Delhi District Court
Arun Kumar vs Municipal Corporation Of Delhi on 2 February, 2012
IN THE COURT OF SH. REETESH SINGH
ADDITIONAL DISTRICT JUDGE-01 (NORTH-EAST)
KARKARDOOMA COURTS, DELHI
MCA No. 23/11
Date of Institution of Appeal : 16.09.2011
Date on which Reserved for Judgment : 17.12.2011
Date of Judgment/Order : 02.02.2012
Case I.D. Number : 02402C0283372011
IN THE MATTER OF:-
Arun Kumar,
S/o Surinder Singh,
R/o C-7/75, Yamuna Vihar,
Delhi-110053.
........Appellant.
Versus
Municipal Corporation of Delhi,
Through its Commissioner
Civil Centre
Dr. Shama Prasad Marg, Minto Road,
New Delhi.
.........Respondent no.1.
Sh. Sonu Madaan
C-7/76, Yamuna Vihar,
Delhi-110053.
..........Respondent no.2.
JUDGMENT
1. This appeal has been filed against the impugned order dated 4.7.11 by which the ld. Trial Court has disposed of the application of the plaintiff under Order 39 Rule 1 and 2 CPC.
RCA No. 23/11 Page No. 1/6Order on application for Condonation of delay in filing the appeal:
2. Along with the appeal appellant has moved an application for condonation of delay in filing the appeal. It is submitted that a delay of 60 days was caused in filing the appeal due to the pendency of the second application of appellant with the MCD under Right to Information Act, reply to which was received only on 1.9.11. It is submitted that the delay which was caused was neither deliberate not malafide.
3. Along with appeal appellant has filed a copy of reply dated 1.9.11 received from MCD in response to his application under Right to Information Act. Thereafter appellant has filed this appeal on 16.9.11.
4. For the reasons recorded above, application for condonation of delay in filing the appeal is allowed.
Order on Appeal:
5. Brief facts leading to the filing of the appeal are that on 19.5.11 the plaintiff filed a suit for mandatory injunction against the defendants for directing defendant no.1 to take action in accordance with law against the defendant no.2 who was stated to be running an illegal workshop for servicing repairing of motor vehicles. In the plaint it was averred that Block-C-7 Yamuna Vihar Delhi-53 was a residential colony and commercial activities were not permitted as per the Master Plan of Delhi. It is averred that plaintiff is residing at C-7/75 and in the adjacent premises i.e. C-7/76, the defendant no.2 was running a workshop for servicing and repairing of motor vehicles. It is averred that the workshop being run by the defendant no.2 in a residential area was in violation of all the norms of the Master Plan and land use permitted and was also causing pollution to the environment and nuisance to residents of the colony. It is averred that the plaintiff made complaints to the authorities including defendant no.1, Municipal Corporation of Delhi but no action was taken on the same. In reply to an application under Right to Information Act, PIO, MCD in its reply dated 11.11.10 had stated that no license had been granted against the premises no.C-7/76, Yamuna Vihar Delhi-53 for running of any motor RCA No. 23/11 Page No. 2/6 workshop. Plaintiff sent a legal notice to the defendant no.1 for taking action against defendant no.2. Since no response was received from the plaintiff, plaintiff filed the present suit.
6. In the written statement filed on behalf of the defendant no.1 / MCD it is stated that the defendant no.1 has challaned the defendant no.2 on 17.6.11 for carrying on business of auto workshop without any municipal license and the defendant no.2 has paid a fine of Rs.800/- on 29.6.11. It is further averred that when the premises of defendant no.2 were re-inspected it was found that defendant no.2 was carrying on business of property dealership from the suit premises under the name and style of M/s Hari Om Motors and Properties without any municipal license or permission and further action was being contemplated against the defendant no.
2.
7. In the written statement defendant no.2 has denied carrying on any workshop of servicing and repairing motor vehicles from his premises but has averred that he was running a shop of auto spare parts from the premises. It is averred that the said activity was not banned under any law and further submitted that commercial activity is going on in Yamuna Vihar Delhi for several years.
8. After considering the material on record, ld. Trial Court by order dated 4.7.11 decided the application of the plaintiff under Order 39 Rule 1 and 2 CPC and restrained the defendant no.2 from operating any auto workshop from his premises. However by the said order the ld. Trial Court has clarified that defendant no.2 was restrained only from running auto workshop and not from carrying on business of spare parts from his premises. Aggrieved by the said order present appeal has been filed.
9. Ld. Counsel for appellant has argued that no commercial activity is permissible in the area where the plaintiff and defendant no.2 are situated. Plaintiff had made a subsequent application under Right to Information Act to the Municipal Corporation of Delhi. In response to the said application reply was received dated RCA No. 23/11 Page No. 3/6 1.9.11 from the office of Assistant Commissioner Shahdara, North Zone, Delhi. In the same it has been categorically stated that no commercial activity was permissible in the area C-Block Yamuna Vihar Delhi-53. Counsel further submitted that in response to a specific question whether business of auto spare parts could be run from the said premises, the answer was in the negative. Counsel for appellant therefore submitted that the defendant no.2 could not even be permitted to run business of auto spare parts or any other commercial activity from the said premises.
10. Counsel for respondent no.2 on the other hand has argued that there are five other shops in the same area from which commercial activities are being run but no action has been taken against them by the respondent no.1 MCD. Counsel for respondent no.2 further submitted that prayer made in this suit as well as in the application for interim injunction is restricted to restrain the defendant no.2 from carrying on business of workshop and hence no relief beyond pleading can be granted to him.
11. Counsel for respondent no.1 MCD has submitted that it has taken action against the defendant no.2 for running auto workshop and is in the process of taking further action against the defendant no.2 since it was found running a property dealing office from the suit premises.
12. I have heard the ld. Counsel for parties and perused the record.
13. After the passing of the impugned order, the appellant has moved another application under the Right to Information Act, with the MCD. Relevant portion of reply of the MCD is as under:
Sl. No. Question Answer
2. Whether the area C-7 Block, Yes. No any commercial activity Yamuna Vihar, Delhi-110053 is permissible in the residential area. residential in nature and carrying out commercial activity of any sort is not RCA No. 23/11 Page No. 4/6 permissible?
8. Whether it is permissible to run the No. business of Auto Spare Parts in the shop at C-7/76, Yamuna Vihar, Delhi-110053.
14. Perusal of the information furnished by MCD reveals that no commercial activity is permissible in C-7 Block Yamuna Vihar Delhi-53. Consequently even running of business of auto spare parts is not permissible. Counsel for respondent no.2 has argued that there are other persons running commercial activity in the same area. He further submitted that no relief pleadings can be granted to the plaintiff.
15. I have perused the application of plaintiff for interim injunction. In prayer A plaintiff has clearly prayed for directions to be issued against the defendant no.1 to restrain the defendant no.2 from carrying out illegal commercial activity in the residential area. As regards other commercial shops in the same area it is settled law that there cannot be any negative application of Article 14 of Constitution of India i.e. the Court by a judicial order cannot perpetuate an illegality being committed by other persons.
16. As per the stand of the MCD no commercial activity of any nature is permissible in Block C-7 Yamuna Vihar, Delhi-53. It is also not permissible to run the business of auto spare parts in the shop C-7/76 Yamuna Vihar, Delhi-53. In view of the categorical stand of the MCD, appeal of the appellant is allowed. In addition to the order of injunction granted by the ld. Trial court, defendant is restrained from carrying out any commercial activity whatsoever including activity of business of auto spare parts from premises C-7/76 Yamuna Vihar, Delhi-53, during the pendency of the suit.
RCA No. 23/11 Page No. 5/617. If however at any point of time the defendant no.2 is granted any permission from the defendant no.1 for carrying out permissible commercial activities from his premises, the defendant no.2 will be entitled to make an application before the Trial Court for variation of this order.
18. TCR be sent back with a copy of this order. File be consigned to the record room.
Dictated to the Steno and Announced in the Open Court today i.e. 02.02.2012.
(REETESH SINGH) Addl. Distt. Judge-01 (NE) Karkardooma Courts, Delhi.
RCA No. 23/11 Page No. 6/6