RADHEY SHAM GUPTA v. DELHI DEVELOPMENT AUTHORITY — 1998 DIGILAW 398 (DEL)

K. S. Gupta, J. ( 1 ) PLAINTIFFS have filed application under Order XXXIX Rules 1 and 2 read with Section 151 Civil Procedure Code inter-alia alleging that in the present suit filed for declaration and injunction IA No. 4/97 under Order XXXIX Rules 1 and 2 read with Section 151 Civil Procedure Code was filed by them and notice thereof was issued to the defendants for 17th January, 1997. In the meantime, status-quo regarding title of the suit land was ordered to be maintained by the Court. In reply to the said IA defendants 3 and 4 alleged that defendant No. 3 had already been allotted the suit land by defendant No. 1 and a registered perpetual; leases deed had also been executed on 4th November, 1996. Since there was threat of demolition of the existing structure and raising of fresh construction on the suit land by defendants 3 and 4, the plaintiffs filed yet another application being IA No. 1117/97. Notice of this application was accepted by the counsel of defendants 3 and 4 and he was allowed two weeks time to file the reply and the case was ordered to be listed on 21st March, 1997. On that date case was postponed to 23rd May, 1997 for disposal of said IA No. 1117/97 and framing of issues. On 23rd May, 1997 case was adjourned to 27th October, 1997 on which date the issues were framed and the case has been posted for trial from, 8th to 11th September, 1999. Said IA has not been disposed of. Taking advantage of that fact, the defendants 3 and 4 are trying to put the threat into reality and have issued pamphlets etc. inviting people to donate for the expansion of the existing structure and construction of community centre etc. on the suit land. A trust is claimed to have been created by defendant No. 3. It is stated that if defendants 3 and 4 are successful in raising the structure the Plaintiffs will suffer irreparable injury. It is prayed that defendants 3 and 4 be restrained from demolishing the existing structure and raising any construction over the suit land during the pendency of the suit. It is stated that if defendants 3 and 4 are successful in raising the structure the Plaintiffs will suffer irreparable injury. It is prayed that defendants 3 and 4 be restrained from demolishing the existing structure and raising any construction over the suit land during the pendency of the suit. ( 2 ) IN their reply contesting defendants 3 and 4 have alleged that the present application has been filed by the plaintiffs at the behest of G. R. Sethi who is the President of defendant No. 2-society. Sh. Sethi failed to obtain favourable order in the suit for injunction filed against defendant No. 1 (S. No. 337/96) before the Senior Sub Judge, Delhi. Appeal being MCA No. 105/96 taken out be him against the interim order passed in said S. No. 337/96 was also dismissed by Sh. Kuldeep Singh, Additional District Judge by an order dated 1st October, 1996. It is further alleged that the suit land had been allotted to defendant No. 3 by defendant No. 1 and a registered perpetual lease deed had also been executed in defendant No. 3 s favour on 4th November, 1996. Defendants 3 and 4 being in legal possession of the suit laid before the filing of the suit ought not be restrained from raising construction of the temple-cum-community centre in accordance with the building plans sanctioned by the appropriate authorities Pamphlets have been circulated for raising funds for construction of the community centre-cum-temple at the site. It is emphatically denied that the plaintiffs would suffer irreparable loss in case the temple-cum-community centre is constructed by defendants 3 and 4. ( 3 ) I have heard the parties counsel and have been taken through the record. In short the case pleaded in the plaint by both the plaintiffs who are the members of defendant no. 2-society, is that since the suit land was developed by defendant No. 2 it should have been allotted by DDA-defendant No. 1 to it instead of to defendant No. 3. During the course of argument it was not disputed before me on behalf of the plaintiffs that aforesaid S. No. 337/96 for injunction was filed by defendant No. 2 against defendant No. 1 before the Senior Sub Judge, Delhi and therein relief of temporary injunction was declined to defendant No. 2 by the Trial Court. During the course of argument it was not disputed before me on behalf of the plaintiffs that aforesaid S. No. 337/96 for injunction was filed by defendant No. 2 against defendant No. 1 before the Senior Sub Judge, Delhi and therein relief of temporary injunction was declined to defendant No. 2 by the Trial Court. Appeal being MCA No. 105/96 taken out against that order by defendant No. was also dismissed by Sh. Kuldeep Singh, Additional District Judge by an order dated 1st October, 1996. Plaintiffs being members of defendant No. 2-society were duly represented by defendant No. 2 in the said suit and the appeal and in the face of the orders passed in the suit and the appeal, they cannot be granted the discretionary relief as sought in the present IA by them. ( 4 ) THIS brings me to the main objection taken on behalf of defendants 3 and 4 that as the suit itself is not legally maintainable against defendant No. 1 for want of service of notice under Section 53-B of the DDA Act (for short the "act"), the plaintiffs cannot be granted the relief prayed for in the application. It may be noticed that in the plaint plaintiffs have inter-alia sought the reliefs for passing decree of declaration declaring that the alleged allotment of the suit land by defendant No. 1 in defendant No. 3 s favour is null and void and direction to defendant No. 1 to allot the land to defendant No. 2 as per the guidelines and rules prescribed for the purpose. Looking at the nature of the relief claimed it was obligatory on the part of the plaintiffs to have served on defendant No. 1 notice under Section 53-B of the Act before the institution of the suit (See : R. K. Aneja Vs DDA and Anr, 61 (1996) DLT 757 ). Plaint is obsolutely silent about the serving of such a notice on defendant No. 1 by the plaintiffs. During the course of argument it was conceded by the learned counsel of the plaintiffs that no notice under Section 53-B of the Act was served by the plaintiffs on defendant No. 1 before the filing of suit. Plaint is obsolutely silent about the serving of such a notice on defendant No. 1 by the plaintiffs. During the course of argument it was conceded by the learned counsel of the plaintiffs that no notice under Section 53-B of the Act was served by the plaintiffs on defendant No. 1 before the filing of suit. However, according to him, plaint filed in said S. No. 337/96 by defendant No. 2 can be treated as a notice on defendant No. 1 by the plaintiffs and further that it is not open to defendants 3 and 4 to raise the plea of non-service of such a notice. Reliance was placed on a decision rendered by this Court in Nehru Place Hotels vs. DDA etc. 1991 R. L. R 389. In that decision it was held that if the plaintiff files the writ petition and its notice is issued and then the writ petition is withdrawn for filing suit and after the same is filed then the DDA-defendant cannot oppose the suit fr lack of notice under Section 53-B as well requirements of notice were contained in the writ petition and the defendant was fully aware of the plaintiff s case. This decision is clearly distinguishable in as much as said S. No. 337/96 was not filed by the plaintiffs but by defendant No. 2 society and the same is still pending before the Trial Court. Therefore, prima facie the suit seems to be not legally maintainable for want to statutory notice qua defendant No. 1 against whom main reliefs have been claimed in the suit by the plaintiffs as urged on behalf of defendants 3 and 4. ( 5 ) IT may be noted that defendant No. 1 too in its written statements has specifically taken the plea in regard to non-service of notice under Section 53-B of the Act. I am not convinced with the latter limb of the argument referred to above advanced on behalf of the plaintiffs that plea of non-service of notice cannot be raised by defendants 3 and 4. I am not convinced with the latter limb of the argument referred to above advanced on behalf of the plaintiffs that plea of non-service of notice cannot be raised by defendants 3 and 4. It is in the reply of defendants 3 and 4 filed to the plaintiffs IA No. 4/97 that the physical possession of the suit land after allotment was handed over by defendant No. 1 to defendant No. 3 on 18th October, 1996 and registered perpetual lease deed was thereafter executed in defendant No. 3 s favour on 4th November, 1996. That being so, there is absolutely no justification to restrain defendants 3 and 4 to proceed with the construction work on the suit land as per the sanctioned plan. Any construction that may be put by them on the suit land shall be at their own risk. From the aforesaid discussion, it must follow that the plaintiffs have neither been able to make out a prima facie case for grant of the reliefs sought for nor is the balance of convenience in their favour and the application therefore, deserves to be dismissed with costs. ( 6 ) APPLICATION is dismissed with Rs. 3,000. 00 as costs. Order dated 16th April, 1998 is hereby vacated.