Delhi District Court
Pt.Srinath Sharma vs Municipal Corporation Of Delhi on 15 May, 2009
IN THE COURT OF SHRI SANJEEV JAIN :ADDITIONAL
DISTRICT JUDGE: DELHI (CENTRAL DISTRICT)
RCA No.38/04
Date of Institution: 20.08.04
Final Arguments heard on : 21.04.09
Date of Decision: 15.05.09
1.Pt.Srinath Sharma
son of Sh.Janak Singh
r/o 8653, Sham Bhawan,
New Rohtak Road, Opp.D.C.M.
School, Delhi
2.Sh.Rakesh Sharma
s/o Sh.Dev Dutt Sharma
r/o 8653, Sham Bhawan,
New Rohtak Road, Opp.DCM
School, Delhi.
... Appellants
Vs.
1.Municipal Corporation of Delhi
through its Commissioner,
1
Town Hall, Chandni Chowk,
Delhi.
2.Shri Lajpat Raiseds/oSh.Lachhman Dass,
r/o 67/9, New Rohtak Road,
New Delhi.
3.Shri Wilayati Ram,
s/oSh.Lachhman Das,
r/o 67/9, New Rohtak Road,
New Delhi.
...Respondents.
JUDGMENT
1 This appeal has been preferred by appellants against judgment and decree dt.29.7.04 passed by the court of Ld.Civil Judge, Delhi in suit no.970/2000 titled Sh.Lajpat Rai & Another Vs. Municipal Corporation of Delhi & Others.
2 The brief facts relevant for the disposal of the appeal are as 2 under:
In suit for perpetual and mandatory injunction plaintiff prayed that defendant no.1 to 3 be restrained from making any construction on the footpath and by way of mandatory injunction, directing them to demolish the platform already constructed on the footpath around the Peepal Tree.
As per the case of the plaintiff, they are the real brothers and joint owners of house no.67/9 New Rohtak Road, Delhi. The plot of house no.67/9 was purchased in the year 1960 and the house was built built in 1962. Footpath which is 20' wide is just out side the house of the plaintiffs. There is an old Peepal Tree on the said footpath. Defendant no.2 and 3 being in close relations of defendant no.1 constructed a pakka platform around the Peepal tree despite objections raised by the plaintiffs. Defendant no.2 and 3 placed few 3 photos of Hindu Gods along with the side wall of the house and made canopy tree to give it the shape of temple. On the resistance of plaintiff, defendant no.2 and 3 removed the statues of God from the side of the wall and placed it on the other side on the platform. It is alleged that plaintiff have started collecting money from the public to raise the constructions around the Peeple Tree. Defendants have also installed a loudspeaker and starting playing religious songs in morning and evening times.
As per the plaintiff case, defendant no.2 and 3 have encroached upon the public land and attempted to construct a temple around a Peeple Tree by collecting money from the public. As per the plaintiff's case, the unauthorized construction was demolished by MCD. The grievance of the plaintiff was that due to the unauthorized encroachment around the Peeple Tree, construction of temple and 4 other activities of defendant no.2 and 3, the entrance and exist to their house has been disturbed and the plaintiff are not able to enjoy their property without hinderence.
3 Defendant no.2 and 3 alleged in their written statement that plaintiffs have no right, title or interest in the suit; defendants are in use and occupation of the place in dispute since a long time; defendant no.2 and 3 are the worshipers of statue of Lord Hanuman; plaintiffs have installed the gates of their house on the pavement against building byelaws; that the Peeple Tree and construction around it is not the personal property of defendant no.2 and 3 and belongs to the public and that pakka platform around the Peeple Tree came into the existence much prior to the construction of house of plaintiff.
5 4 Defendant/MCD also file the written statement, alleging that suit is barred under sec.477/478 of MCD Act; that suit is not maintainable in view of section 41(h) of Specific Relief Act; plaintiff has suppressed the material facts and has not come to the court with clean hands; that plaintiff has no locus standi to file the suit; that no cause of action has arisen against MCD. It was stated by MCD that small platform around the Peepal Tree is already in existence since long and is very old. It was admitted that some unauthorized construction beyond the platform was carried out which was removed by the MCD on 14.5.86. It was also stated that MCD not only stop the construction, but also removed the encroachment as well as the construction illegally raised around the Peeple Tree. 6 5 On the basis of pleadings and material on record following issues were framed by the Ld.Trial Court.
1. Whether the plaintiff is entitled to the relief of permanent and mandatory injunction?(OPP)
2. Whether the plaintiff has not come to the court with clean hands?(OPD2 and 3)
3. Whether the suit is not maintainable for want of statutory notice under Section 478 of DMC Act(OPD1)
4. Relief.
6 In plaintiff evidence PW1 Sh.Walaiti Ram, PW2 Sh.Nawal Kishore and PW3 Smt.Lajja were examined. Defendants had examined D1W1 Sh.Sunil Mohan Gupta, D2W1 Shri Nath Sharma and DW2 Sh.Rakesh Singh.
7 7 Appeal has been filed mainly on the following grounds.
a) That Ld.Trial court has failed to exercise its jurisdiction properly.
b) That judgment is based on conjuncture and surmises and is against the established law and facts of the case.
c) That testimony of PW1 Sh.Walaiti Ram could not have been relied as it was not completed.
d) That without notice under sec.478 of DMC Act, the suit is not maintainable.
e) That Trial court failed to appreciate the testimony of witnesses, who deposed that Peeple Tree and platform around it were in existence since long.
f) That Ld.Trial Court failed to appreciate that no sanctioned site plan pertaining to the house of the plaintiff was produced before the 8 court.
g) That Ld.Trial Court failed to appreciate that gate of the house of the plaintiff was at a distance of 2025' away from the Peeple Tree.
h) That Ld.Trial Court failed to appreciate that initially there was only one gate to the house of plaintiff and other two gates were opened by them unauthorizedly without any sanctioned plan. I) That in the grab of mandatory injunction, plaintiff has prayed for the relief of declaration.
j) That Ld.Trial Court failed to consider that property in dispute was not the personal property of defendant no.2 and 3, but belongs to the general public.
k) That Ld.Trial court has wrongly relied on the testimony of DW1 Sh.Sunil Mohan Gupta.
l) That despite the fact that plaintiffs failed to establish the relevant 9 time of alleged construction of Peeple Tree chabutra, the suit was decreed in their favour.
8 I have heard the Ld.counsels for parties and carefully gone through the record.
9 Ld.counsel for appellants mainly submitted that Peeple Tree or the chabutra constructed around it does not belong to the appellants and they are performing their duties only as devotees. Ld.counsel for appellants submitted that Peeple Tree and chabutra around it are in existence since a long time and is no hinderence to the ingress or outgress to the property to the property of plaintiffs. It was submitted that suit has been decreed by the Ld.Trial Court while relying on the testimony of PW1 Sh.Waliti Ram, whose testimony could not be read 10 in evidence. It was pointed out that testimony of PW1 Sh.Walaiti Ram could not be completed as he failed to appear for his cross examination.
9 During the pendency of appeal, one application was filed by appellants under section 91 of Code of Civil Procedure. Another application was filed under order 6 rule 17 CPC. In both the applications, similar contentions was raised. It was submitted that plaintiff has filed the suit pertaining to the public nuisance. As per section 91 of CPC, in a suit of public nuisance, the suit could have been entertained only with the leave of the court, but no such leave was recorded by the Ld.Trial Court. Ld.counsel for appellants submitted that in view of section 91 of CPC, the suit was not maintainable, therefore, appellants be allowed to amend their written 11 statement by incorporating a preliminary objections in this effect. 10 Replies were filed by the respondents to these applications. The material contents of the applications were denied. It is submitted that application are not maintainable. ld.counsel for respondents contended that section 91 is not applicable in the facts and circumstances of the case.
11 I have carefully considered these two applications, contentions of Ld.counsels for parties and the material on record. 12 The main case of the plaintiff was for the relief of perpetual and mandatory injunction. The grievance of the plaintiffs was that due to the construction of chabutra around the peeple tree, unauthorized 12 construction, installation of loudspeaker and other activities of appellants, they are not able to enjoy their property peacefully and ingress and outgress to their own property has been obstructed. 13 Section 91 of CPC is reproduced here below for reference:
91.Public nuisance (1) In the case of a public nuisance or other wrongful act affecting, or likely to affect, the public, a suit for a declaration and injunction or for such other relief as may be appropriate in the circumstances of the case, may be instituted,
(a) by the AdvocateGeneral, or
(b) with the leave of the Court, by two or more persons, even though no special damage has been caused to such persons by reason of such public nuisance or 13 other wrongful act.
(2) Nothing in this section shall be deemed to limit or otherwise affect any right of suit which may exist independently of its provisions.
14 In Harkishan Vs. M/s.Jain Fertilizers Traders 1994(1) P.L.R. (Delhi) 30, it was held by Hon.High Court of Delhi that, "if a particular right to sue arises in favour of a particular person, even if there is public nuisance such right to sue in private capacity is not affected by provisions of section 91(1) of CPC. Blockage of passage to a shop involves infringement of private right of the owner of the shop as well as public nuisance. Private suits for mandatory injunction is 14 not bar rather it is specifically saved under sub section 2 of Section 91 itself".
Another case on the subject, which may be referred is Baldev Singh Chahal Vs. Mohan Lal Gulati 2000(1) P.L.R. 265. In this case, it was held by Hon.High Court of Punjab & Haryana.
"Suit for injunction restraining the defendants from obstructing the use of public street by plaintiff, is a suit for enforcement of his individual right, not to a remedy affecting the public as envisaged under section 91 CPC. Suit for perpetual injunction under section 38 Specific Relief Act is not affected by section 91 CPC".
15 It is clear from the testimony of witnesses and pleadings on 15 record that case of the plaintiff is that due to unauthorized construction around the Peeple Tree, his rights towards the enjoyment of his own property are obstructed/affected. In the context of the present case, in my view plaintiffs are not enforcing a right on behalf of the general public. Plaintiffs has come to the court to seek the relief of perpetual and mandatory injunction to protect their individual rights relating to the enjoyment of their own property. After careful consideration, in my opinion, even if the activities of present appellants comes within the category of public nuisance, the suit is not barred under section 91(1) CPC, rather it is saved under section 91(2) CPC itself. In my view, the applications under section 91 CPC and under order 6 rule 17 CPC filed by the appellants are without any merit as section 91 of CPC does not bar the maintainability of the suit. Both these applications deserves 16 dismissal.
16 After careful consideration, I find some force in the contentions of Ld.counsel for appellants that testimony of PW1 Sh.Walaiti Ram could not be read in evidence as the same was not completed due to absence of PW1 for his cross examination. Even if the testimony of PW1 is excluded, testimony of PW2 and 3 proves the material averments of the plaint, who have deposed consistently in support of the plaintiffs case. Testimony of PW2 and PW3 could not be impeached on material aspects.
17 Ld.Trial Judge has decided the issue no.1 pertaining to the relief claimed by the plaintiffs after carefully going through the testimony of witnesses. Even if the testimony of PW1 Sh.Walaiti 17 Ram is not taken into consideration, the material observations of Ld.Trial Judge appears to be reasonable and logical. It has been established by way of evidence that the present appellants have not only raised the illegal construction around the Peeple Tree, but also make an attempt to encourage the public land around the Peeple Tree. This aspect has been supported by defendant/MCD. It has been established on record that when complaints were made, the unauthorized construction around the Peeple Tree and encroachments were removed by the MCD. It has also been established on record that temple activities are being run around the Peeple Tree by encroaching the public land and using the electricity unauthorizedly without getting an electricity connection. Question remains, whether any body may be allowed to encroach upon the public land to mis use the electricity without getting the electricity 18 connection and to mis use the public money on the name of religious activities. Whether anybody may be allowed to run the religious activities on public land by violating or infringing the civil rights of other occupants. In my considered opinion, the answer is in negative.
18 After careful consideration of material on record, I do not find any reliable evidence to believe that the temple around the Peeple Tree is in existence since a long time. Even if for the sake of arguments, it is in existence since a long time, the appellants can not run their activities by encroaching the public land in violation of the rights of other occupants of the locality as well as respondent no.2 and 3.
19 19 I do not find any force in the contentions of Ld.counsel for appellants that the pleadings or the testimony of witnesses has not been properly considered by the Ld.Trial Court. The impugned judgment clearly reveals that Ld.Trial Judge has taken pains to carefully scrutanise the testimony of witnesses and the documents proved on record. The findings of Ld.Trial Judge appears to be justified, reasonable and logical. Merely by the fact that due to over sight Ld.Trial Judge has relied the testimony of PW1 Sh.Walaiti Ram, it can not be said that impugned judgment suffers from any illegality and irregularity.
20 I do not find any merit in the contentions of Ld.counsel for respondent that suit was not maintainable in view of section 447 and 478 of DMC Act. The relief for perpetual injunction was also claimed 20 along with the relief of mandatory injunction. Keeping in view the urgent nature of the relief claimed in the suit for a relief of perpetual injunction, notice under sec.477/478 of DMC Act was not mandatory. Similarly, I do not find any merit in the contentions that sanction site plan was not proved by the plaintiffs, therefore, the merits of the case has been affected. From the pleadings and testimony of witnesses, it is not in dispute that house of the plaintiffs existed near the Peeple Tree and the chabutra around it. Even if no sanction plan was produced, it was admitted case of parties that Peeple Tree was very near to the entrance gate of the house of the plaintiffs. It has been established by the testimony of witnesses that due to the unauthorized encroachments and construction raised by the present appellants, the right of plaintiffs in respect of enjoyment of their own house are being affected.
21 21 The forum of courts can not be allowed to be misused in the name of religious activities by land grabbers and encroachers. if illegal activities of encroachment and unauthorized constructions are encouraged, there will be no end and to it which will not only be detrimental to the individual rights of the citizens, but will be a potential threat to the peace and harmony in the society as well as the rule of law.
22 In view of the above findings, in my opinion, the impugned judgment passed by the Ld.Trial Court does not suffer from any illegality or irregularity. Applications moved by the appellants under section 91 of CPC and under order 6 rule 17 CPC are devoid of any merit. Therefore, the applications under sec.91 of CPC and under 22 order 6 rule 17 CPC and the appeal is hereby dismissed. No order as to cost. Copy of the order be sent to the Ld.Trial Court or the Successor Court along with the trial court record. File be consigned to R/R after due compliance.
(SANJEEV JAIN) Additional District Judge:Delhi (Central District) Announced in open court on 15.5.09 23