulates that there has
to be a declaration by the D.D.A. in terms of Sub Section I of Section 12 of the D.D.Act. But no such
declaration in terms of Section 12(1) has been produced, prima facie proving that Pusa Road, W.E.A, and
Karol Bagh require development. Reliance on notitification No.F.42(2)67 L&B dated 20th April,1968 is
misplaced. This Notification describes the boundaries .of Zone B-3. The descriptions of these boundaries are,
on the north east - Shankar Road, north west - Link Road, South East and South West-60 ft. Zonal Road. No
notification reading Zone A-7 has been produced. However, Zonal Engineer of the M.C.D. who was present
in Court pointed out on the basis of Zonal Development Plan and the Master Plan and indicated the
boundaries of Zone A-7 as on one side Desh Bandhu Gupta Road on the other Jhandewalan and 80 ft.
proposed wide road. Where as Pusa Road, W.E.A. and Karol Bagh fall under B-2 Zone. Neither Pusa Road
nor W.E.A. or Karol Bagh abets Idgah or Desh Bandhu Gupta Road nor Jhandewalan or 80 ft. proposed road
nor these boundaries abet the boundaries of B-3 Zone. In fact Zonal Development Plan filed by the M.C.D. of
Zone A-7 shows that Zone A-7 is Motia Khan area which has no connection with the area where this property
is situated i.e. Pusa Road or W.E.A. Karol Bagh as the case may be. Similarly, the Zonal Development Plan of
B-3 Zone is in fact Old and New Rajinder Nagar which is opposite Pusa Road leading towards Ganga Ram
Hospital. It is only the boundaries of B-2 Zone which can be Called On the South side Pusa Road, on East
Faiz Road, North West New Rajinder Nagar and proposed road passing through Rajindra Place. Zone B-2
prima facie can be called the area where the properties of the plaintiffs are situated. The Karol Bagh Zone
including Pusa Road and W.E.A. as per, the Zonal Development Plan and the Master Plan prima facie does
Indian Kanoon - http://indiankanoon.org/doc/705930/

Paramjit Kaur And Anr. vs Municipal Corporation Of Delhi ... on 1 December, 1994

not fall under either A-7 or B-3 Zones. Hence the Notification relied by Mr.Lekhi is of no help to him.
(16) Sub Section 3 of Section 12 of D.D.Act provides that once an area has been declared as a development
area, no development of land shall be undertaken or carried out in that area by any person or body except with
the written permission of the D.D.A. In order to attract this provision, the plaintiff has to prima. facie establish
that a Notification in terms of Sub Section I of Section 12 had been issue. Contention of Mr.Lekhi that it
requires evidence as it falls under the realm of facts to be approved, to my mind, has no force The question of
evidence would arise, if prima facie, this Court finds that the area where the property i.e. Pusa Road, W.E.A.
Karol Bagh areas abet Desh Bandhu Gupta Road, Jhandewalan or proposed 80 ft. road or East Patel Nagar
leading to Todapur, Shankar Road and the 60 ft. road. But it is not so. In Zone A-7, there is a patch of land
around the Jhandewalan and Idgah where D.D.A. is constructing flats i.e. near Skipper Building. Similarly
B-3 Zone was declared a development area qua only two small patches of land. Therefore, in the absence of
any notification prima facie it can not be said that that Karol Bagh including the Pusa Road and W.E.A. stood
exempted from the perview of the M.C.D. Act. . .
(17) Submissions of Mr.Lekhi regarding Karol Bagh being on old Nazul land, therefore, vest with the D.D.A.
has no force. Plaintiff cannot be allowed to re-arrange or re-interpret the boundaries. The boundaries indicated
in Zonal Development Plan and the Master Plan do not prima facie lead to the conclusion what Mr.Lekhi
wants this Court to hold. The plaintiff was fully aware that the properties being in fully developed zone fall
under the jurisdiction of M.C.D. and, therefore, submitted the plan for sanction. Now, she cannot turn around
and say that by mistake or by omission she got the plan sanctioned or that the M.C.D. has no jurisdiction.
After getting the plan sanctioned and erecting the building, she applied for the completion certificate. She got
the electricity and water connections. Even though there is no estoppel against the Statute, yet by her conduct
she is estopped from resiling from the same. Moreover, she obtained the ex parte injunction solely by
representing to this Court that there was no violation of Building Bye- laws nor she contravened the terms of
the sanctioned plan. Therefore, M.C.D. had no right to demolish the building or seal it. The competition
certificate was deemed to have been sanctioned. On the basis of these Submissions she obtained the order. She
cannot be allowed to take advantage of her action and pleadings, if she had not relied on these documents,
.perhaps this Court might not have granted her injunction.If what Mr.Lekhi wants this Court to accept, it
would amount to mis-representation of facts. Having alleged specifically that the Corporation sanctioned the
plan. Corporation deemed to have granted the completition certificate and hence the Corporation was acting
illegally. Mr.Lekhi's submission .that even if the building was consl.ucted unauthorisedly and in violation of
the terms of the sanctioned plan, still the M.C.D. has no jurisdiction, to rny mind, such an argument if allowed
would amount to putting premium on the illegal acts of the plaintiffs. It does not lie in the mouth of the
plaintiff now to contend that sanction of the plan by the M.C.D. was incidental. In fact keeping in view the
principles of natural justice and fair play, the net result would be that the plaintiff cannot be allowed to take
advance advantage other own wrongs. By her own conduct she is estopped from challenging the jurisdiction
of the M.C.D. Even otherwise as already observed above, no Notification has been placed on record to on that
the areas in question were exempted from the purview of the M.C.D. In the absence of the same, this Court
prima facie cannot answer the legal question regarding lack of jurisdiction of M.C.D. in her favor.
(18) In almost similar circumstnces, the Lahore High Court refused to grant injunction in the case of
Basheshar Nath and tee, Air 1940 Lahore
69. In that Case the Municipal Committee had refused to grant permission to a person to build certain
structure. The person subsequently induced the Committee to grant permission on condition that he paid
certain sum to the Committee. The Committee passed a resolution accepting the offer but when the person
failed to pay the sum as agreed served a notice under Section 172, Punjab Municipal Act, for demolition. That
person filed a suit and pleaded that the resolution imposing condition for grant of permission was illegal as a
bye-law had been made .pursuance to which the demolition could not be effected. In other words, he wanted
to utilise that portion of permission which Benefited him and to repudiate that part of it which went against
him. It was in these circumstances the Court opined that such a person cannot be granted injunction as his
Indian Kanoon - http://indiankanoon.org/doc/705930/

Paramjit Kaur And Anr. vs Municipal Corporation Of Delhi ... on 1 December, 1994

dealings with the Committee was .dishonest. In the present case also,as already observed above, plan was got
sanctioned from M.C.D., completion certificate was applied to the M.C.D., no objection was obtained from
D.D.A. for applying to the M.C.D. and the building has been constructed in violation of the sanctioned plan
and building 599 bye-laws of the M.C.D. Plaintiffs sought stay against the action of M.C.D. after relying
onthe documents issued by M.C.D., therefore, cannot be allowed to challenge to M.C.D's jurisdiction. This
conduct can be compared with the conduct of the plaintiff in Basheshar Nath's case. In similar circumstances,
this Court in the case of Anand Swarup v. Municipal Corporation of Delhi, held that deliberate attempt on the
part of he plaintiff to mislead the Court may or may not amount to a contempt, but will entainly disentitle him
to any interim relief. In that case also, the plaintiff had pleaded that the building was completed as per the
sanction plan and that he paid the compounding fee for minor deviation and obtained completion certificate.
However, the local commissioner who was appointed found that there were major deviations and the building
had been erected in violation of the sanctioned plan. The Court in such circumstances refused inter-locator
order in favor of the plaintiff. In the present case also, a local commissioner was appointed He in his report
dated 17th September.l994 has submitted that there are major deviations, as against 40% covered area, the
plaintiffs have in fact covered more than 100% with enclosed projections on municipal land. This fact was
concealed from this Court by the plaintiff at the time of obtaining x parte injunction. Prima facie this amount
to deliberate misrepresentation of facts. To the same effect is the judgment of the Supreme Court in the case
of G.Narayanaswanly Reddy v. Government of Karnataka and another. wherein it was observed that
suppression of material facts and non-disclosure of correct facts would entitle dismissal of the petition.
Reference can also be had to the decision of Punjab & Haryana High Court in the case of Chiranji Lal and
others v. Financial Commissioner Haryana, Chandigarh & ors., Air 1978 Punjab & Haryana 326 wherein it
has been observed that malafide and calculated suppression of material facts which, if disclosed, would have
disentitled the petitioners to the extra ordinary remedy under the writ jurisdiction or in any case would have
materially affected the merits of both the interim and ultimate relief claimed.
(19) Snell on the principles of equity at page 632 lays down the principles of conduct which means "He who
comes into equity must come with clean hands." As per the definition given by Snell regarding conduct with
reference to the facts stated above it cannot be said that plaintiff prima facie approached this Court with clean
hands. As per the local commissioner's report, prima facie there appears to be flagrant disregard to the
Building Bye-laws of the M.C.D. as well as the sanctioned plan. There is 100% coverage as against 40 % as
per the bye-law.. In the garb of obtaining in 600 terms stay, the plaintiffs want to perpetuate their unauthorised
acts. Ap plying the principles of natural justice, one can say that the plaintiff after having taken advantage of
these documents now finding herself in tight spot because of apparent violation of sanctioned plan wants to
get rid of the same. This is not permissible under law. Plaintiff not only concealed the: fact regarding actual
construction at site, but also concealed the fact that her co- owners Surinder Pal Singh and Narender Pal Singh
had filed suits on the same cause of action against the M.C.D. before the Civil Judge, Delhi. When M.C.D.
contested the injunction application, the Court dismissed their applications. After they lost in obtaining the
stay, they got their suits dismissed as withdrawn. The contention of Mr.Lekhi that the action of the co-owners
has no bearing on the present suit, to my mind, has no force. Plaintiff being co-owner with her brothers
Narender Pal Singh and Surinder Pal Singh cannot plead ignorance of their having filed suits and then
withdrawn. These facts she tactfully concealed on the ground that she did not file any suit. At this stage, the
plaintiff cannot be allowed to say that M.C.D. is a rank stranger. Equity is also not in favor of the plaintiff
who ex facie has violated the terms of the building byelaws and the sanctioned plan.
(20) While considering the conduct of parties, we can refer to Snell's Principles of Equity 27th Edition page
639. It is stated that "As with perpetual injunctions, the Court will consider the conduct of the parties in
deciding whether to grant an interlocutory injunction. Thus a plaintiff who complains of the defendant's
breach of contract will not obtain an injunction if he, too, is substantially in breach." Though these
observations were relied by Mr.Lekhi, but Mr.Jaitley relying on these very observations had contended that
the conduct of the plaintiff in this case deserve rebuff from this Court by refusing to grant interlocutory
injunction because she concealed the true facts regarding substantial breach committed by her in terms of
violation of the sanctioned plan, the building bye-laws and the rules framed there under.
Indian Kanoon - http://indiankanoon.org/doc/705930/

Paramjit Kaur And Anr. vs Municipal Corporation Of Delhi ... on 1 December, 1994

(21) Once the plaintiff has committed apparent breach, to my mind, she is not entitled to the discretionary
relief as held in the case of M/s Ocean Investment and Finance (P.) Ltd. v. Union of India & ors., . By
Supreme Court in the case of Uday Chand v.
Shankar Lal & ors., . In M/s Seemax Construction (P) Ltd. v. State Bank of India, Air 1992(7) Delhi 197 this
Court observed that if material facts are not disclosed it would amount to suppression of facts and the suit is
liable to be dismissed out going into the merits. As already observed, the material facts that co-owner of the
plaintiff filed similar suits against 601 M.C.D. for the same cause of action and got dismissed was concealed
from this Court, hence not entitled to interim injunction. Halsbury's Laws of England, fourth edition (Vol.l6)
deals with "principles of equity" in para 1303. It reads "in granting relief peculiar to its own jurisdiction a
Court of equity acts upon the rule that he who seeks equity must do equity. By this it is not meant that the
Court can impose arbitrary conditions upon a plaintiff simply because he stands in that position on the record.
The rule means that a man who comes to seek the aid of a court of equity to enforce a claim must be prepared
to submit in such proceedings to any directions which the known principles of a court of equity may make if
proper to give." In the case of Davis V. Duke of Marlborough (1819) 2 Swan 108 at 157 per Lard Eldon Lc
observed that "The principle of this Court is not to give relief to those who will not do equity". Plaintiffs were
refused injunction to prevent the termination of their contracts of employment because they themselves failed
to establish that they intended to act equitably in relation to those contracts.
(22) In the words of Chagla, Chief Justice, Bombay High Court in the case of Commissioner of Income tax
Bombay City v. Army and Navy Stores Ltd. Bombay, "it is difficult to understand how the assessed can be
permitted to deny the truth of the representation made by it in its letter dated 24th November,1946 when on
the strength of it it obtained a certain benefit and when on the strength of it the Taxing Department relieved it
of a certain obligation." Applying the observation of Chagia, Chief Justice in the facts of this case , it can be
said that having placed reliance on the documents i.e. sanction plan, completion certificate, M.C.D. receipt
etc. and having obtained the benefit of interim injunction, now the plaintiff cannot be allowed to say that
M-C-D- has no jurisdiction. To the same tent are the observations of the Privy Council in the case of Hariram
Serodegee v. Madan Gopal Bagla and anr. Air 1929 Privy Council 77 when it observed that a party having
claimed on the basis of investment in commercial speculations cannot claim on another basis when he finds
that the first basis is prejudicial to him. Reading of Section 49 of U.P.Town Improvement . Act as well as the
provisions of Section 12(1) and (3) of D.D.Act, it cannot be prima facie said that those provisions are
applicable to the facts of the present case.
(23) Mr. Mukul Rohtagi, Senior Advocate appearing in Suit Nos-987/94 and 986/94 took up the plea that
subsequent events which are mentioned in the amendment application have to be taken into consideration
irrespective of the fact that those were earlier pleaded or not. Furtherence to Mr.Lekhi's arguments, he
contended that the fact that M.C.D. has no 602 jurisdiction was not known to the plaintiffs. They should be
heard on this. Further the question of jurisdiction requires evidence and unless evidence is gone through this
Court prone facie cannot hold that the M.C.D. has the jurisdiction. He also took the plea that the judgments
cited by Mr.Jaitley are those where the Court gave finding after the case was decided finally i.e. after
recording of evidence. Since, serious questions of law and facts are involved and unless parties an allowed to
lead evidence, it cannot be inferred that the plaintiff has committed any breach or mis- represented the facts or
concealed the material facts. He also placed reliance on the decision of Supreme Court in the case of Dalpat
Kumar v. Prahlad Singh & ors.. to say that the probable injury to the plaintiff will be more. It cannot be
adequately compensated if the injunction is refused because the plaintiffs live already constructed the
buildings. Huge amount has been spent and resources would go waste if M.C.D. is not injuncted. It will be a
national wastage of resources. If ultimately this Court comes to the conclusion that the M.C.D. had no
authority to demolish or the provisions of law had not been complied with and in the meantime demolition
takes place, then the plaintiff will suffer irreparable loss which cannot be compensated by money. I am afraid
this argument has no merits because in the case of Dalapt Kumar (supra) Supreme Court observed that while
granting injunction in such cases. Court should cautiously look to the conduct of the party. Since, this Court
has come to the conclusion basing on the report of the local commissioner that there is a prima facie violation
Indian Kanoon - http://indiankanoon.org/doc/705930/

Paramjit Kaur And Anr. vs Municipal Corporation Of Delhi ... on 1 December, 1994

in terms of the sanctioned plan and building bye-laws of the M.C.D. and that there is 100% coverage as
against 40% permissible, this Court cannot by injuncting the M.C.D. would like to be a party to the illegal
action of the plaintiff nor can allow it to perpetuate simply because plaintiffs have already raised construction
in violation of the building byelaws and the sanctioned plan. If what Mr.Rohtagi contends is accepted, then in
each case where construction has already been raised no action can be taken, T his predicament will always be
thrown at the face of the Court. Such like persons will raise construction illegally and then come to Court for
protection on the ground that if allowed to demolish it would be a national wastage. It would always be made
fate accomplice. Therefore, I find no merits in these arguments.
(24) Relying on the observation in Snell's Principles of Equity, 28th Edition by P.V.Baker and P.St.J.Langan
or page 464 under the heading "Not Uberrimae Fidei", one can say that the risk undertaken is generally known
to the party, and the circumstances generally point to the view that as between the person who approaches the
Court should know what was con- 603 template and intended. He should take upon himself to ascertain
exactly what risk he was taking upon himself. Therefore, when plaintiffs raised the construction in violation of
the terms of the sanctioned plan and the building bye-laws, they took calculated risk. Hence cannot take
advantage of their own wrongs.
(25) Mr. Lekhi also challenged the notices issued by the M.C.D. under Section 444 of the Act, on the grounds
that these notices were not issued nor served in accordance with the Act. Instead of issuing to the own or
occupier, the word O/B/O have been written. This does not indicate as to whom these were addressed. Notice
dated 26th October,1993 was not served by registered post as required under Section 444 of the Act. The same
was pasted but no signatures of the individual witnesses were obtained. Notice is alleged to have been signed
by the official witness and not by any independent witness. Even the signatures of those witnesses differ and
cannot be relied upon. section 442 requires signatures to be stamped and pasting only if owner is not found
and not when the owner refuses to accept the notice. Whereas it was the case of the M.C.D. that the owner
refused and, therefore, pasting was done. This action is in violation of Section 444 of the Act. This argument
has no substance. Reading of Section 444 does not indicate that the owner or the occupier must be out of
station only then affixation has to be done. Not found or cannot be found does not mean that his availability is
not known for all times to come. If at a given time, the notice is tendered and not accepted or the owner is not
available and the adult member of his family has not accepted, then such a notice as per Section 444(1)(d) can
be served by pasting the same. Section 444 nowhere stipulates that notice has to be and must always be served
by registered post. Clause (d) of Sub Section 1 of Section 444 lays down three ways of serving notice i.e.(i) by
giving or tendering to the owner or occupier, (ii) if he is not found by affixation (iii) by sending it by
registered post to that person. It cannot be prima facie said that because notice was pasted therefore, it was not
a proper service under Section 444 of the Act or that since it is not signed by an independent witness,
therefore, notice is defective. This by itself is no ground to declare the action of the M.C.D. illegal nor will it
entitle the plaintiff for any interim relief.
(26) The contention of Mr.Rohtagi and Mr.Lekhi that concealment of fact should be looked into after
evidence is recorded cannot be appreciated. Concealment at every stage will remain concealment. I, however,
agree with the submissions of counsel to plaintiffs that staff of M.C.D. is responsible for this. After all these
buildings were not raised in a day. 604 These constructions were raised under their very nose. And yet no
action has been taken against such officials.
(27) For the reasons stated above, I am prima facie of the view that this is not a fit case where injunction could
be confirmed. In view of the apparent breach of the term of the building bye-laws and the sanctioned plan, no
irreparable loss would be caused to the plaintiff because she took calculated risk in constructing the building
in violation of the same. Plaintiff if ultimately succeeds, can be compensated with damages and costs. For the
reasons stated above, I find no merits in the application. The same is accordingly dismissed.

Indian Kanoon - http://indiankanoon.org/doc/705930/