Diwakar Kumar & Ors. v. Arbind Kumar

Heard learned counsel for the petitioners.

2. This civil revision has been filed by defendant nos.2 to 7-petitioners challenging order dated 17.01.2007 by which the learned Subordinate Judge-XI, Patna dismissed the application filed by them under Order VII Rule 11 of the Code of Civil Procedure, which was filed for rejection of the plaint of Title Suit No.219 of 2

3. The aforesaid title suit was filed by the plaintiffs- opposite party first set, who were admittedly the landlords and had given their land to the developer (defendant no.1-opposite party second set), who had constructed the building and had given apartments to the allottees and had also given to the plaintiffs their share in the apartment. In the plaint the following reliefs were sought by the plaintiffs : A. B. C. D. E. F. Let a decree be passed in favour of the plaintiffs and against the defendants after adjudication of lis. Let it be declared that each and every structure, architectural structural design are contrary to the sanctioned plan and is fit to be demolished. Let it be declared that the life and property of the owner of the land, who are entitled to 40 % of the constructed area are put into dangerous position. Because of non-provisions of earth-quake resistance system of emergency shaft in case of fire, devastation and earth quack as well as lives and properties of the resident of the neighbouring buildings and the occupiers of the builders sharers are also at risk, hence the apartment so constructed is misfit for habitation and dangerous to life and property. Let it be declared that the plaintiffs are entitled to get damages and compensation from the Developer (defendant no.1 amounting to Rs.21,50,000/- which have been fully detailed in Schedule-II of this plaint along with occurred interest @ 15% per month till the execution of decree and realizing full claim of damage + compensation of Rs.21,50,000.00 Let by order of temporary injunction the defendants be restrained from entering into or continuing in occupation of the building till final decision of the suit. Let it be declared that the building in question over Schedule-I is fit to be demolished and raised to ground, as the entire structure and were made against the sanctioned plan and against all building Bye- 3 laws, rules, regulations, resultant to danger of life, property of the land owner and also danger to other occupiers including lives and properties of other neighbouring building and common citizens and passersby. G. Let any other relief of reliefs be granted as deemed fit and proper.

4. It is apparent from the records that the suit continued and defendants appeared and filed their respective written statement. Furthermore, defendant nos.2 to 7 filed an application in the learned court below under Order VII Rule 11 of the Code of Civil Procedure claiming that the plaint be rejected as it was barred by the provisions of Bihar Regional Development Authority Act, 1981(hereinafter referred to as the BRDA Act for the sake of brevity) as well as the provisions of Bihar Apartment Ownership Act, 2004(hereinafter referred to as the BAO Act for the sake of brevity) and also due to the clauses of the Development Agreement between the plaintiffs and the developer (defendant no.1), which is apparent from the statement made in the plaint itself. The said application has been rejected by the learned court below vide the impugned order.

5. It transpires that the application filed by the petitioners, who were defendant nos.2 to 7 in the learned court below was only with respect to the clause (d) of Order VII Rule 11 of the Code of Civil Procedure. Although learned counsel for the petitioners vehemently challenges the impugned order on the basis of the provisions of section 54, 78 and 91 of the BRDA Act as well as section 27 of the BAO Act and Arbitration Clause 38 in the Development Agreement but from a bare reading of the said 4 provisions of the Act, it does not appear that any bar has been provided against filing of a suit claiming the reliefs as mentioned above.

6. So far section 54 of the BRDA Act is concerned, it merely gives detail of the power of the authority to order for demolition of a building and no bar for filing a suit by a land owner is provided therein. So far section 78 of the said Act is concerned, it is with respect to notice of the suit to be given by the plaintiffs to the authority and in the instant case admittedly such a notice had already been given by the plaintiffs to the authority. Furthermore, from a bare perusal of section 78 of the BRDA Act it transpires that in such a suit as mentioned above even the notices are not required as no relief is sought against the said authority but as a precautionary measure such a notice has been given by the plaintiffs to the authority, therefore, no objection with regard thereto can be raised by the defendants. So far section 91 of the BRDA Act is concerned, it is with regard to bar of jurisdiction of Civil Courts providing that no suit can be filed in a Civil Court to set aside or modify any order of the authority or restraining the authority or its officers or servants from doing any act or exercising any power or performing any duty purported to be done in the Act or Rules or Regulations framed thereunder. It is quite apparent that the suit has not been filed for any such claim against the authority. In the said circumstances, the plaint cannot be rejected on that score as no bar was provided for such suits under the provisions of the BRDA Act. 5

7. So far the BAO Act is concerned, section 27 thereof provides bar of jurisdiction providing that no Civil Court shall have jurisdiction to entertain or decide any question relating to the matter arising under the said Act or the Rules made thereunder. Every order passed by the Competent Authority was subject to Appeal or revision and every order passed by the appellate Authority, was to be final and was not to be questioned in any Court of Law. In this regard powers and duties of the competent authority are given under section 25 of the said Act which clearly shows that the competent authority as provided under the Act had no power to pass any order with respect to the claim of the plaintiffs raised in the plaint as mentioned above. In the said circumstances, the provision of section 27 of the Act will clearly not be applicable to the instant case. In the said circumstances the provision of the BAO Act does not provide any bar to the filing of the suit and hence the plaint cannot be legally rejected on that ground.

8. So far the Development Agreement is concerned, no doubt Clause 38 provides that if there is a dispute the matter may be referred to an Arbitrator but in the instant case the plaintiffs had specifically claimed that there was grave violation of the sanctioned plan resulting in the building constructed being dangerous to life and was hazardous to the persons living therein and was violative not only of the provisions of law but also for the purposes for which the building was given to the developer (defendant no.1). It is quite surprising that the developer, who was defendant no.1 has not filed 6 any such petition nor has approached this court against the impugned order and only defendant nos.2 to 7 have filed this civil revision, although they are mere allottees, this fact shows that they are henchmen of the developer and are acting at the instance of the developer, who is trying to keep himself behind the curtain for reasons best known to him, although he is defendant no.1 in the suit. In the said circumstances, it is quite apparent that the suit is not barred by any such provisions of law and the plaintiffs were quite justified in filing the suit and their plaint cannot be rejected under the provision of Order VII Rule 11 of the Code of Civil Procedure, which is not attracted to the facts and circumstances of this case as well as to the pleadings and reliefs detailed in the plaint.

9. In the aforesaid facts and circumstances, this court does not find any illegality or jurisdictional error in the impugned order and accordingly this civil revision is dismissed. harish/ ( S.N.Hussain, J)