R.S. Sodhi, J.
1. R.S.A. 80 of 1993 is directed against the judgment and order of the Additional District Judge dated 4.2.1989 in R.C.A. No. 22 of 1989 whereby the learned Judge, in appeal preferred against the judgment and decree of the Civil Judge dated 21.12.1988 dismissing the suit of the plaintiff, has dismissed the appeal.
2. This case has been pending in this court since 1993 when the matter was admitted confined to the question - Whether notice under Section 343 of Delhi Municipal Corporation Act ought to have been served on all the owners of the property responsible for construction or not? The matter has previously come up for hearing on thirty-seven occasions. When finally the matter was heard on October 28, 2003 and judgment reserved, counsel for the parties were given opportunity to file written synopsis within two days, if they so chose. Counsel have exercised their discretion and not filed anything within the stipulated period.
3. This is a typical case where an unauthorised construction by the appellants in the year 1981 continues to be enjoyed by them on minor legal quibblings which, even when decided, would not put an end to the litigation. The law has thus proved itself to be an ass.
4. Brief facts of the case, as noted by the learned Additional District Judge, are as follows :
'That plaintiffs are owners of 2 sites namely 19 and 19C, Darya Ganj, New Delhi and the plaintiffs undertook the construction of basement at plot No. 19-C. Prior to the undertaking construction of plot No. 19C the plaintiffs had submitted plans for sanction with MCD for plot No. 19C. In the plans the plaintiffs had not shown any independent passage and that plot No. 19C had shown the passage from the adjoining building of plot No. 19 which was under the ownership of the plaintiff. plaintiff submitted that MCD had sought clarification regarding the passage and the clarification was sent to MCD clearly marking the passage. The plaintiff did not receive any communication from MCD till 2.2.1981 regarding granting and refusal of the sanction and, thereforee, vide letter dated 2.2.1981 intimating the Executive Engineer that in the absence of communication from the defendant within prescribed time the plaintiffs were starting construction as per plans submitted. The MCD in its reply stated that the plans have already been rejected vide their letter No. 4811/AE(B)/HQ-1/80 dt. 21.10.1980 and the same had been received by the plaintiffs on 23.10.1980. On receipt of this letter from MCD dt. 4.10.1981 plaintiffs controverter this assertion of MCD on the ground that Smt. Nirmala Gupta plaint6iff No. 1 was not in India on 23.10.1980 and MCD was requested to send rejected plans and the letter for possible necessary action. It is further submitted in the plaint that a notice u/s 343 sub-section (1) of D.M.C. Act regarding unauthorised of the basement was issued in the name of plaintiffs No. 2 and 3. To this notice reply was given by plaintiff No. 3 and in the reply plaintiffs had called upon MCD to regularise the construction work as the construction was in accordance with the bye-laws. It is further admitted in the plaint that ZE of MCD addressed another notice dt. 9.2.1981 u/s 343 to plaintiffs No. 2 and 3 calling upon the plaintiffs that they should demolish the structure which has been unauthorisedly raised on the ground that the reply submitted by plaintiff No. 2 and 3 was not satisfactory and the construction was against building bye-laws. On receipt of this notice u/s 343 plaintiff No. 3 made a representation dt. 17.2.1981 to the defendant stating that there was no unauthorised construction and that they were filing an appeal against the rejection of the plan and the construction as made was regular sableand can be compounded by the payment of penalty. It is submitted that the plans of the plaintiffs had been rejected on the ground that plot No. 19-C had no approach/access to the outside road. The plaintiff had averred in the plaint that the access to plot No. 19-C was from plot No. 19 which was adjoining plot and it was sufficient compliance of the requirement of the building bye-laws and the plan has been rejected with ulterior motives. The plaintiff sought permanent injunction against the demolition on the ground that no notice u/s 343(1) of DMC Act was served on the plaintiff No. 1 and the alleged communication dt. 21.10.1980 of the rejection of the plaintiffs plan was never served on the plaintiffs and that there was no building bye-laws providing for independent passage to the site from the street. It was submitted that Section 336(2) of D.M.C.Act lays down that the sanction of the building may be refused if it does not abut on the street and that there is no access to said building or work from a any street or passage, but in this bye-law it has not been specified that the passage has to be direct passage. And that the passage or pathway need not be the part o the site in question but only served the purpose providing passage to the site. It was submitted that the construction work so far carried was in accordance with the building bye-laws. It was, thereforee, prayed that an injunction against demolition be granted.
In the written statement Corporation took the preliminary objection that suit was not maintainable in view of Section 477 and 478 of D.M.C. Act as well as in view of Section 343 and 344 of the Act read with Section 41(h) of Specific Relief Act. It was submitted that the plaintiff has no locus standi since the plan filed by the plaintiffs had already been rejected and the plaintiff has not come to the court with clean hands and suppressed the material facts. On merits it was submitted that the rejection of the building plans was done after duly considering the relevant documents including the additional plans submitted by the plaintiff and the rejection was done on 21.10.1980 and was duly communicated through the registered cover. It was submitted that the communication was received by the member of the family of the plaintiff No. 1 and amounted to proper service and if at all Smt. Nirmala Gupta was not in India then how the letter addressed to her was received on her behalf. It was submitted that the show cause notice u/s 343 dt. 5.2.1981 was rightly served upon the plaintiffs through Ravinder Gupta and Sham Lal and sons. Reply filed to the show cause notice was duly considered and the demolition notice dt. 9.2.1981 was served upon M/s Sham Lal and Sons and Ravinder Gupta at whose instance the unauthorised construction was being carried despite rejection of the plans submitted. It was submitted that the construction made at basement was illegal and without any sanctioned plan and the representation made by the plaintiffs were, thereforee, rejected. There was no plans with the building bye-laws and since the service of notice u/s 343(1) and u/s 343 of D.M.C. Act is admitted, the suit is liable to be rejected.
In the replication the facts stated in the plaint were reiterated.
The following issues were framed :
1. Whether the suit of the plaintiff is not maintainable u/s 343 D.M.C. Act?
2. Whether the suit of the plaintiff is barred u/s 477-478 of D.M.C. Act?
3. Whether the plaintiff has locus standi to file the present suit. If so, to what effect?
4. Whether the plan submitted by the plaintiff was deemed to be sanctioned as alleged by the plaintiff?
5. Whether the defendant complied with the provisions of Section 343 D.M.C. Act?
6. Whether the plaintiff is entitled to the relief as claimed?
7. Relief.'
5. The trial court by its order dated 21.12.1988 dismissed the suit of the plaintiffs (appellants herein). Being aggrieved thereof, they moved the Additional District Judge, Delhi, by way of R.C.A. No. 22 of 1989. The learned Additional District Judge, carefully re-evaluating the evidence on record, returned a finding that the trial court had rightly dismissed the suit. Being aggrieved thereof, the appellant have taken yet another chance before this court by way of the present Regular Second Appeal.
6. It was contended by counsel for the appellants that it was incumbent upon the Municipal Corporation of Delhi to serve notice of demolition on each of the appellants herein individually and that the service of notice on appellant Nos. 2 and 3, namely, Mr. Ravinder Kumar Gupta and M/s Shyam Lal Gupta & Sons, HUF, would not suffice.
7. It was contended by counsel for the respondent that the 1st and 2nd appellants were represented before the Municipal Corporation of Delhi by the 3rd appellant as is evident from the correspondence and, thereforee, notice of demolition served on the 2nd appellant, husband of 1st appellant, as also the HUF, appellant No. 3, is sufficient compliance which cannot be challenged as being vocative of principles of natural justice.
8. It is needless to point out that the 1st appellant, Smt. Nirmala Gupta, is the wife of 2nd appellant, Mr. Ravinder Kumar Gupta, who is member of the HUF, M/s Shyam Lal Gupta & Sons, appellant No. 3.
9. I have heard counsel for the parties and have carefully gone through the judgment under challenge. Counsel have also taken me through the documents on record. It is borne out from the record that the rejection of the plan was communicated to all the three appellants by the Municipal Corporation of Delhi. However, MRs. Nirmala Gupta, appellant No. 1, claimed that she was out of the country on the day the intimation of rejection of the plan was alleged to have been served on her. When service of rejection was not effected due to condition brought about by the appellants themselves, they cannot take advantage of the same, specially when there is no averment that appellant No. 1 has been kept in the dark by appellant Nos. 2 and 3 who are husband and HUF respectively
10. Without going to the nitty-grittyof procedure, it is not the case of the appellants that the 1st appellant never came to know of the demolition notice from her husband, appellant No. 2, or from the HUF, appellant No. 3, which was dealing with the Municipal Corporation of Delhi on her behalf as well. Her stand is that notice of demolition was simply not served on her and, thereforee, proceedings pursuant thereto, were not valid. The very case put up by the appellants is so frivolous that both the courts below have rightly come to a concurrent finding that in the facts and circumstances of this case notice of demolition on MRs. Nirmala Gupta was not essential. From the documents on record it appears that letter dated 19.2.1989 addressed to the Civil Engineer (Building), Municipal Corporation of Delhi, on the subject 'unauthorised construction', is a joint communication on behalf of the appellants. Such is another communication on the same subject dated 16.2.1989. Since appellant Nos. 1 and 2 are husband and wife and members of the HUF, appellant No. 3, service on HUF as also on appellant No. 2 is sufficient to infer/knowledge of rejection of plan and demolition notice on appellant No. 1.
11. In view of the reasoning of the courts below, which I confirm, as also upon re-appraisal of the material on record, I hold that the judgment under appeal need not be interfered with in Regular Second Appeal under Section 100 of the Code of Civil Procedure. R.S.A. 80 of 1993 is accordingly dismissed with costs quantified at Rs. 15, 000/- (Rupees fifteen thousand). Interim order granted by this Court shall stand vacated. CM 1189/1993 also stands dismissed.