Delhi District Court
M/S Tula Ram Pavan Kumar Through Its ... vs Municipal Corporation Of Delhi on 21 April, 2010
SUIT NO. 475/09/98
IN THE COURT OF SHRI SIDHARTH SHARMA : CIVIL JUDGE : DELHI
SUIT NO. 475/09/98
IN THE MATTER OF :
M/s Tula Ram Pavan Kumar through its partner
Sh.Raghbir Saran
S/o Sh. Tula Ram
R/o 362A, Main Market,
Subzi Mandi, Delhi110007. ..........PLAINTIFF
V E R S U S
1. Municipal Corporation of Delhi
through its Commissioner, Town Hall,
Chandni Chowk, Delhi.
2. Union of India,
through Secretary,
Ministry of Home,
Govt. of India, New Delhi.
3. State (Govt. of NCT Delhi)
through Chief Secretary,
5, Sham Nath Marg, Civil Lines,
Delhi - 110054. ..........DEFENDANTS
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SUIT NO. 475/09/98
SUIT FOR RECOVERY OF RS.8700/.
JUDGMENT
1. The plaintiff has filed the present suit for recovery of Rs.8700/ against the MCD. It is alleged in the plaint that plaintiff has been carrying on a shop and running a business of Kiryana at 362A, Main Market, Subzi Mandi, Delhi110007 and Sh.Raghubir Saran is one of the partners of the said firm. It is further alleged that on 17.09.97 at about 1.00 pm officials of defendants came to the shop of plaintiff and lifted 10 bags of rice and 2 bags of dal, which were of value of Rs.9500/. It is further alleged that these bags were lifted without any seizure memo and the said act of the officails of the defendant MCD was illegal. It is further alleged that plaintiff went to the office of defendant no.1 and found only two bags worth of Rs.800/ and immediately informed the defendant no.1 vide complaint dt.18.11.1997 sent through registered post. Hence the plaintif has filed the present suit for 2 SUIT NO. 475/09/98 recovery of Rs.8700/.
2. Defendant no.2 and 3 were served but no one appeared on behalf of defendant no.2 and 3 and they were proceeded exparte.
3. WS was filed by defendant no.1, wherein preliminary objections were taken. It is stated by the defendant that the plaintiff is not entitled to any relief whatsoever in the present suit in view of the fact that during the raid carried out in the area, only two bags of rice (containing approximately 35 Kgs. of rice each), apart from other articles as mentioned in the list filed herewith as ANNEXURE 'A', were found lying on the municipal/public land and as such the same were seized u/s 322 of the DMC Act. It is further stated that the plaintiff did not approach the concerned authorities of the answering defendant for release of the same and as such, as per policy, the unclaimed articles/goods seized by the concerned departmernt during February 96 to November, 1997, were disposed of in a public auction on 3 SUIT NO. 475/09/98 04.02.1998 and the amount received therefrom was adjusted towards the storage and removal charges recoverable in respect of each of such articles. At this stage, no amount is payable by the answering defendant to the plaintiff, much less the amount claimed and as such also the suit is liable to be dismissed. It is further stated that the only efficacious remedy available to the plaintiff, wa to have approached the concerned authorities of the answering defendant for release of the goods seized u/s 322 of the Act on payment of removal and storage charges, but the plaintiff did not approach the concerned authorities and as such the goods were disposed of as per provisions of section 326 of the Act and the amount received therefore, was adjusted towards the charges for removal and storage of the same. No amount is payable by the answering defendant to plaintiff on this account and as such also the suit is not maintainable and is liable to be dismissed. Hence the defendant prayed for dismissal of the suit. 4
SUIT NO. 475/09/98
4. Replication was filed by defendant no.1, wherein the contents of WS were denied and contents of the plaint were reiterated, however, in reply to para 2 of WS, it was admitted by the plaintiff that the goods were lying on the public land.
6. On the basis of pleadings of the poarties following issues were framed on 29.07.1999 :
(1)Whether the suit of the plaintiff is not maintainable in view of the objection no.4 taken by the defendant no.1 in their WS? OPD. (2)Whether the plaintiff is entitled for the decree of Rs.8700/ with interest pendentalie and future @ 18% p.a.? OPP.
7. Plaintiff examined himself as PW1 and defendant examined two witnesses, namely, Sh. Darshan Kumar as DW1 and Sh. K.K. Gaur as DW2.
8. I have heard arguments on behalf of both the parties and my issue wise findings are as under :
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SUIT NO. 475/09/98 ISSUE NO.1 :
"Whether the suit of the plaintiff is not maintainable in view of the objection no.4 taken by the defendant no.1 in their WS?" OPD. The burden to prove this issue was upon the defendant. Defendant examined two witnesses to prove his case. DW1 Sh. Darshan Kumar was the Administrative Officer, Sadar Pahar Ganj Zone, MCD, New Delhi and stated that as per the record, Mass Raid was conducted by the officials of the MCD on 17.11.1997 in ward no.84, 85 and 87 and all the articles found lying on the Municipal/Public Land in the area, which were removed under section 322 of the DMC Act. He proved the list of articles seized ExDW1/1. He also proved stock register where the said seized articles were deposited ExDW1/2. He further stated that as per record, nobody came to the office of the MCD for claiming the seized articles and hence a public notice for auction for unclaimed goods during the raid was made by the Assistant 6 SUIT NO. 475/09/98 Commissioner, (V.S.Rawat) Sadar Pahar Ganj Zone, MCD Delhi. The said notice was dt. 23.12.1997 which was proved as ExDW1/3. The auction notice is ExDW1/4 and whatever price was received from the sale and auction of the unclaimed goods were adjusted towards the removal and storage of seized articles which were lying in the public land in violation of section 321 and 322 of DMC Act.
The second witness of the MCD, who was also the Licencing Inspector, of Sadar Pahar Ganj Zone, MCD Delhi was part of the raiding party on behalf of MCD. He deposed that the unclaimed articles were seized by joint team of MCD and Delhi Police during the raid conducted on 17.11.1999. He proved his signature on ExDW2/1. He also identified the signatures of other members of raiding party.
Before going to the facts of the case, I suppose to refer all the sections i.e. Section 321, 322 and 326 of DMC Act.
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SUIT NO. 475/09/98 Section 321 : Prohibition of deposit, etc., of things in streets (1) No person shall, except with the permission of the commissioner and on payment of such fee as he in each case thinks fit, place or deposit upon anyy street, or upon any open channel, drain or well in any street or upon any public place any stall, chair, bench, box, ladder, bale or other thing whatsoever so as to form an obstruction thereto or encroachment thereon. (2) Nothing in subsection (1) applies to building materials.
Section 322 : Power to remove anything deposited or exposed for sale in contravention of this Act The Commissioner may, without notice, cause to be removed
(a) any stall, chair, bench, box, ladder, bale or other thing whatsoever, placed, deposited, projected, attached or suspended in, upon, from or to any place in contravention of this Act;
(b) any article whatsoever hawked or exposed for sale on any public street or in other public place in contravention of this Act and any vehicle, package, box or any other thing in or on which such article is placed.
Section 326 : Disposal of things removed under this chapter - (1) Any of the things caused to be removed by the Commissioner under this Chapter shall, unless the owner thereof turns up to take back such thing and 8 SUIT NO. 475/09/98 pays to the Commissioner the charges for the removal and storage of such thing, be disposed of by the Commissioner by public auction or in such other manner and within such time as the Commissioner thinks fit. (2) the charges for removal and storage of the thing sold under sub section (1) shall be paid out of the proceeds of the sale thereof and the balance, if any, a period of one year from the date of sale, and if no such claim is made within the said period, shall be credited to the Municipal Fund.
Upon careful perusing the evidence led by defendants as well as documents proved by him, it is seen that 15 officials of MCD were part of the raiding party along with number of police officials. All these officials acted as per section 321, 322 and 326 of DMC Act. It is further seen that the MCD acted as per provisions of section 326 of DMC Act in respect of the unclaimed articles. It is also admitted by the plaintiff in his replication that the goods were lying in the public land. The defendant have proved that a raid was conducted under the provisions of section 321 and 322 of DMC Act and the seizure memo was prepared with respect to goods seized from number of shopkeepers whose goods were lying outside their shops on 9 SUIT NO. 475/09/98 MCD land. The plaintiff also did not approach the MCD authorities to claim the seized articles. The plaintiff also did not prove any complaint to the police or MCD officials regarding shortage of any articles. In these circumstances, I am of the opinion that plaintiff validly conducted raid and seized the articles under section 322 of DMC Act and thereafter, as seized articles were unclaimed, the same were sold by a public auction. Accordingly, issue no.1 is decided in favour of the defendant and against the plaintif.
ISSUE NO.2 :
"Whether the plaintiff is entitled for the decree of Rs.8700/ with interest pendentalie and future @ 18% p.a.?" OPP. The burden to prove this issue was upon the plaintiff. Plaintiff did not examine any neighbouring shopkeeper to prove that the MCD had lifted more articles than shown as per their seizure report. It is seen that MCD 10 SUIT NO. 475/09/98 had raided number of shops but in cross examined plaintiff stated that MCD officials raided only the shop of the plaintiff, which is acutally incorrect. The plaintiff also could not prove any ownership documents of the seized goods, showing their violation. The plaintiff also did not prove any document to show that he went to the MCD office to claim of the seized goods.
Ld. Counsel for plaintiff has argued that MCD officials did not issue any challan and seized lifted goods straight away. However on perusal of section 321 and 322 of DMC Act, it is clear that even if the MCD did not challan the defaulter i.e. Plaintiff herein, they have powers under the said section to seized the goods lying on MCD land without giving any notice. In view of the above facts not proved by the plaintiff and in view of the documents proved by the defendant as already discussed in issue no.1, I am in the view that the plaintiff has failed to prove this issue. Accordingly, the plaintiff is not entitled for the decree for the sum paid. This issue is decided 11 SUIT NO. 475/09/98 in favour of defendant and against the plaintiff.
9. In view of the above findings on issue nos. 1 and 2 the suit of the plaintiff is dismissed with no costs. Decree Sheet be prepared accordingly. File be consigned to record room.
ANNOUNCED IN OPEN (SIDHARTH SHARMA)
COURT ON 21.04.2010 JSCC/ASCJ/GJ/DELHI
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