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[Cites 10, Cited by 0]

Delhi District Court

Sh. Tara Chand Mogha vs Sub Divisional Magistrate on 27 January, 2021

     IN THE COURT OF SH. RAKESH KUMAR RAMPURI
ADDITIONAL SENIOR CIVIL JUDGE : JSCC : GUARDIAN JUDGE,
            KARKARDOOMA COURTS (EAST)

Suit No. 463/2019

Sh. Tara Chand Mogha
S/o Late Shri Mani Ram Mogha
R/o A­3/3, Gali No. 1,
Amar Vihar, Karawal Nagar
Delhi­110094.
                                                   ........... Plaintiff.
                              VERSUS
1.     Sub Divisional Magistrate,
       Sh. A.K. Sharma,
       Seelampur, Delhi

2.     S.H.O,
       P.S. Karawal Nagar,
       Delhi.
                                                   ......... Defendants.

Date of institution of the suit :     15.05.2008
Date of remand back:                  04.05.2019
Date on which order was reserved:     08.01.2021
Date of decision :                    27.01.2021
     SUIT FOR DECLARATION, MANDATORY AND PERMANENT
                              INJUNCTION.
JUDGMENT

Facts of the suit as per pleadings of parties:­

1. The relevant facts of the present suit for its adjudication are that the plaintiff was inducted as a tenant in the suit property i.e. plot Suit No.463 /19 Page 1 of 22 measuring 250 sq. yds, khasra No. 39/5/2, rectangle no. 39, located at Ram Garden, Karawal Nagar, Delhi­94 by it's landlord Shri Om Prakash @ Rs. 1000/­ per month for carrying out the business of automobile repairs only inside said premises. Plaintiff stated that he has been paying the rent to the landlord regularly but the landlord has been trying to evict him from the said tenanted property forcibly. Plaintiff further stated that the landlord assaulted him and his son and others who are working inside the said premises and said matter was reported to the local police. It has been stated by the plaintiff that for securing his possession, he has filed a suit no. 127/2004 before the court of Ld. Civil Judge, Tis Hazari Courts, which has granted injunction in his favour, while allowing the application under Order 39 Rule 1 & 2 of CPC and said suit was finally decreed in favour of the plaintiff vide order dated 28.09.2005. Plaintiff submits that said Om Prakash has transferred the said property to one Manoj Vashist illegally vide GPA, who has filed a suit for recovery of possession before Civil Court against him. It has also been stated by the plaintiff that the landlord of the suit property in connivance with said Manoj Vashist had made a plan to get the suit property sealed illegally under the garb of directions of Hon'ble Supreme Court of India.

2. Ld. Counsel for plaintiff stated that plaintiff was carrying out the business of repairing of car engines in the suit property and there has been no electricity or water connection for the suit property and therefore no manufacturing of parts or any other job could be said to be polluting in nature can be carried out in the suit property in absence of supply of electricity or water. Ld. Counsel for plaintiff further stated that the plaintiff was only carrying out the repair of engine by fitting of the parts and Suit No.463 /19 Page 2 of 22 equipments and beside that nothing was being carried out inside the suit property. It has also been stated by the plaintiff that in Karawal Nagar, there wer e around 50 shops carrying out the job of auto workshop and the said shops are also using electricity and water supply for the services of repairs, denting, painting etc but defendants had not stopped such activity or sealed such premises concerned except the premises of plaintiff. It has further been stated by the plaintiff that the defendant no. 1 without giving any prior show cause notice to the plaintiff as per the direction of Hon'ble Supreme Court of India, has put seal on premises of suit property of plaintiff on 03.5.2008 with the assistance of defendant no. 2. Accordingly, ld. counsel for plaintiff submits that defendant no. 1 has done illegal act of sealing of the said premises of plaintiff without giving an opportunity to the plaintiff for explaining the causes or even to remove the articles laying inside the suit property despite the claim of plaintiff as to no job was being done there can be said to be of polluting nature or that of any restricted category. It has been stated by plaintiff that the defendants have told him that the only option available to him is to vacate the suit property and to handover possession to one Rakesh Kumar, who was an employee of MCD, who invested the fund in purchasing the originally benami property in question. It has also been claimed by the plaintiff that the said suit property has been sealed at the instance of Om Prakash, Manoj Vashist and Rakesh Kumar, who wanted him to vacate the premises in question as he has been using the same on the payment of just Rs. 1000/­ per month, although the rate of property was too high. It has also been stated by the plaintiff that in the sealing order dated 03.05.2008, the Suit No.463 /19 Page 3 of 22 defendant no. 1 has nowhere mentioned as to in which prohibited category of jobs/works in given suit property falls. Plaintiff has further stated that defendant has noted down that there was no electricity meter and water connection in the suit property but at the same time it has been mentioned in clause 3 of sealing order that the job of car repairing, denting, painting etc., was being carried out by the plaintiff. Ld. counsel for plaintiff further stated that in the absence of electricity connection no job of denting, painting or any other heavy car repair job can be carried out. It has been stated by the plaintiff that the defendants had deprived him from the source of livelihood which is a constitutional fundamental right of an individual in illegal, arbitrary and unwanted manner. It has also been stated by the plaintiff that the sealing order dated 03.05.2008, is bad in eye of law as no prior show cause notice has been given to him by the defendants before closing his source of livelihood in suit premise and therefore, same is also violative of principles of natural justice.

3. The plaintiff has, thus, filed the present suit praying for a decree of declaration declaring the action of the defendants and the sealing order dated 03.05.2008 as null and void. The plaintiff has also prayed for a decree of mandatory injunction directing the defendants to remove the seal put on the suit property. Plaintiff has also prayed for a decree of permanent injunction restraining the defendants from causing any hindrance in carrying out his business in the suit property.

4. The defendant no.1 has filed his written statement and has stated that the present suit of the plaintiff is not maintainable. It has also been stated by him that plaintiff has suppressed the material facts from this Suit No.463 /19 Page 4 of 22 court and therefore the suit is liable to be dismissed under Section 35A of CPC. It has been stated in written statement of defendant no. 1 that he has rightly and validly sealed the suit property. Defendant no. 1 stated that a complaint was received in the office of Deputy Commissioner (Shahdara, North Zone) of MCD regarding pollution due to illegal running of workshop in the suit property from the monitoring committee, appointed by Hon'ble High Court of Delhi. It has also been stated by defendant no. 1 that there was complaint dated 27.09.2007 by a resident of Karawal Nagar area regarding noise pollution due to denting and painting of vehicles and air pollution due to repair of deasil/petrol vehicles at the suit property. He also stated that the said activities in the suit property were creating bad effect on the health of newly born and old persons residing in the maternity centre of the MCD, which was just opposite to the workshop of the plaintiff. It has been stated by defendant no. 1 that on the basis of various complaint, the Tehsildar (Seelampur) had filed his report stating that the workshop was being run on the suit property for the last 8 years. It has also been stated by the defendant no. 1 that on the basis of complaints received from said monitoring committee, said report of Tehsildar (Seelampur) and the direction of Hon'ble Supreme Court of India regarding sealing of industries causing air, water and noise pollution, the said workshop of plaintiff was sealed on 03.5.2008. It has been further stated by the defendant no. 1 that at the time of the sealing of the suit property, the denting, painting and repairs of the vehicles were going on and noise and air pollution was noticed in the workshop and it was also observed that the said pollution was causing bad effect on the health of mothers/ newly born children in the nearby Suit No.463 /19 Page 5 of 22 maternity home. It has also been stated that the sealing report was conveyed to Deputy Commissioner (North East) and to the monitoring committee on 05.5.2008. Replying on merits, the defendant no. 1 has stated that the suit property is situated in residential non conforming area of Delhi and the plaintiff was running the business of car repairing, denting and painting which was covered under unauthorized industrial activities as per orders of Hon'ble Supreme Court of India. The defendant no.1 has denied other averments made in the plaint and has prayed for the dismissal of the present suit."

5. On the basis of pleadings, following issues were settled and same are as under :­ i. Whether the plaintiff is entitled for the decree of declaration as prayed for? OPP ii. Whether the plaintiff is entitled for the decree of mandatory injunction as prayed? OPP iii. Whether the plaintiff is entitled for the decree of permanent injunction as prayed? OPP iv. Whether the suit of the plaintiff is not maintainable in the present form? OPD v. Relief.

6. Plaintiff and officials from office of SDM Seelampur and record room, Tis Hazari Courts were examined as PW1, PW2 and PW3 on behalf of plaintiff. Defendant SDM Sh. A.K. Sharma had stepped into witness box as DW1 and tendered his evidence by way of affidavit Ex.DW­1/A. Said DW1 Sh. A.K. Sharma, was cross examined partly on 28.09.2011, 02.03.2012, 05.06.2012. However, testimony of s a i d Suit No.463 /19 Page 6 of 22 witness was not concluded and in terms of c o u r t ' s order dated 29.07.2013, right of the defendant to lead further DE was closed. Vide judgment dated 31.03.2014, Ld. Civil Judge (East) has dismissed the present suit while observing that the Civil court has no jurisdiction to set aside the sealing order of SDM made in pursuance of the directions of the monitoring committee and Hon'ble Supreme Court of India and the review petition of plaintiff was also dismissed by Ld. Civil Judge vide order dated 05.06.2014. Further, the Appellate Court of Ld. ADJ­02 (East) vide order dated 06.04.2019 in RCA No. 53/16 titled as Tara Chand Mogha Vs. SDM remanded back the suit to the court of Civil Judge with direction to conclude the remaining evidence of DW­1 A.K. Sharma, after affording an opportunity to the plaintiff to cross­examine him. Subsequently, vide order dated 16.01.2020, Ld. Civil Judge was constrained to close the stage of DE in present suit as defendant could not produce the DW­1 for further cross­examination despite affording various opportunities and specific direction of the court for the same. Meanwhile, the present case was transferred from the court of Civil Judge, East to the present court as per circular No. 5811­5820/D&SJ (East)/KKD/Delhi, dated 05.09.2020. Finally, ld. counsel for plaintiff made detailed final oral submissions on 07.01.2021 and 08.01.2021 before the court.

7. Some pertinent observations of ld. Appellate Court made in said judgment dated 06.04.2019 in RCA No. 53/16 in appeal titled as Tara Chand Mogha Vs. SDM & Ors. are reproduced for sake of convenience and clarity about the issues in present suit for adjudication by the court and same are as under :­ "10. i) First of all I may note that the issues which were Suit No.463 /19 Page 7 of 22 settled did include the issue with regard to the maintainability of the suit. However, the said issue was not taken up as a preliminary issue. Had such an issue been taken up as a preliminary issue/disposed of at the very outset the same could have set the pace of the case or even the need for a trial..................

ii) Ld. Trial Court by the impugned judgment has completely ignored or rather eschewed from the zone of consideration the entire evidence which has been led by either side. Solely on the point of jurisdiction it has been concluded that the orders of the monitoring committee cannot be assailed in Civil Court and as such, the suit was dismissed.

In my considered opinion it would have been more apt if the evidence which was led by either side appreciated in the context of the dispute agitated by the plaintiff. The defendant had clearly set forth a case that the sealing was done at the instance of the monitoring committee ­ under intimation to the monitoring committee and they had the due record as well. Still the entire evidence led by the defendant - primarily upon which the case hinged was excluded from consideration notwithstanding the fact that DW­1 was subjected to extensive cross examination by Ld. Counsel for plaintiff. The grievance of the plaintiff could have been very well easily countered by proving that the sealing which was done was under the directions/guidelines of the monitoring committee or done under the discharge of duties by SDM. For the said reason alone DW­1 in his evidence had testified about the fact that the complaint was received in the office of the Deputy Commissioner (NE) from DC (Shahdara North zone MCD) regarding the workshop being run by the plaintiff which too came from the monitoring committee. Further Monitoring Committee in its letter dated 16.10.2007 had forwarded a complaint dated 27.09.2007 of the residents of Karawal Nagar for action. The SDM had also called for the report of 'tehsildar' whereafter the sealing was done on 03.05.2008 and the report was sent to DC (NE) as well as Suit No.463 /19 Page 8 of 22 monitoring committee on 05.05.2007.

The aforesaid vital evidence was altogether ignored and the Ld. Trial Court had merely observed that the witness was not present for his further remaining cross examination and as such his entire testimony till the said date was excluded/led to the said evidence being discarded outrightly.

iv)................. Meaning thereby the evidence of DW­1 was held to be relevant for the purpose of disposal of the controversy apart would have a bearing on the fact that the sealing done was in accordance with the directions of the monitoring committee/ under intimation to the monitoring committee as well as higher authorities - same underscores the importance of the testimony of DW­1.

v).............. Now in my opinion by allowing the application of the plaintiff for cross examination of DW­1 does not by itself means that the entire evidence which has earlier been led would be effaced or rendered meaningless. The benefit endured to the plaintiff by reopening of his right to cross examine does not extend to either effacing the entire evidence so recorded or rendering it nugatory or inconsequential.

vi) Dehors the aforesaid the import of the case of the plaintiff is that the actions taken by A.K.Sharma, the then SDM were colourable exercise of his duties/malafide exercise of his powers as there were pending dispute interse the plaintiff and his landlord/subsequent buyers which were pending in the Court. Further more there was no electricity or water connection in the unit which was sealed and it did not qualify to be a polluting industry. Insofar as said contentions are concerned in my opinion the question which was to be probed is as to the fact whether the acts which were done by the defendant ­ SDM were in accordance with law or not. That is the precise question which the Court could have dealt with and required to answer. For the said purpose it is not imperative to minutely scan each and every act /test the Suit No.463 /19 Page 9 of 22 legality whereof but from the evidence it could have been seen/ascertained that the acts done by SDM were under the instructions of the monitoring committee or otherwise in compliance of the monitoring committee directions or as directed by the higher authorities.

8. After considering the pleadings and submissions of parties to the present suit, material brought on record by them and aforesaid observations of ld. Appellate Court made in its order dated 06.04.2019, this court proceeds to pass it's decision on issues framed hereinbefore:

Issue no. 1 :
Whether the plaintiff is entitled for the decree of declaration as prayed for? OPP

9. The plaintiff Tara Chand Mogha has examined himself as PW1 and tender his evidence by way of affidavit Ex.PW1/A. PW1 relied upon the order of Ld. Civil Judge, dated 28.09.2005 regarding disposal of the suit as satisfied in view of statement of defendant Om Prakash Sharma (Ex.PW3/B) in a suit for mandatory injunction titled as Tara Chand Mogha Vs. Om Prakash Sharma bearing suit no. 127/04 and subsequent decree in said suit no. 127/04 (Ex.PW3/C) and also Sealing Order of defendant SDM bearing no. F.SDM/NE/2007/2112­13 dated 03.05.2008 (Ex.PW2/A). During cross­examination by the defendant, PW1 stated that he had been doing repairing working of scooters/ motorcycles in the name and style of "Dharam Auto Mobiles" by way of tools in the premises of suit property since year 2000. PW1 admitted that one maternity centre is situated nearby the suit property at a distance of 30 meters across the Suit No.463 /19 Page 10 of 22 road. PW1 deposed that one kalandra under Section 107/151 of Cr. PC was also prepared against him on the complaint of Om Prakash Sharma. PW1 further deposed that he had not approached the Commissioner of Industries for de­sealing the suit premises. PW1 also stated that he had not placed on record any certificate showing the village Karawal Nagar was being declared as Lal Dorra area. PW1 further stated that by minor defects of car engine, he meant self and alternator problem in the car engines. It was suggested by the ld. counsel for the defendant during cross­ examination of PW1 that for rectification of self and alternator problem in car engines, the electricity is required and he was carrying out denting/painting of cars/scooters in the suit premises and also noise was caused due to repairing works being carried out in the suit premises. PW1 accepted that at the time of sealing of suit property one Maruti car, one scooter and some tools were found in the suit premises.

PW2 Jayant Kumar (LDC in the office of SDM, Seelampur, Delhi) has brought the sealing order dated 03.05.2008, Ex.PW2/A. PW3/A Lokesh Kumar Singh, (LDC, record room Civil, Karkardooma Courts, Delhi) has brought the Civil Courts order dated 28.09.2005 Ex.PW3/A and the statement of Om Prakash Sharma in suit no. 127/04 dated 28.09.2005 Ex. PW3/B and the decree sheet dated 28.09.2005 Ex.PW3/C. 9.1 Defendant A.K. Sharma examined himself as DW1 and he relied upon letter dated 22.01.2008 (Ex.DW1/2) of coordinating officer of monitoring committee constituted by Hon'ble High Court of Delhi issued to DC (North­East) for taking action against workshop near A­206, Rama Suit No.463 /19 Page 11 of 22 Garden, Karawal Nagar, Main Road, Delhi on the a letter (Mark­A) of Ravinder Kumar (a resident of Karawal Nagar Area) regarding pollution in the premises of Dharma Automobiles, which was received by the said monitoring committee on 27.09.2007. During cross­examination DW1 stated that he had worked as SDM of Seelampur from April 2008 to August 2011. DW1 has filed a Government's Gazette notification dated 30.01.2008 Ex. DW1/A1 which was also sought to be relied by the plaintiff. DW1 deposed that Central Pollution Control Board has not delegated any power to him to determine the level of noise and air pollution. However, DW1 also stated that written instructions were given from Industrial department of Government of NCTD to seal the industries in no­conforming/residential area. DW1 further deposed that he used to take action against erring industries on receipt of complaint/instructions from various authorities including monitoring committees formed by Hon'ble Delhi High Court. DW1 admitted that he never met complaint Ravinder Singh and he did not verify his complaint made against plaintiff and he did not remember whether any complaint was made by the Central Pollution Control Board against Dharma Automobiles and also he did not received any complaint from in­charge from Maternity Center, Karawal Nagar, regarding any noise or air pollution caused by the plaintiff. DW1 stated that he did not remember whether any complaint was made by local RWA against plaintiff and he cannot say whether main road Karawal Nagar is 100% commercial, however there were certain commercial establishments at main road Karawal Nagar. DW1 also stated that he was not aware whether repair works were exempted from seal activity in view of the judgment of Hon'ble Supreme Court of India passed in M.C. Mehta Suit No.463 /19 Page 12 of 22 Vs. Union of India & Ors. in WP (Civil) 4677/85 and the nature of repair work was not clear to him. DW1 further stated that SDM can seal any un­ authorized industrial establishment in his jurisdiction and at the time of sealing he used to take the officials of Delhi Police, Delhi Jal Board, BSES alongwith him. DW1 deposed that no prior notice is required for sealing in a given premises in view of direction of Hon'ble Supreme Court of India in case of M.C. Mehta Vs. Union of India & Ors. However, he also admitted that he was not aware of any direction of Hon'ble Supreme Court of Indian in case of M.C. Mehta Vs. Union of India & Ors.: 134(2006) DLT 472 (SC). DW1 further deposed that out of total industries sealed by him, few were running without water supply from DJB and industrial unit can run even without electricity supply like industries manufacturing trunks, stitching work, book binding etc. DW1 stated that he had only sealed one workshop of the plaintiff and that was the first sealing in his tenure as SDM, Seelampur, Delhi. DW1 also stated that he had called report from Patwari before sealing the premises of plaintiff. DW1 further stated that the machinery found in the running condition at the spot was mentioned in sealing order Ex.PW2/A and as per said order no machinery was found in the suit premises which was constructed upto ground floor uptil 12 feet roof only. However, ld. counsel for plaintiff suggested to DW1 that there was no roof at the height of 12 feet in the suit property and the part of suit premises was covered by tin shed. DW1 admitted that no manufacturing work was carried out in the workshop of plaintiff and only repairing work was going on. DW1 also stated that denting and painting machine was found in the suit premises but same was not sealed as it was removed by the owner. DW1 further stated that he cannot tell whether any Suit No.463 /19 Page 13 of 22 painting work could be carried out without any electricity supply and he did not record the fact of removing of denting and painting machine by the owner nor had same been mentioned in his pleadings or to the court or the monitoring committee. DW1 also stated that verbal instructions were given by him to remove denting and panting machine or any other equipment which he wanted to remove. DW1 deposed that he asked the plaintiff to remove car and scooter from the premises but he refused and no permission was given in writing by DW1. DW1 admitted that no inventory of auto repair tools was prepared by him. DW1 negated the suggestion of plaintiff as to no industrial unit was functioning in the suit premises either on 03.05.2008 or before or he had wrongfully sealed the suit premises at the instance of Rakesh Kumar Sharma, Son in law of Om Prakash Sharma, owner of suit property or he had disobeyed the standing order of the Government. DW1 admitted that no manufacturing machine was found or any machine which could be operated electrically was found at the shop of plaintiff for repairing cars. However, DW1 negated the suggestion of plaintiff as to no auto repair tools were found on the spot.

9.2 The plaintiff has sought a decree of declaration in his favour thereby declaring sealing order bearing no. SDM/Ne/2007/2112­13 dated 03.05.2008 issued by defendant SDM as null and void ab initio and without any legal force. The burden of proof in respect of aforesaid issue was on the plaintiff only to prove as to how the act of defendant SDM was illegal and therefore, null and void ab initio. However, plaintiff could not prove as to how his repairing work of scooter/motorcycles/cars at suit premises in the name and style of Dharma Automobiles was not causing any noise or air pollution.

Suit No.463 /19 Page 14 of 22

Plaintiff admitted in his cross­examination that some maternity centre was situated near to the suit property in the given area. However, plaintiff has claimed that he was repairing alleged minor defects of car engine like self and alternator problem in the car engine. It was also suggested by the defendant during cross­examination of plaintiff that even for said rectification in the engines of car, the electricity is required and he was also carrying out denting/painting of cars and scooter in the said suit premises. The plaintiff had denied said suggestions. However, plaintiff could not convince the court as to how he was doing car repair work at suit premises without any electricity or water and that too without causing any pollution including noise and air pollution in given area. It is judicially noticeable fact that generally any repair work of engine of any motor vehicle having battery and engine oil cannot be said to be done without causing pollution of any type particularly in densely populated area of Delhi. On other hand, defendant SDM admitted that he had issued the said sealing order dated 03.05.2008 in respect of workshop of plaintiff on receiving complaint of pollution against said workshop in the office of Dy. Commissioner (North­East) from monitoring committee appointed by the Hon'ble High Court of Delhi. Defendant SDM (DW1) also stated that the letter of said monitoring committee dated 16.10.2007, a complaint dated 27.09.2007 of resident of Karawal Nagar was also forwarded therewith. It is noticeable that in said complaint, the complainant had claimed that there was noise pollution due to denting/painting of vehicle and air pollution due to repair of diesel/ petrol vehicles. DW1 further stated that there was a bad effect on the health of new born babies as well as old aged Suit No.463 /19 Page 15 of 22 persons due to noise and air pollution caused by the said workshop in nearby maternity centre, which was situated just opposite to the workshop of the plaintiff. DW1 had stated in his WS that the monitoring committee had sought action taken report in the matter in its letters addressed to DC (North East) dated 22.01.2008, 12.02.2008 and 25.04.2008 and DC (North­East) also recorded on these letter that action should be taken and report should be submitted. Finally, defendant SDM has stated on the basis of those complaint and the report of Tehsildar (Seelampur) and directions of Hon'ble Supreme Court of India regarding sealing of Industries involved in air/water/noise pollution, the said workshop of the plaintiff was sealed on 03.05.2008. Hon'ble Allahabad High Court in the Municipal Board Vs. B. Mangli Lal: AIR 1952 ALL 554 quoted following authorities on Malice motive of alleged wrong doer and reasonable and probable cause for the action in question and same are reproduced as under:­ "13. In Braja Sunder Deb Vs. Bambed Das, 1941 All L.J. 137 the Privy Council held that malice means a wrong or indirect motive and a prosecution is not malicious merely because it is inspired by anger, and both malice as well as want of reasonable and probable cause were necessary before a claim for damages for malicious prosecution could be decreed.

14. In J.B. Lister Vs. Henry Perryman, (1869 70) 4 E. & lr. A. C. 521 at p. 531 Lord Chancellor (Lord Hatherley) observed:

" What is now to be decided is this, how far this gentlemen, having this information conveyed to him, may be said to have reasonably and discreety trusted his informant ........ Information given by one person of whom the party knows Suit No.463 /19 Page 16 of 22 nothing, would be regarded very differently from information given by one whom he knows to be a sensible and trustworthy person. And the question whether or not a reasonable man would or would not act upon the information must depend in a great degree upon the opinion to be formed of the position and circumstances of the informant, and of the amount of credit which may be due under those circumstances to the person who thus conveyed the information."

In this situation how plaintiff can claim that the defendant SDM has sealed his said premises with malafide intent and without any legal basis in view of the action taken report sought from him by his senior authority i.e. DC on the complaint forwarded by the monitoring committee constituted on Court's order. Further, the court has to presume the said sealing order of defendant SDM and official communication between monitoring committee and DC concerned genuine as per Section 79 of Indian Evidence Act, 1872.

It has also been stated by the plaintiff in his plaint itself that in Karawal Nagar, there were around 50 shops carrying out the job of auto workshop and the said shops are also using electricity and water supply for the services of repairs, denting, painting etc but defendants had not stopped such activity or sealed such premises concerned except the premises of plaintiff. Here too, the plaintiff can't claim that it is only his auto workshop which was being run without any electricity or water and therefore, his workshop was incapable of causing any air or noise pollution. Further, plaintiff can't plead with any legal justification as to since other pollution causing auto workshops Suit No.463 /19 Page 17 of 22 had not been sealed and therefore his workshop could also not have been sealed by the competent authority as per the direction of Hon'ble Supreme Court or Hon'ble High Court for closure of pollution causing industries in residential area of Delhi. It is noticeable that a wrong doer cannot take legal defence as to he cannot be subjected to legal action mere on the ground that other wrong doer has not been caught for any reason. It is also noticeable that an auto workshop might not have official electricity or water connection from supplying body but that does not mean same could not have unauthorized supply of same or even otherwise it cannot claimed that it can't cause pollution of any kind in given area ipso facto. Defendant SDM further stated that denting and painting machines were removed from the auto workshop in question by the plaintiff as per his verbal instructions. The plaintiff also failed to establish as to how his auto workshop was in exempted category of industry or it was confirming the criteria for the same and how defendant SDM was not legally capable to seal his auto workshop particularly in view of complaint of pollution and action taken report sought by DC concerned at the insistence of monitoring committee formed by Hon'ble Delhi High Court for sealing prohibited industries in a residential area. It is noticeable plaintiff has not claimed that he has any license or legal permission from MCD and other competent authority for running any such auto workshop at the suit property and he has been complying rule and regulations meant for checking pollution particularly in residential area of National Capital. Ld. counsel for plaintiff contended that plaintiff has constitutionally granted right to livelihood and defendant had deprived him from said right illegally. However, the plaintiff cannot claim absolute Suit No.463 /19 Page 18 of 22 freedom of his choice of livelihood without due compliance of relevant rules and regulations and directions of the courts or competent authorities on any given aspect governing such source of livelihood and right to pollution free environment is also fundamental right of neighbours and residents of given area and also same is treated at higher pedestal than right to livelihood. In this situation, this court of considered view that the plaintiff could not discharge his burden of proof in respect of issue no. 1 and hence same is decided against him and in favour of defendant.

Issue no. 2 :

Whether the plaintiff is entitled for the decree of mandatory injunction as prayed? OPP.
10. Since, issue no. 1 has been decided against the plaintiff and in favour of defendant, this court also decides that plaintiff is not entitled for the decree of mandatory injunction for giving direction to the defendant to remove the seal put on the suit property by the defendant SDM in view of action taken report sought by DC concerned on said letter of monitory committee on the complaint of resident of Karawal Nagar against the pollution caused by the workshop of the plaintiff.

Accordingly issue no. 2 is decided against plaintiff and in favour of defendant.

Issue no. 3 :

Whether the plaintiff is entitled for the decree of permanent injunction as prayed? OPP
11. In view of said decision of the court in respect of issue no. 1 and 2, Suit No.463 /19 Page 19 of 22 this court cannot grant any decree of permanent injunction whereby defendant could be restrained from causing any hindrance to the plaintiff in carrying out his business of auto workshop at suit premises. The court, therefore, also decides issue no. 3 against the plaintiff and in favour of defendant.

Issue no. 4 Whether the suit of the plaintiff is not maintainable in the present form? OPD.

12. Hon'ble Supreme Court of India in M.C. Mehta Vs. Union of India, 127 (2006) DLT 226 (SC) issued various directions for sealing the premises on account of misuse of residential premises against relevant bylaws and also constituted a monitoring committee for overseeing the implementing it's order. The Hon'ble Supreme Court of India in order dated 11.05.2006, in said case directed as under :­ "Be that as it may, we reiterate that no Court other than this Court will have any jurisdiction to make any order of de­sealing the premises sealed under the order of this Court"

Hon'ble Delhi High Court in Carma Arts and Crafts Pvt. Ltd Vs. MCD 139 (2007) DLT 671 observed as under while dealing with issue of sealing of premises on the direction of Hon'ble Supreme Court of India.
"11. Learned Senior Counsel appearing for the petitioner vehemently contends that the Monitoring Committee constituted by the Hon'ble Supreme Court as per the directions contained in the order dated 16.2.2006 was only expected to deal with the Suit No.463 /19 Page 20 of 22 residential premises which were being misused and had no concern with unauthorized construction. He accordingly submits that the Monitoring Committee ought not to have dealt with the matter at all. Further, since the Monitoring Committee lacks jurisdiction, the order dated 11.5.2006 of the Hon'ble Supreme Court forbidding any other Court from dealing with the matter cannot apply in the present case. Learned Senior Counsel for the petitioner further urged that the Monitoring Committee erred in ignoring the evidence placed on record before it to support the contention that the petitioner was in continuous commercial use of the property in question even prior to 1962."

14. "Notwithstanding the repeated submissions by the learned Senior Counsel for the petitioner that this Court's jurisdiction under Article 226 can never be ousted, this Court is barred (sic. Bound) to abide by the above mandatory direction issued by the Hon'ble Supreme Court in its order dated 11.05.2006. Such orders are traceable to the plenary power of the Hon'ble Supreme Court under Article 142 of the Constitution of India. It is not possible for this Court, therefore, to entertain this write petition. The writ petition is accordingly dismissed on the ground of maintainability. Consequently, the application is dismissed. This will not preclude the petitioner from approaching the Hon'ble Supreme Court for relief." It is noticeable that plaintiff had not claimed that he had approached either Department of Industries, Govt of NCTD, said monitoring committee or Hon'ble Supreme Court of India for de­sealing his workshop in question, which was sealed by defendant SDM on being asked by DC concerned for action taken report in respect of the workshop of the plaintiff in view of letter of monitoring committee dated 22.01.2008. It is noticeable that the Gazette notification dated 30.01.2008 Ex.DW1/A relates to suspension of punitive action in respect of encroachment/ unauthorized development Suit No.463 /19 Page 21 of 22 referred to Section 3 of National Capital Territory of Delhi Laws (Special Provisions) Act, 2007 upto 31.12.2008 and action as per relevant laws shall continued to taken by local authorities in respect of other categories of encroachment and unauthorized development. In present suit it has been consistent stand of defendant SDM that he has sealed the suit premises while taking action on the complaint of causing pollution by the workshop of plaintiff, which was forwarded by monitoring committee to DC concerned for appropriate action. In this situation said Gazette notification does not apply to the case of plaintiff. In view of said discussion, the Issue no. 4 is accordingly decided in favour of defendant and against plaintiff.

Issue No. 5

Relief.

13. In view of aforesaid discussions of facts and circumstance and the relevant laws, this court is of considered view that there is no legal justification for this court to set aside the sealing order of defendant SDM in respect of the suit premises of plaintiff wherein auto workshop was being run and consequently the plaintiff cannot be granted any relief as prayed by him in the plaint. The suit, is, accordingly, disposed of as being dismissed. Decree sheet be prepared accordingly. File be consigned to record room after necessary compliance.

Rakesh Digitally signed by Rakesh Kumar Kumar Rampuri Date: 2021.01.27 Rampuri 03:39:46 +0530 Announced in the open court (Rakesh Kumar Rampuri) on this 27th day of January 2021. ASCJ/JSCC/G. Judge(East) Karkardooma Courts, Delhi.

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