Delhi District Court
Village Pul Prahladpur Jan Kalyan ... vs . Dda & Ors. on 30 October, 2012
Village Pul Prahladpur Jan Kalyan Samiti (Regd.) vs. DDA & Ors.
IN THE COURT OF INDER JEET SINGH, ADDL. DISTRICT JUDGE03,
ROOM NO. 308, SOUTH DISTRICT, SAKET COURTS, NEW DELHI
In the matter of
CA No. 13/2012
M
Village Pul Prahladpur Jan Kalyan Samiti (Regd.),
R35/B/2, Pul Prahladpur, M.B. Road, New Delhi.
Through its President Shri Krishan Gopal Gupta
...... Appellant
Versus
1. Delhi Development Authority,
Vikas Sadan, INA, New Delhi.
Through its Vice Chairman.
2. Executive Engineer (S.W.D5),
Delhi Development Authority,
Sarita Vihar, New Delhi.
3. Station House Officer,
Police Station Pul Prahladpur,
New Delhi.
...... Respondents
Appeal Presented on : 26.10.2012
Date of Institution : 26.10.2012
Date of Decision : 30.10.2012
MCA No. 13/2012 Page 1 of 8
Village Pul Prahladpur Jan Kalyan Samiti (Regd.) vs. DDA & Ors.
JUDGMENT
(on appeal under order XLIII CPC)
1. The appellant Village Pul Prahladpur Jan Kalyan Samiti (Regd.) filed Suit for Declaration (to declare that denial of burning of effigy of Ravan and others is null and void), Mandatory (to direct the defendants to allow burning of effigy of Ravan and others at the permitted place) and for Permanent Injunction to carry such activities perpetually every year. An application under order XXXIX Rules 1 and 2 CPC was also filed before the Trial Court to direct the defendants / respondents to allow appellant's association to burn effigy of Ravan and others at the permitted place - DDA Ground, Surajkund Road, Pul Prahladpur, New Delhi on any day till 27.10.2012, however, by order dated 26.10.2012, the appellant's request was declined and application under order XXXIX Rules 1 and 2 CPC was dismissed by the Court of Shri Raj Kumar Tripathi, Ld. Senior Civil Judge cumRent Controller, South, Saket, New Delhi. The Trial Court concluded, firstly, last year a Suit No. 484/2011 was filed and by order dated 29.09.2011 by its Predecessor, restrained the private party and the present appellant herein, from burning effigy of Ravan and others on the occasion of Dusshera on DDA ground; secondly, appellant applied for temporary MCA No. 13/2012 Page 2 of 8 Village Pul Prahladpur Jan Kalyan Samiti (Regd.) vs. DDA & Ors. allotment of DDA land for religious function and by letter dated 21.08.2012, the approval was granted for organizing Ram Leela on the ground / alloted land (i.e. 1000 sq. meter, vacant land) at Pul Prahladpur, Surajkund Road, New Delhi, with specific condition that no effigy burning is permitted on Dussehra Day, the appellant gave an undertaking to comply the terms and conditions and undertaking was accepted, therefore, the appellant was bound by terms and conditions of permission furnished before conducting the religious function and there was nothing on record or material changes in circumstances from the earlier order dated 29.09.2011 till date and lastly, life and safety of public is also important and for these reasons, no prima facie case was found by the Trial Court and the application was dismissed. 2.1 The appellant assails the impugned order dated 26.10.2012 that it is against law, facts and it has result into gross miscarriage of justice; the same has been passed under assumptions and presumptions. The licensing branch of Delhi Police had already granted permission to burn effigy of Ravan and others, therefore, denial by Delhi Development Authority / respondent no. 1 is illegal and Trial Court failed to appreciate that Ram Leela, completes after burning of effigy of Ravan and others, a necessary tradition. The appellant could not noticed, by oversight the condition MCA No. 13/2012 Page 3 of 8 Village Pul Prahladpur Jan Kalyan Samiti (Regd.) vs. DDA & Ors. imposed by respondent no. 1 / DDA that effigy burning is not permitted by granting the permission.
2.2 During the course of arguments, similar contentions have been advanced that firstly, the place of high tension wire overhead the park is away from the proposed place where effigy is to be burned; secondly, the Ram Leela remains incomplete till effigy of Ravan and others are burnt, being tradition to demonstrate victory of truth over the evil; and thirdly, it is concerned with the emotions and sentiments of public, who attended the other days in Ram Leela regularly, they are still carrying an impression in their subconscious mind that they could not celebrate the Dussehra. The appellant will comply all the conditions to be directed by the Court. Lastly, the appellant has been performing / organizing Ram Leela for the last about 20 years as per permission and no untoward incident happened, as all norms were observed.
Considering the submissions on behalf of respondents no. 1 and 2, report of respondent no. 3 that proposed spot of burning effigy is around 440 feet away from the place having overhead high tension wire. The principle of resjudicata does not apply, since each year, occasion for celebrating Dussehra comes and there is a separate cause of action from MCA No. 13/2012 Page 4 of 8 Village Pul Prahladpur Jan Kalyan Samiti (Regd.) vs. DDA & Ors. the earlier suit bearing No. 484/2011 nor the impugned order dated 29.09.2011 therein, can be construed resjudicata. Apparently, the provisions of Order XLI has been cited in place of Order XLIII CPC, however, the impugned order is appealable, therefore, appeal cannot be treated premature. The Court may consider the pleadings appropriately in terms of Order XLIII CPC.
2.3 Whereas the respondent no. 3, through SI Narasi Prasad furnished detailed report, inclusive about the distance from proposed spot of burning effigy is around 440 feet away from the place having overhead high tension wire. However, there is no fixed spot earmark for burning the effigy. It is submitted that respondent no. 3 will comply the directions, whatsoever to be given by the Court.
2.4 Whereas the respondents no. 1 and 2 opposed the appeal, firstly, correct provisions of law has not been mentioned and the substance of appeal is against the decree / final judgment, therefore, the appeal is pre mature; secondly, the appellant has concealed about the previous Suit No. 484/2011 as well as order dated 29.09.2011, wherein the appellant was restrained from burning the effigy, it attained finality and it was never MCA No. 13/2012 Page 5 of 8 Village Pul Prahladpur Jan Kalyan Samiti (Regd.) vs. DDA & Ors. challenged, therefore, principle of resjudicata applies. The appellant was not permitted to burn effigy of Ravan and others, as a condition in the permission dated 21.08.2012, it was accepted by the appellant, now they have no locusstandi to file the suit or the appeal. There is no infirmity or flaw in the impugned order. Otherwise, permission to burn the effigy would also tantamount to decree the suit. The appeal is liable to be dismissed. (3) FINDINGS The contentions are assessed in the light of record, inclusive of Trial Court record available and the provisions of law. 3.1 The appellant filed appeal under order XLI CPC, challenging the impugned order dated 26.10.2012 in respect of dismissal of its application under order XXXIX Rules 1 and 2 CPC. Whereas correct provisions of law is under order XLIII CPC, since orders under order XXXIX Rules 1 and 2 CPC are appealable. Therefore, considering that appeal was drafted in haste because of paucity of time, the material is being considered from the purview of Order XLIII Rule 1(r) CPC.
MCA No. 13/2012 Page 6 of 8 Village Pul Prahladpur Jan Kalyan Samiti (Regd.) vs. DDA & Ors. 3.2 For the following reasons, the appeal is dismissed
(a) the appellant has been permitted to perform Ram Leela but there was a condition in the permission dated 21.08.2012 that no effigy burning is permitted on Dussehra day and appellant never requested the respondents no. 1 and 2 after such conditional permission, to review such condition;
(b) the appellant accepted the terms and conditions of permission by filing appropriate undertaking and affidavit;
(c) what is not within the scope of permission, cannot be fulfilled by way of present appeal nor it is open to say that because of oversight, the condition was not noticed, as in appellant's letter dated 22.10.2012 to respondents no. 1 and 2, it is clearly mentioned that permission was not given for burning of effigy of Ravan or others;
(d) the emotions, feelings and sentiments of people may have reverence, however, the same are not tenable in view of specific condition for organizing Ram Leela that no effigy is permitted on Dussehra day; and
(e) there is no flaw in the findings returned by the Trial Court on the basis of material / record placed before it.
Accordingly, the appeal is dismissed.
Trial Court record along with copy of judgment be sent to the Trial Court, however, any observation given in the present judgment, would MCA No. 13/2012 Page 7 of 8 Village Pul Prahladpur Jan Kalyan Samiti (Regd.) vs. DDA & Ors. not tantamount to be final opinion on the merits of the case, since the Trial Court has to conduct the trial and evidence and Trial Court will dispose off the matter as per law, without keeping reflection of the reasons of this judgment in its mind.
Both the parties will bear their own costs.
File be consigned to record room.
Announced in the open Court (INDER JEET SINGH)
th
on 08 Kartika, Saka 1934 Additional District Judge03,
South District, Saket Courts,
New Delhi / 30.10.2012
N
MCA No. 13/2012 Page 8 of 8
Village Pul Prahladpur Jan Kalyan Samiti (Regd.) vs. DDA & Ors.
MCA No. 13/2012
30.10.2012
Appearance : Appellant with counsel.
Counsel Shri P.M. Bhatt, Advocate for DDA / respondents no. 1 and 2, Vakalatnama is filed.
SI Narasi Prasad from Police Station Pul Prahladpur / respondent no. 3. Report is filed in the form of application.
Trial Court record is received.
Appeal is heard.
Vide separate judgment, announced today, the appeal is dismissed.
Trial Court record along with copy of judgment be sent to the Trial Court, however, any observation given in the present judgment, would not tantamount to be final opinion on the merits of the case, since the Trial Court has to conduct the trial and evidence and Trial Court will dispose off the matter as per law, without keeping reflection of the reasons of this judgment in its mind.
Both the parties will bear their own costs.
File be consigned to record room. Dasti copy is allowed.
(Inder Jeet Singh)
Addl. District Judge03, South District,
N Saket/30.10.2012
MCA No. 13/2012 Page 9 of 8