Delhi District Court
Dinesh Kumar vs The Commissioner, Ndmc on 20 March, 2025
IN THE COURT OF SH. UMESH KUMAR,
JSCC-CUM- ASCJ-CUM-GUARDIAN JUDGE-02/CENTRAL,
TIS HAZARI COURTS/ DELHI
Suit No. 3350/16
CNR No. DLCT03-007433-2016
In the matter of:-
Dinesh Kumar
S/o Sh. Raj Narain,
Prop. of Dinesh Plastic Works,
R/o 1696, Pratap Gali,
Chuna Mandi, Pahar Ganj, New Delhi .....Plaintiff
Vs.
1. The Commissioner,
North Delhi Municipal Corporation of Delhi
Through Factory Licensing Department
At Dr. Shyama Prasad Mukherjee, Civic Centre,
12th Floor, J.N Marg, New Delhi-110002
2. The Chief Executive Officer
B.S.E.S, Chief Executive Officer
BYPL, BSES Bhawan,
Shakti Kiran Building, Karkadooma, Delhi
3. The Chief Executive Officer
Delhi Jal Board, Varunalaya,
Jhandewalan, Delhi ...Defendants
Date of institution of Suit : 23.12.2016
Date on which Judgment was reserved : 24.02.2025
Date of pronouncement of the Judgment : 20.03.2025
(SUIT FOR DECLARATION, PERPETUAL AND MANDATORY
INJUNCTION)
JUDGMENT
1. The present suit has been instituted by the plaintiff for the relief of declaration in favour of the plaintiff declaring the notice dated UMESH Digitally signed by UMESH KUMAR KUMAR Date: 2025.03.20 18:32:03 +0530 CS SCJ No. 3350/16 Dinesh Kumar Vs. The Commissioner, NDMC & Ors Page 1 of 21 08.12.2016 duly issued by defendant no.1 to the defendant no.2 and 3 as illegal, null and void. The plaintiff has sought a decree for perpetual injunction against the defendant no.1 for not issuing any such type of illegal notice against the plaintiff and restrained permanently the defendant no.2 and 3 from disconnecting the electricity and water connection of the plaintiff in view of the illegal direction by defendant no.1 to defendant no.2 and 3. The plaintiff has also sought a decree of mandatory injunction against the defendant no.1 with direction to continue the factory license of the plaintiff.
Plaintiff's Case
2. Pleaded case of the plaintiff is that the plaintiff is the owner of property bearing no. 2146, first floor, area 1200 sq. ft, Chuna Mandi, Paharganj, New Delhi. It is stated that the plaintiff was issued the license by defendant no.1 on 15.09.2016 and it was valid upto 14.12.2016 for running his business at the premises i.e. 2146, first floor, area 1200 sq. ft, Chuna Mandi, Paharganj, New Delhi (hereinafter referred to 'suit premises'). The plaintiff was using the electricity bearing CA No. 10053475 as well as water bearing no. K. No. 8515100000 for running his business after obtaining the same from defendant no.2 and 3 respectively. It is stated that the plaintiff has cleared all dues in time to defendant no.2 and 3 without any fail and nothing is due from the plaintiff to the defendant no.2 and 3 till date. It is stated that on 19.12.2016, the lineman of the defendant no.2 came and threatened for disconnecting the electricity bearing no. CA No. 10053475 on the Digitally signed UMESH by UMESH KUMAR KUMAR Date: 2025.03.20 18:32:13 +0530 CS SCJ No. 3350/16 Dinesh Kumar Vs. The Commissioner, NDMC & Ors Page 2 of 21 basis of notice dated 08.12.2016 issued by the Municipal Corporation through its department, factory licensing department. It is the contention of the plaintiff that the defendant no.1 has not issued any notice to the plaintiff till date and plaintiff and plaintiff also approaching the defendant no.1 for continuing his factory license to the defendant no.1, but plaintiff has not been heard by defendant no.1. It is stated that the plaintiff is running his business after purchasing very costly machinery from out of India for running his business. It is stated that the plaintiff was issued the factory license on 15.09.2016 after verifying all the formalities for issuing the license after passing of the judgment of Hon'ble Supreme Court of India by defendant no.1. It is stated that defendant no.1 has gravely erred in issuing the notice to the defendant no.2 and 3 for disconnection of electricity and water connection of the plaintiff without perusing the license of the plaintiff and the said act of the defendant no.1 is quite illegal. It is stated that the unit of the plaintiff does not come within the purview of the said judgment of Hon'ble Supreme Court of India to any extent whatsoever. It is stated that the plaintiff will suffer immense loss and irreparable injury if the notice issued by the defendant no.1 to the defendant no.2 and 3 is not withdrawn unconditionally. Hence, the present suit.
3. Summons of the suit were sent to the defendants which stood served upon all the defendants. Upon service of summons of the suit, the defendants contested the present suit of the plaintiff and written statement was filed on behalf of defendant no.1 and 2.
Digitally signedUMESH by UMESH KUMAR KUMAR Date: 2025.03.20 18:32:18 +0530 CS SCJ No. 3350/16 Dinesh Kumar Vs. The Commissioner, NDMC & Ors Page 3 of 21 Written statement of defendant No.1/ NDMC.
4. In the written statement filed on behalf of defendant no.1, it is stated that the suit is barred as no statutory notice under Section 477/488 of DMC Act was served upon the defendant. It is stated that during the routine inspection, the plaintiff was found running the industrial activities on the first floor, second floor and third floor of the property bearing no. 2146, Chuna Mandi, Paharganj, New Delhi without municipal licence in violation of MPD-2021 and also in contravention of the orders passed by Hon'ble Supreme Court of India in the case titled as 'M.C Mehta Vs. Union of India & Ors in WPC No. 4677/1985. It is stated that defendant has the right to issue notice dated 08.12.2016 for disconnection of electricity and water supply qua the property in question. It is stated that as per the record, it was found that earlier the plaintiff without following the procedural law for obtaining a licence had simply applied for factory licence for running the factory at first floor of the property, which was later on rejected vide order dated 20.09.2016 for non submitting the requisite documents. It is stated that the plaintiff is well aware about the rejection of licence. It is further submitted that the plaintiff has failed to supply the copies of documents relied upon by the plaintiff in the plaint. Finally the written statement prayed that there is no cause of action arise against the defendant no.1 same is liable to be dismissed under Order 7 Rule 11 CPC.
Written statement of defendant No.2/ BSES.
5. Written statement filed on behalf of defendant no.2/ BSES wherein UMESH Digitally signed by UMESH KUMAR KUMAR Date: 2025.03.20 18:32:26 +0530 CS SCJ No. 3350/16 Dinesh Kumar Vs. The Commissioner, NDMC & Ors Page 4 of 21 it is stated that the officials of the defendant no,.2 visited the premises of the plaintiff for disconnection of electricity in compliance with the notice / directions of defendant no.1, however, they were unable to do so as the plaintiff showed them the order of Hon'ble Court whereby the defendant was restrained to disconnect the electricity. The defendant no.2 has denied all the averments of the plaintiff made in the plaint and prayed that suit be dismissed with costs.
6. Defendant no.3 has not filed the written statement despite opportunities being granted.
7. Upon completion of pleadings, the following issues were framed vide order dated 17.09.2019 by the Court:-
(i) Whether the plaintiff is entitled for the relief of declaration injunction as prayed in the plaint?OPP.
(ii) Whether the plaintiff is entitled for relief of perpetual injunction as prayed in the plaint?OPP.
(iii) Whether the plaintiff is entitled for relief of mandatory injunction as prayed in the plaint?OPP
(iv) Whether the suit of the plaintiff is barred by the provision of Section 477/478 of the DMC Act for want of statutory notice?
OPD-2
(v) Relief.
Plaintiff's evidence
8. To prove its case, plaintiff examined himself as PW-1 and filed his evidence by way of affidavit which is Ex.PW1/X, and relied upon the UMESH Digitally signed by UMESH KUMAR KUMAR Date: 2025.03.20 18:32:32 +0530 CS SCJ No. 3350/16 Dinesh Kumar Vs. The Commissioner, NDMC & Ors Page 5 of 21 following documents:-
i) GPA Ex. PW1/1 (OSR)
ii) Provisional Factory License Mark A
iii) Electricity Bills dated 07.11.2016 & 05.12.2016 Ex. PW1/3
(OSR) (colly)
iv) Notice for disconnection of electricity and water supply
dated 08.12.2016 Mark B
v) Tax invoice dated 23.07.2014 alongwith booklet Ex. PW1/5
(OSR)
9. PW-1 was duly cross examined on behalf of defendant no.1, 2 and
3.
10. Defendant no.2/ BSES and defendant no.3 / DJB did not lead any defence evidence despite opportunity being given. Defendant no.1/ MCD also did not lead defence evidence despite opportunity being granted. Accordingly, right of the defendant no.1 to lead DE stands closed vide order dated 29.01.2025. Thereafter the matter was posted for final arguments.
Final arguments
11. During the course of final arguments, Ld counsel for plaintiff relied upon the exhibited documents of the plaintiff alongwith the deposition of PW-1 and prayed for a decree of the suit. On the other hand, counsels appearing on behalf of defendant no.1/MCD and defendant no.3/DJB prayed for dismissal of this suit. Defendant no.2/ BSES did not advance final arguments despite opportunity being granted. Accordingly, the right of the defendant no.2/ BSES to advance final arguments was closed vide order dated 24.02.2025 and opportunity was granted to file written UMESH Digitally signed by UMESH KUMAR KUMAR Date: 2025.03.20 18:32:37 +0530 CS SCJ No. 3350/16 Dinesh Kumar Vs. The Commissioner, NDMC & Ors Page 6 of 21 submissions.
12. Heard the arguments advanced by the Ld. Counsels for parties.
This Court has carefully perused the entire records in light of the pleadings of the parties and considered the oral submissions advanced by Ld. counsel for both the parties.
13. The issues are decided as under:-
Issue no. (i).
Whether the plaintiff is entitled for the relief of declaration injunction as prayed in the plaint?OPP.
14. The onus to prove the issues was upon the plaintiff.
15. As mentioned above plaintiff has sought a relief that the notice dated 08.12.2016 issued by defendant no.1 be declared as illegal, null and void, therefore it is only at the touch stone of the relief sought in conjunction with the pleadings it can be known if plaintiff has been able to reveal a cause of action. Therefore, it is inevitable to first appreciate the elements of Section 34 Specific Relief Act (hereinafter as 'SRA'):-.
Sec 34. Discretion of court as to declaration of status or right.--Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief: Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.
Digitally signedUMESH by UMESH KUMAR KUMAR Date: 2025.03.20 18:32:41 +0530 CS SCJ No. 3350/16 Dinesh Kumar Vs. The Commissioner, NDMC & Ors Page 7 of 21 Explanation.--A trustee of property is a "person interested to deny" a title adverse to the title of some one who is not in existence, and whom, if in existence, he would be a trustee.
16. Upon perusal of above section, it is quite clear that to obtain a relief of declaration the following pre-requisites needs to be met:-
(i) Entitlement to any legal character or to any right as to any property;
(ii) against any person denying or interested to deny title to such character or right to any property It is only that both these elements are present that a suit for declaration can lie. Further, the relief of declaration is a discretionary relief and under Section 34 of the Act, the discretion which the Court has to exercise is a judicial discretion. The discretion has to be exercised on well-settled principles of law. For seeking relief of declaration it is essential for the plaintiff to disclose that "legal right/character" denial of which is the bone of contention between the parties. The declaratory relief under Section 34 of SRA, 1963 is in the nature of equitable relief for granting of an already existing right which has been denied by the other party.
17. Now, adverting to the facts of the case, it is the grievance of plaintiff that defendant no.1 / MCD had granted him a license, Mark A, on 15.09.2016 which was valid till 14.12.2016 for running his business at property bearing no. 2146, first floor, Chuna Mandi, Paharganj, New Delhi, however, defendant no.1/ MCD issued a notice dated 08.12.2016 to defendant no.2 / BSES Digitally signed UMESH by UMESH KUMAR KUMAR Date: 2025.03.20 18:32:47 +0530 CS SCJ No. 3350/16 Dinesh Kumar Vs. The Commissioner, NDMC & Ors Page 8 of 21 and defendant no.3 / DJB for disconnecting electricity and water supply in the aforesaid property without giving him an opportunity of being heard.
18. Perusal of license, Mark A, shows that it is a 'Provisional Factory License' dated 15.09.2016 in favour of the plaintiff for 'photographs printing (including sign board printing)' at premises 'Shop No. 2146, Gali No. 1, Chuna Mandi, Paharganj, First Floor, SP Zone, Delhi-110055', which was valid till 14.12.2016. The said provisional license was issued to the plaintiff with a condition as mentioned thereupon i.e. 'This license is granted in pursuance to the provision of Section 416 /417 of the Delhi Municipal Corporation Act, 1957 as amended up-to date and is valid only for the person and particular specified herein subject to conditions stated hereunder', which clearly shows that the license was valid for the licensee only for the specific purpose as mentioned in the provisional license for a limited period.
19. By way of notice dated 08.12.2016 (Mark B) sent by defendant no.1/ MCD to defendant no.2 / BSES and defendant no.3/ DJB, disconnection of water and electricity supply of the industrial units, as mentioned in notice (Mark B), was proposed for the reason that industrial units were running in the residential / non confirming area without showing the valid municipal factory license in violation of Section 416/ 417/ 430/ 461 of DMC Act, 1957 and also in contravention of the orders of Hon'ble Supreme Court in case titled as 'M.C. Mehta Vs. Union of India & Ors in Digitally signed UMESH by UMESH KUMAR KUMAR Date: 2025.03.20 18:32:53 +0530 CS SCJ No. 3350/16 Dinesh Kumar Vs. The Commissioner, NDMC & Ors Page 9 of 21 W.P (C) No. 4677/1985 and provisions of Master Plan-2021. The details of industrial units pertaining to the plaintiff are mentioned at serial no.7 and 8 of the notice dated 08.12.2016 (Mark B) which are reproduced as below:-
7. M/s Dinesh Plastic Mr. Dinesh Printing 15 HPEM Works ,2146/1. (FF,SF+ IIIrd Kumar Sharma Digital (approx.) Floor) Chuna Mandi, Machine Paharganj, Delhi 8 M/s Dinesh Plastic Works, Mr. Dinesh LED Fitting & 15 HPEM 2147/2 (FF,SF+ IIIrd Floor) Kumar Sharma Digital (approx.) Chuna Mandi, Paharganj, Delhi Printing Machine
20. Furthermore, even during the cross examination of plaintiff / PW-1 by Ld. counsel for defendant no.2/ BSES on 29.04.2024, he deposed that the licence for assembling of LED sign board and work of photography and printing (digital board / print) was only obtained for the factory at 1st Floor of the property at 2146/1. Further, the plaintiff has clearly admitted that the nature of the licence was temporary for a limited duration, with no prior or subsequent licence. It is apparent from the Notice (Mark B) that work of LED fittings was found in premises of property bearing no. 2147/2 and not in premises of property bearing no. 2146/1. Also the provisional license (Mark A) granted to the plaintiff did not include permission for any LED fittings.
21. At this stage it is worth mentioning that, a plain reading of the plaint would paint a picture, that the plaintiff seeks indulgence of the court with respect to one Factory at 2146, first floor, area 1200 sq. ft, Chuna Mandi, Paharganj, New Delhi only, however a minute examination of the documents reveal that impugned notice UMESH Digitally signed by UMESH KUMAR KUMAR Date: 2025.03.20 18:33:03 +0530 CS SCJ No. 3350/16 Dinesh Kumar Vs. The Commissioner, NDMC & Ors Page 10 of 21 Mark B refers to two properties of the plaintiff i.e. one at property no. 2146/1 and other at property no. 2147/2, upon ground floor, first floor and second floor, both flagged for improper and illegal commercial use of premises. It has also emerged as an admitted position through documents and examination of the plaintiff that he does not deny the ownership or his possession and usage of these two properties and all the three floors for commercial purposes. Meaning thereby, plaintiff seeks quashing of a notice (Mark B) effecting two of his properties (including all three floors), without disclosing the entire factual background and number of floors entangled in the notice (Mark B).
22. During the cross examination of plaintiff / PW-1 by Ld. counsel for defendant no.3/ DJB on 03.10.2024, he deposed that he was running his factory at 2146, Gali No.1, Chuna Mandi, Paharganj, Delhi, wherein the license for running his factory was for three months only from 15.09.2016 expiring on 14.12.2016. He further deposed that he did not get any permanent license for running the factory after 14.12.2016, at 2146, Gali no. 1, Chuna Mandi, Paharganj, Delhi. He admitted that he is still running his factory at 2147, Gali No.1, Chuna Mandi, Paharganj, Delhi. He further deposed that he had a license for running the factory at property no. 2147 till today, he admitted that license pertaining to factory at property no. 2147, Gali no. 1, Chuna Mandi, Paharganj Delhi, was obtained by him before conclusion of present trial, however said license is never brought on record, therefore, veracity and truthfulness of claim of the plaintiff that he possesses a valid UMESH Digitally signed by UMESH KUMAR KUMAR Date: 2025.03.20 18:33:10 +0530 CS SCJ No. 3350/16 Dinesh Kumar Vs. The Commissioner, NDMC & Ors Page 11 of 21 license to run commercial activity at property no. 2147/2 could not be proved, so as to believe his deposition.
23. It is now a matter of record that, that the provisional license granted to the plaintiff for carrying out business at 1 st Floor, Shop No. 2146, Gali No.1, Chuna Mandi, Paharganj, Delhi was only for the purpose of photographs printing (including sign board printing) whereas the notice dated 08.12.2016 (Mark B) was issued regarding the unauthorized businesses carried out by the plaintiff at two properties i.e property bearing no. 2146/1, (First Floor, Second Floor and Third Floor) Chuna Mandi, Paharganj, Delhi and also at property bearing no. 2147/2, (First Floor, Second Floor and Third Floor), Chuna Mandi, Paharganj, Delhi. The plaintiff has not brought on record any representation / communication sent by him to defendant no.1 / MCD to the effect that he was not carrying any business in contravention to the provisional license issued to him or to the effect that he was not carrying out any business at 2146/1, Second Floor and Third Floor, Chuna Mandi, Paharganj, Delhi or at 2147/2, First Floor, Second Floor and Third Floor, Chuna Mandi, Paharganj, Delhi. The fact that the plaintiff, during his testimony had stated that he was still running the factory at 2147, Gali No.1, Chuna Mandi, Paharganj, Delhi and the fact that he has not disputed the description of his premises mentioned in the notice (Mark B), clearly shows that at the time of inspection by the officials of defendant no.1 / MCD, the business units of the plaintiff were running in non confirming area without valid license and in contravention of the orders passed by Hon'ble Supreme UMESH Digitally signed by UMESH KUMAR KUMAR Date: 2025.03.20 18:33:17 +0530 CS SCJ No. 3350/16 Dinesh Kumar Vs. The Commissioner, NDMC & Ors Page 12 of 21 Court of India in the case titled as ' M.C Mehta Vs. Union of India & Ors in WPC No. 4677/1985' . Further, the plaintiff had deposed that he was still running the factory at premises bearing no. 2147, Chuna Mandi, Paharganj which is also mentioned in the notice (Mark B) and for reasons best known to the plaintiff he had not disclosed the said fact in his pleadings or in his evidence affidavit.
24. In addition, it is undisputed that the license (Mark A) issued to the plaintiff is provisional in nature with a validity of only three months and it cannot be assumed that the plaintiff intended to carry on business only for three months that too after purchasing costly machinery from abroad. Usually provisional licenses are issued for a limited time period and only after fulfillment of requisite terms and conditions, the same are confirmed after consideration of the application filed in this regard. The plaintiff has not placed on record anything which could show that he had taken requisite steps for pursuing his application for issuance of confirmed license after obtaining the provisional license and before its expiration. Rather, Defendant no. 3/MCD in its written statement had stated the fact of rejection of license of the plaintiff vide order dated 20.09.2016 for non-submitting of the requisite documents and that the plaintiff was well aware that his license has already been rejected. The plaintiff has not filed any replication to the Written statement of defendant No. 3/MCD to rebut the averments regarding rejection of license, therefore, it is deemed that the plaintiff has admitted the said averment that his license/ application has been rejected and that he was aware of that fact.
Digitally signedUMESH by UMESH KUMAR KUMAR Date: 2025.03.20 18:33:22 +0530 CS SCJ No. 3350/16 Dinesh Kumar Vs. The Commissioner, NDMC & Ors Page 13 of 21
25. Furthermore, It is not the case of the plaintiff that he is seeking relief of declaration only to the extent of the premises i.e. 1st floor of property bearing no. 2146/1, as permitted under provisional license (Mark A), but he is seeking declaration of the entire notice (Mark B) meaning thereby the plaintiff is seeking order of the court to legalize his illegal and unauthorized activities in the entire premises of both properties bearing no. 2146/1 and 2147/2, without specifically pleading about the other property No. 2147/2 and the rest of the floors at property no. 2146/1.
26. Further, it is seen that impugned notice Mark B, also refers to the landmark judgment of Hon'ble Supreme Court of India in the case titled as 'M.C Mehta Vs. Union of India & Ors in WPC No. 4677/1985, therefore it is prudent that the dicta in M.C Mehta (supra) be appreciated in these facts. In the said judgment, while examining the issue of industrial activities in residential/non- conforming areas it was directed to put an end to such illegal activity while observing that "the Master Plan stipulates setting up of industries only in conforming areas, i.e. the industrial areas earmarked for that purpose, the industries in non-conforming areas have to stop functioning." It was further held that "Insofar as the Municipal Corporation of Delhi is concerned, we have already noticed its stand that non-conforming industrial units falling in category 'B' to 'F' whether polluting or not polluting which have come up in contravention of the Master Plan should not be permitted to operate and should be closed down. In this Digitally signed UMESH by UMESH KUMAR KUMAR Date: 2025.03.20 18:33:28 +0530 CS SCJ No. 3350/16 Dinesh Kumar Vs. The Commissioner, NDMC & Ors Page 14 of 21 connection, reference can be made to a public notice issued by MCD informing the general public and owners/occupiers/operators of industrial units situated in non-conforming/residential areas that in compliance with the directions of this Court, the industrial activity in violation of the Master Plan of Delhi 2001 be closed down immediately failing which the Municipal Corporation of Delhi shall forcibly close such units. All ad hoc licences granted, if any, shall stand revoked/cancelled."
27. From the material on record, and deriving from the guiding principals in M.C. Mehta (supra), there is no doubt that the plaintiff is carrying out commercial activity in a non-confirming area without proper sanction and the plaintiff has not led any evidence to prove otherwise. Since the act of the plaintiff is against the law, therefore, it cannot be said that there is any kind of legal right in his favour which can be protected by this court in the form of Declaration.
28. Accordingly, the issue (i) is decided against the plaintiff and in favour of the defendants.
Issue no. (ii).
Whether the plaintiff is entitled for relief of perpetual injunction as prayed in the plaint?OPP.
Issue no. (iii).
Whether the plaintiff is entitled for relief of mandatory injunction as prayed in the plaint?OPP.
29. Issues no.(ii) and (iii) are taken up together for discussion as both UMESH Digitally signed by UMESH KUMAR KUMAR Date: 2025.03.20 18:33:35 +0530 CS SCJ No. 3350/16 Dinesh Kumar Vs. The Commissioner, NDMC & Ors Page 15 of 21 the issues are interconnected and require appreciation of common facts and evidence.
30. The onus to prove these issues was upon the plaintiff.
31. The plaintiff has also sought relief of perpetual injunction against defendant no. 1 for not issuing any such type of illegal notice and it is further prayed that defendant no. 2 and 3 be restrained permanently from disconnecting the electricity and water supply of the plaintiff. The plaintiff has also sought relief of mandatory injunction seeking direction to defendant no. 1 to continue the factory license of the plaintiff.
32. It is clear that the two reliefs of Permanent and Mandatory injunction in issues no. (ii) and (iii) are consequential reliefs with the relief of declaration and that the two issues cannot be decided in favour of the plaintiff, in view of denial of relief of declaration. Even then, for the sake of granting finality to the rights of the parties, specific findings on issues no. (ii) and (iii) are being given.
33. It is a enunciated in law that for seeking relief of injunction, the plaintiff has to prove an obligation in his favour and its subsequent breach by the defendant. It is already held and found while deciding issue no. (i) that plaintiff could not manifest or prove any existing right to obtain electricity and water connection in the premise in question, while carrying out business without proper permission/ license issued by the competent authority.
Digitally signedUMESH by UMESH KUMAR KUMAR Date: 2025.03.20 18:33:48 +0530 CS SCJ No. 3350/16 Dinesh Kumar Vs. The Commissioner, NDMC & Ors Page 16 of 21
34. It is settled law that the relief of injunction is a discretionary and an equitable relief, and the person who seeks equity must do equity and should come before the court with clean hands. Perusal of record shows that the plaintiff has deliberately not disclosed the fact that he is also carrying out business in the property bearing number 2147/2. Clearly the plaintiff has knowingly withheld the material facts in the present suit.
35. It is further noted that the plaintiff, during course of the proceedings, had filed two show cause notices i.e. notice no.D/DC/KBZ/2019/1567 and notice no. D/DC/KBZ/2019/1569 issued to him by Defendant no. 1/MCD, both dated 11.12.2019, along with an application under section 151 CPC seeking interim relief. The said notices were supposedly issued by defendant no. 1 / MCD addressed to the plaintiff at property number 2146/1 and 2147/2 and the plaintiff had also sent replies to the said notices. The copy of replies have also been filed along with the said application U/s 151 CPC. The relevant part of reply sent by plaintiff qua property bearing no. 2146/1 is reproduced as below for reference:-
"To, The Deputy Commissioner, North Delhi Municipal Corporation, Karol Bagh Zone, Anand Parbat, New Delhi.
Sub: Reply as per your show cause Notice No. D/DC/KBZ/2019/1567 date. 11.12.2019 in respect of P. No. 2146/1, FF, SF & TF, Chuna Mandi, Pharganj, New Delhi. Digitally signed UMESH by UMESH KUMAR KUMAR Date: 2025.03.20 18:34:03 +0530 CS SCJ No. 3350/16 Dinesh Kumar Vs. The Commissioner, NDMC & Ors Page 17 of 21 Sir, I would like to inform you that I am the owner of 2146/1, FF, SF & TF, Chuna Mandi, Paharganj, New Delhi.
That Shri Dinesh Kumar Sharma was my tenant and they have vacated said shop on 2003.
That I have already closed commercial / trade / industries activity at above said shop before four ago and there no pollution work being carry out in the said shop and said shop is use for office purpose since 2016 to till date in this support I am enclosing showroom for (Advertising) purpose only.
That I further undertake that I will not doing pollution work said premise in future.
Therefore, you are requested to look into the matter and revoke / cancel the said notice at the earliest as possible.
Thanking you Date 12/12/2019 Yours Faithfully, (signed) Shri Dinesh Kumar Sharma 2146/1, FF, SF & TF, Chuna Mandi, Paharganj, New Delhi-110055"
36. Suspiciously, the plaintiff did not mention the fact of having any license issued by Defendant no. 1 in his replies, which creates doubt in the mind of court as the plaintiff had concealed material facts in his replies, rather the body of the reply indicate that the plaintiff while replying has stated that plaintiff himself has vacated the premises in question during the course of present trial, which in essence also points towards the relief sought being infructous for the reason that if the premises mentioned in the show cause notices have already been vacated then why the relief qua license has been UMESH Digitally signed by UMESH KUMAR KUMAR Date: 2025.03.20 18:34:11 +0530 CS SCJ No. 3350/16 Dinesh Kumar Vs. The Commissioner, NDMC & Ors Page 18 of 21 sought by the plaintiff in the present suit. It is apparent that the conduct of the plaintiff is such which does not entitle him to the assistance of the court and hence, the suit of the plaintiff is also barred under Section 41(i) of the Specific Relief Act. Furthermore, there cannot be any blanket order in favour of the plaintiff to direct defendant no. 1/MCD to continue the factory license of the plaintiff in perpetuity, without having the necessary legal requirement being met. Therefore, grant of injunction to the plaintiffs would be acting against the judgment of Hon'ble Supreme Court of India in "M. C. Mehta vs Union of India, WP (C) No.4677/85, which is also per se illegal.
37. Accordingly, issue no. (ii) and (iii) are also decided against the plaintiff and in favour of the defendants.
Issue no. (iv) Whether the suit of the plaintiff is barred by the provision of Section 477/478 of the DMC Act for want of statutory notice? OPD-2.
38. The onus to prove this issue was upon the defendant no.2.
39. The plaintiff has filed the present suit for permanent and mandatory injunction. Section 478 of the DMC Act is relevant in this regard which reads as follows:-
"478. Notice to be given of suits.- (1) No suit shall be instituted against a Corporation or against any municipal authority or against any municipal officer or other municipal employee or against any person acting under the order or direction of any municipal UMESH Digitally signed by UMESH KUMAR KUMAR Date: 2025.03.20 18:34:28 +0530 CS SCJ No. 3350/16 Dinesh Kumar Vs. The Commissioner, NDMC & Ors Page 19 of 21 authority or any municipal officer or other municipal employee, in respect of any act done, or purporting to have been done, in pursuance of this Act rule, regulation or bye-law made thereunder until the expiration of two months after notice in writing has been left at the municipal office and, in the case of such officer, employee or person, unless notice in writing has also been delivered to him or left at this office or place of residence, and unless such notice states explicitly the cause of action, the nature of this relief sought, the amount of compensation claimed, and the name and place of residence of the intending plaintiff, and unless the plaint contains a statement that such notice has been so left or delivered.
(2) No suit, such as is described in sub-section (1), shall unless it is a suit for the recovery of immovable property or for a declaration of title thereto, be instituted after expiry of six months from the date on which the cause of action arises.
(3) Nothing in sub-section (1) shall be deemed to apply to a suit in which the only relief claimed is an injunction of which the object would be defeated by the giving of the notice or the postponement of the institution of the suit".
It is clear from the above mentioned provision that in a suit for injunction, no statutory notice is required to be given before filing the suit. Although in the present suit filed by the plaintiff, relief of declaration has also been sought along with the reliefs of injunction, however, the reliefs sought by the plaintiff were of urgent nature, hence Proviso to Section 478 is applicable. Moreover, the onus to prove this issue was upon defendant no. 2 but no evidence has been led by Defendant no. 2 in this regard.
Digitally signedUMESH by UMESH KUMAR KUMAR Date: 2025.03.20 18:34:44 +0530 CS SCJ No. 3350/16 Dinesh Kumar Vs. The Commissioner, NDMC & Ors Page 20 of 21 Hence, this issue is decided in favour of the plaintiff and against the defendant no.2.
40. Needless to say that the interim order dated 26.12.2016 stands merged with the instant judgment and accordingly stands vacated with immediate effect.
Relief
41. In view of the aforesaid findings on the issues no. (i), (ii) and (iii), the present suit stands dismissed.
42. No orders as to costs.
43. Decree sheet be prepared accordingly.
44. File be consigned to Record-Room after due compliance.
UMESH Digitally signed by
UMESH KUMAR
KUMAR Date: 2025.03.20
18:34:53 +0530
Pronounced in the open (Umesh Kumar)
Court on 20.03.2025 JSCC-Cum-ASCJ-Cum-GJ-02
Central, Tis Hazari Courts.
20.03.2025
CS SCJ No. 3350/16 Dinesh Kumar Vs. The Commissioner, NDMC & Ors Page 21 of 21