SURESH GOEL Vs. M C D

JUDGEMENT

(1.) The short question which arises for consideration is whether the present suit filed by the plaintiff is barred in terms of Section 347-E of the Delhi Municipal Corporation Act, 1957, a preliminary issue having been framed on 20th February, 2006 which reads as under:- "Whether the suit of the plaintiff is maintainable" OPP" (Issue No.2)

(2.) Shorn of trappings, the case of the plaintiff in a nutshell is that the suit property consisting of agricultural farm houses bearing Khasra Nos.136, 145,146,147,152 and 154, Sultanpur, Mehrauli, New Delhi was raised as per sanctioned plan dated 16.12.1980. A completion certificate was issued by the defendants in respect thereof on 16.11.1984. Vide notification bearing no.S.O.623(E) and No.K-12016/5/79-DDIA/VA/IB dated 23rd July, 1998, however, the definition of agricultural land to be considered as farm house was altered by Government of India by amending the building bye-laws and the necessary provisions of the master plan. The said notification specified that agricultural land being of an area of 2 acres (0.8 hectares) and above would be within the definition of farmhouse and that 500 sq.metres of construction/covered area/FAR would be permissible on such farmhouse. On 25.9.1998, the defendants issued a circular which amongst other instructions laid down a levy of fees on additional FAR plus surcharge of 10% in respect of cases where unauthorized construction had been carried out in violation of pre 23.7.1998 norms, but which were within the norms which had been revised vide notification dated 23.7.1998. In furtherance of said notification, further notifications and advertisements were published by the defendants from time to time inviting the general public to get their unauthorized/excess construction regularized. The plaintiff received a letter dated 21.1.2000 from the defendants whereby he was asked to take necessary steps to avail the facility of the aforesaid amnesty scheme for regularization of the excess coverage in the suit property. In response thereto, the plaintiff deposited his application for availing of the amnesty scheme on 16.3.2000.

(3.) While the aforesaid application of the plaintiff for regularization was pending consideration with the defendants, the plaintiff received a notice dated 6th July,2001 under Section 344(2) and 344(4) of the Delhi Municipal Corporation Act, wherein the defendants for the first time informed the plaintiff that there was excess area of about 557.35 sq.metres in the suit property "without any details as to how the said excess area had been calculated". The notice also did not detail the portions of the property in which allegedly excess area existed. The plaintiff's allegation is that the said notice was malafide, illegal and without jurisdiction, apart from being in violation of the policies and schemes of the defendants themselves, and issued in spite of the fact that the application of the plaintiff for regularization was pending with the defendants. While the plaintiff was still trying to sort out the regularization matter, the defendants in a highhanded manner without serving any notice on 26.4.2002, demolished portions of the suit property at the back of the plaintiff.