Delhi District Court
Megh Raj Aggarwal vs (1)New Delhi Municipal Committee on 30 May, 2014
IN THE COURT OF SH. PRASHANT SHARMA: LD. ARCACJCCJ,
PATIALA HOUSE COURTS: NEW DELHI
SUIT NO. S18/08/84
Megh Raj Aggarwal .... Plaintiff
S/o. Sh. Kapur Chand Aggarwal,
R/o. 6E, Rani Jhansi Road,
New Delhi.
Vs.
(1)New Delhi Municipal Committee ..... Defendants.
Town Hall, Parliament Street,
New Delhi110001.
(2) Union of India,
Through Secretary, Ministry of Home Affairs,
Government of India, North Block,
New Delhi.
(3) The President,
New Delhi Municipal Committee
Town Hall, Parliament Street,
New Delhi.
(4) The Secretary
New Delhi Municipal Committee
Parliament Street,
New Delhi.
(5) Sh. P.S. Bhatnagar,
Administrator, New Delhi Municipal Committee
Parliament Street,
New Delhi.
SUIT NO. S18/08/84 Meghraj Vs. NDMC & Ors. Page No. 1
(6) Sh. P.K. Tripathi,
Secretary, New Delhi Municipal Committee
Parliament Street,
New Delhi.
(7) Sh. R.C. Sabharwal,
Senior Architect, New Delhi Municipal Committee
Parliament Street,
New Delhi.
(8) Sh. I.B. Mallick,
Assistant Engineer, New Delhi Municipal Committee
Parliament Street,
New Delhi.
SUIT FOR RECOVERY OF RS. 2,58,400/ AND FOR
MANDATORY INJUNCTION
Date of institution of suit : 12.06.1984
Date of final judgment : 30.05.2014
1. This case highlights the highhandedness of some officers, in
performing their official duties.
2. Plaintiff, Meghraj Aggarwal, had filed the present suit for
recovery of Rs. 258400/ as part damages and for recovery of further
damages along with relief of mandatory injunction against defendant
NDMC, alleging that he was tenant in shop no. 3 in property known as
Chaudhary Building, bearing no. K14, Connaught Place, New Delhi,
which was owned by Chaudhary Ram Nath, Chaudhary Rishi Kumar
and Legal Heirs of Chaudhary Suraj Singh. Hence forthwith, aforesaid
SUIT NO. S18/08/84 Meghraj Vs. NDMC & Ors. Page No. 2
shop will be referred as shop in question. It was further alleged in the
plaint that plaintiff was doing the business of printing press under the
name and style of "New India Printing Press" in the said shop. That the
aforesaid owners wanted to enhance the rent astronomically against the
plaintiff but plaintiff did not agree to the same. Therefore the said
owners filed a petition bearing no. 322/69 Ex.P5, against plaintiff U/s.
14(1)(b), (j) and (k) DRC Act, which was dismissed by the concerned
Court vide order Ex.P3 and the said order was confirmed in Appellate
Court also vide Ex.P4. That in 1982 plaintiff wanted to take advantages
the latest technology of computerized photo composing and processing
machines and thats why visited various countries like U.K., West
Germany and France for assessing their advantages. During those
visits, he came to know that the said machines could be installed in a
dust free and air conditioned atmosphere. He subsequently purchased
one computerized filming processing machine and started negotiating
with the sellers for purchasing other machines. For installation of the
said machines, plaintiff had to installed false ceiling and air
conditioning ducts, which also face lifted the shop in question. Plaintiff
during construction of the said structure had to shift some of his
printing machines, already functioning there to the premises of M/s.
Modal Press Pvt. Ltd., Jhansi Road, which was owned by the plaintiff
and rest of them were disposed off by them. For the feasibility of
working of the said new machines, plaintiff erected steal girders at
places 6'' away from the walls to height of about 7 ½ feet and connected
them with cross girders with nuts and volts so as to provide support to
SUIT NO. S18/08/84 Meghraj Vs. NDMC & Ors. Page No. 3
the air conditioning ducts. Plaintiff used steel girders because the width
of the shop was about 21 feet and wooden frames could not have
supported such false ceiling and ducts. Further plaintiff restrained from
providing false roofing with cardboards fixed on wooden frames as in
such case the said frames and air ducts would have to be supported to
by steel rods, which in turn would have to be connected with RBC roof
and as a result of that the said roof would have become over burdened.
The same was not advisable and hence plaintiff erected steel girders, in
the manner mentioned above. As per plaintiff, placing of said steel
girders in the shop in question did not require any sanction from
defendant NDMC as the same was covered by the definition of
"repairs", as defined in the Building by laws of defendant NDMC as
well as Delhi Municipal Corporation.
Owners/landlord of the shop in question in order to obstruct the
aforesaid "repair" work of plaintiff filed a suit bearing no. 749/93
wherein they prayed that the acts of plaintiff qua the shop in question
were covered under the heading of addition, alteration and structural
changes, being done illegally, for which plaintiff should be restrained.
Notice was issued in the said suit to the plaintiff but no ad interim ex
parte injunction was passed by the concerned Court. The said order was
confirmed by the Appellate Court in appeal.
3. Subsequently defendant NDMC served notice dated 26.10.1983,
calling upon plaintiff to demolish five girders of measurement 7'' x 4'',
erected throughout the width shop in question. In the said notice, steel
SUIT NO. S18/08/84 Meghraj Vs. NDMC & Ors. Page No. 4
girders affixed by the plaintiff were described as unauthorized
construction and plaintiff was asked to demolish the same within 6
hours of receipt of the same. That the said notice referred to a previous
notice dated 12.10.1983 on the same subject matter, but plaintiff never
received the said previous notice. On 27.10.1983, plaintiff again
received another notice U/s. 195, Punjab Municipal Act, in which
plaintiff was directed to demolish alleged unauthorized structure within
3 days of receipt of the same, failing which legal action would be
followed. As per plaintiff the said notices were issued by defendant
NDMC at the instance of owners/landlords and were malafide as the
mezzanine floor referred in the said notices had existed prior to the
occupation of the shops in question by the plaintiff and girders were
affixed in order to given support to false ceiling and for air conditioning
ducts, for maintenance of the machines, referred above. As per plaintiff,
his acts were covered by the definition of "repairs".
That on 30.10.1983 and 02.11.1983, plaintiff filed two appeals
U/s. 225, Punjab Municipal Act, before Sh. G.S. Cheema, Ld. ADM,
Delhi. In both the said appeals i.e. 512/1983 and 513/1983, separate
applications for stay of operation of notices, which were issued by
defendant NDMC were preferred by the plaintiff. On 03.11.1983 Sh.
G.S. Cheema ordered notices of appeals and stay of application till
09.11.1983. On 09.11.1983 appeals were adjourned to 11.11.1983, as
reflected in Ex.PW2/1. On 11.11.1983, arguments on the stay
applications were heard and the concerned Court had passed the order
of status quo regarding the shop in question, till 18.11.1983. The said
SUIT NO. S18/08/84 Meghraj Vs. NDMC & Ors. Page No. 5
order not only noted down the presence of counsel for defendant
NDMC but also marked the presence of counsels for both the litigating
parties. As per plaintiff, the said order came into force with immediate
effect and defendant NDMC knew about the same through its counsels,
from the very inception. One representative of defendant NDMC had
witnessed the said proceedings, in the Court. The said order dated
11.11.1983 was neither reviewed by the concerned Court nor it was set
aside by the competent Court. That officers of defendant NDMC in
defiance of the said order, without any prior notice visited the shop in
question on 16.12.1983 at about 03.00 pm, for demolishing the
parchhati and steel girders, present therein. The shop was opened by the
officers of defendant NDMC forcibly and after trespassing the said
shop the demolishing squad started demolishing the mezzanine floor.
At that time plaintiff was not present at the said shop and rather was
informed by one Mr. J.J. Sood about the said developments.
Consequently plaintiff reached at the shop immediately at about 03.15
am and gave copy of stay order dated 11.11.1983 to the officers of
defendant NDMC who after reading the said order did not pay any heed
to the requests of the plaintiff. That subsequently counsels of plaintiff
namely Rajeev Bahl and Ashok Guranani also reached at the spot at
about 4.55 pm. Both the counsels also requested defendant no. 8, I.B.
Mallick and defendant no. 9 P.K. Bajaj for stay of the demolition after
apprising them about the order of Ld. ADM, dated 11.11.1983 but they
did not pay any heed to the said requests and continued to give
directions for demolition of the structures, already mentioned above.
SUIT NO. S18/08/84 Meghraj Vs. NDMC & Ors. Page No. 6
Subsequently on repeated persistence of plaintiff and his counsels,
defendant no. 8 agreed to accompany the plaintiff to the office of
defendant NDMC for obtaining further orders. Subsequently R.C.
Sabarwal, defendant no. 7 was contacted by them, but he left in an
arrogant way. That defendant no. 8 was directed by defendant no. 7 to
continue with the demolition by not bothering about the order of the
Court. Defendant no. 8, then returned back to the spot for carrying out
demolition in spite of having knowledge about they stay order of the
Court dated 11.11.1983. In the meanwhile counsel Sh. Rajeev Bahl for
the plaintiff also reached there and decided to meet the concerned
Administrative for stopping of the demolition proceedings. He, in fact
met the Administrator and informed him about the order dated
11.11.1983, passed by Ld. ADM. The said Administrator i.e. defendant
no. 5 told plaintiff and his counsels that he was busy in meeting and the
demolition drive will continue. The meeting in which Administrator
defendant no. 5 was busy, ended at about 7 pm and defendant no. 5
instead of meeting plaintiff and his counsels left the office without any
communication/hearing plaintiff. In the meanwhile defendant officials
had demolished the girders, mezzanine floor and other articles
belonging to plaintiff. The said demolition had resulted in destruction
of old existing mezzanine floor, false roofing, flooring, stocks and
furniture of plaintiff. Defendant no. 6 P.K. Tripathi, secretary NDMC
was also informed about the said illegal act of defendant officials but of
no avail. As a result of aforesaid illegal acts of defendant officers,
plaintiff suffered damages of Rs. 258400/(i.e. Rs. 2 lacs/ as damage
SUIT NO. S18/08/84 Meghraj Vs. NDMC & Ors. Page No. 7
on account of reputation, defamation, mental pain and discomfort along
with Rs. 58400/ as damage to the shop in question). The said estimate
of damage of the shop in question was based on report of architect
Ex.PW3/1. Based on aforesaid pleas, plaintiff averred that what he had
done was not illegal rather was covered by the definition of "repairs"
and therefore was permissible. On the contrary acts of defendants were
not only contrary to law but also were in contempt of the order of Ld.
ADM dated 11.11.1983. As per him, cause of action arose on 16.12.1983
when the shop in question was trespassed by the officers of NDMC and
it still continued. Plaintiff therefore prayed that the aforesaid amount of
damage must be paid by defendants. In addition to that, plaintiff prayed
that future damages at the rate of Rs.500/ per day till the restoration of
original structure in the given shop in question, must be paid by
defendants. Further it was prayed that defendants be directed to restore
back the shop in question, as it existed before demolition on 16.12.1983
and cost of the suit may be awarded to the plaintiff.
4. This suit was filed within proper jurisdiction and proper Court
fees was attached.
5. Defendants no. 1, 3 to 9, had filed their written statement, in
common. Defendant no. 2 did not file any written statement. During
course of proceedings, defendant no. 2 to 9 were proceeded ex parte on
16.12.1986. Defendant no. 1 NDMC was the parent organization, in
which defendant no. 3 to 9 were employed. The said defendant no. 3 to
SUIT NO. S18/08/84 Meghraj Vs. NDMC & Ors. Page No. 8
9 had not filed their separate written statement. They took the defence,
as taken by defendant no. 1. The allegations of plaintiff were not
personal to defendant no. 3 to 9 rather were leveled on them, in their
official capacity. Therefore though defendant no. 3 to 9 never appeared
in this case, separately but in view of their common stand with
defendant no. 1 and the version of plaintiff against them, I found that it
is proper to appreciate the evidence on record, not only from the
perspective of defendant no. 1 only rather on behalf of defendant no. 3
to 9.
6. So far as defendant no. 2 Union of India through Secretary,
Ministry of Home Affairs, Government of India, North Block, New
Delhi was concerned, neither did I find any allegation in the plaint
made directly against him nor did the pleadings reflect involvement of
the said defendant, remotely. Therefore allegations of plaintiff were not
considered by me against defendant no. 2 and consequently no order is
passed against defendant no. 2.
7. As per defendants, suit of plaintiff was liable to be dismissed for
misjoinder and nonjoinder of parties, as plaintiff failed to array Sh.
Ram Nath Rishi Kumar, being owner of shop in question in his suit. Sh.
Ram Nath Rishi Kumar was a necessary party, as he could have told the
Court as to whether notices issued by defendants were in fact received
by him or not and he could have further cleared the position regarding
unauthorized construction in the shop in question. In his absence, as
SUIT NO. S18/08/84 Meghraj Vs. NDMC & Ors. Page No. 9
per defendants, suit should be dismissed for non joinder of necessary
party. Further as per them they had demolished the unauthorized
construction in the shop of plaintiff, after following due process of law
and therefore no compensation can be awarded to plaintiff. They
alleged that plaintiff had extended unauthorized portion with the help
of load bearing girders spanning across the shop and over the same
wooden blanks were fixed for flooring. As per them during progress of
unauthorized construction in the shop in question, plaintiff was served
with a notice U/s. 195A of Punjab Municipal Act by them, directing
plaintiff to stop the said construction after detailing about the
unauthorized construction. That due to failure of compliance of the said
notice, defendants served plaintiff another notice U/s. 220 of Punjab
Municipal Act, but despite receiving the said notices, as acknowledged
by the plaintiff in his replies through counsels dated 27.10.1983 to
26.10.1983, plaintiff refused to stop the unauthorized construction. All
the aforesaid notices were also served upon the owner of the shop in
question. So far as order of Sh. G.S. Cheema, the then Ld ADM, South
dated 11.11.1983 was concerned, defendants had no knowledge about
the same and it was incumbent, as per them, on plaintiff to get the said
order personally served on defendant no. 1. Plaintiff did not do so.
Further as a result of load bearing girders, minimum height of the roof
was breached as per rules. Therefore plaintiff had not done act, under
the garb of repairs rather it was an unauthorized construction. That
defendants department never received aforesaid order till 16.12.1983
when the unauthorized construction in the shop in question was
SUIT NO. S18/08/84 Meghraj Vs. NDMC & Ors. Page No. 10
demolished. Therefore in the absence of any knowledge about the
aforesaid order no malafide intention can be attributed to the answering
defendants. They further denied that they had threatened Achhar Singh
with dire consequences in case he failed to open the shop in question
when they had visited the said shop. They denied that officers of
NDMC, as mentioned by plaintiff had ever met Advocates of plaintiff
namely Sh. Rajeev Bahl and Sh. Ashok Gusanani, in the manner
mentioned in the plaint. They also denied the manner in which
proceedings had taken place on 16.12.1983 as detailed out by the
plaintiff in his suit. They further denied that due to aforesaid acts of
officers of defendant NDMC, any damage/damages, was/were caused to
the plaintiff and that plaintiff was suffering damage at the rate of Rs.
500/ per day besides loss of reputation in the eyes of his neighbors.
Hence they prayed that the suit may be dismissed with cost in the light
of aforesaid averments.
8. Plaintiff filed replication to the written statement of the
answering defendants, in which he negated the assertions made by
defendants and reiterated his claim as mentioned in his plaint.
9. After completion of pleadings, admission/denial of documents
was done and 9 issues were settled, which were later on reduced to
following issues:
Issue no. 1 : Whether the suit is bad for misjoinder/non joinder of
necessary parties? If so, to what effect? OPD
SUIT NO. S18/08/84 Meghraj Vs. NDMC & Ors. Page No. 11
Issue no. 2 : Whether the plaint does not disclose any cause of
action?OPD
Issue no. 3 : Whether the defendant illegally and with malafide
intention demolished the constructions in the premise on
16.12.1983? If so, to what effect?OPP
Issue no. 4 : Whether the demolition was in disobedience of the
injunction order of the ADM dated 11.11.1983. If so, to what effect?
OPP
Issue no. 5 : To what amount of damages the plaintiff is entitled to
and against whom?OPP
Issue no. 6 : Relief.
10. During plaintiff evidence, plaintiff examined himself as PW1
and reiterated his claim, as mentioned in his plaint, as mentioned above
and is not repeated here for the sake of brevity. In addition to that, he
also deposed that after demolition of the construction in the shop in
question, he had served defendants with a notice dated 26.03.1983,
Ex.P1, vide which he claimed damages, as claimed by him in this
plaint. The aforesaid notice, was served on defendants, through AD
card/UPC, as per receipt Ex.P2 and was also served through post vide
postal receipt Ex.P11(1 to 9). The postal acknowledgement receipts
bearing official seal of defendant no. 2 was Ex.P3. He also placed on
record AD receipts B/1 to B/4. Apart from that he deposed that his
counsel had sent another notice to defendants which was Ex.P4. He also
SUIT NO. S18/08/84 Meghraj Vs. NDMC & Ors. Page No. 12
relied upon AD card Ex.PW1/1, claiming service of his notice on
defendants. Finally he placed on record photographs Ex.PW1/4 to
Ex.PW1/19, regarding the status of shop in question. Apart from him,
PW2 D.P. Singh, Head clerk, DC office was examined who placed on
record certify copy of order dated 11.11.1983, passed by the concerned
SDM. Same was referred as Ex.PW2/1. PW3 Phoolchand Goyal was
the concerned architect who had estimated the damages of shop in
question, at the instance of plaintiff. He, in his testimony, placed on
record his report, Ex.PW3/1 and also identified the photographs, of
shop in question, placed by the plaintiff. Subsequently plaintiff's
evidence was closed at request of plaintiff.
11. Defendants, in particular defendant no. 1 NDMC examined two
witnesses to put their case. DW1 Subhash Aggarwal, Assistant
Engineer Civil in his testimony deposed that he was conversant with the
record of this case. He testified that he had received a complaint
regarding unauthorized construction in the shop in question on
10.10.1983 and consequently his department issued notice Ex.DW1/1 on
11.10.1983, after doing inspection of the shop in question. Subsequently
his department again issued another notice on 12.10.1983 Ex.DW1/2.
Both the aforesaid notices were served properly on plaintiff as per
reports of process servers Ex.DW1/3 and Ex.DW1/4 respectively.
Subsequently another inspection was carried out by his department on
25.10.1983 and on the basis of that inspection another notice dated
27.10.1983 was given to plaintiff. In addition to that, notice on
SUIT NO. S18/08/84 Meghraj Vs. NDMC & Ors. Page No. 13
09.11.1983 U/s. 220 of Punjab Municipal Act Ex.DW1/5 was served on
plaintiff regarding which report of Junior Engineer Ex.DW1/5 was
placed on record. He testified that on 16.12.1983 demolition of the
alleged unauthorized construction in the shop in question was carried
out by his department and on the said day there was no information or
material on the file of his department to show that an appeal was filed
by the plaintiff against the notices dated 26.10.1983 and 27.10.1983. His
department also issued notice on 17.11.1983 Ex.DW1/7, to the plaintiff,
regarding which Junior Engineer had reported through Ex.DW1/8. His
department had again carried out inspection of the shop in question on
22.11.1983 and on the basis of the said inspection another notice was
issued on 01.12.1983, Ex.DW1/9, which was duly served on plaintiff as
per service report Ex.DW1/10. As per him, unauthorized construction
was continuing in the shop in question, even after 11.11.1983.
Subsequently on 16.12.1983, Mr. I.P. Malik, P.K. Bajaj, S.L. Goyal, V.K.
Gulati, L.K. Sharma and other labours of Enforcement Department of
defendant no. 1 went to the shop in question and carried out demolition.
The said order for demolition issued by Administrator of defendant no.
1 NDMC. That as per record of defendant no. 1 NDMC there were no
air conditioning ducts present in the shop in question on the day of
demolition i.e. 16.12.1983 and NDMC officers had demolished the
mezzanine floor which was illegally constructed in the shop in
question. Original structure of the shop in question, was not disturbed.
Apart from him DW2 Vikram Mehto was another official of defendant
no. 1, who was examined by defendant no. 1. In this testimony he
SUIT NO. S18/08/84 Meghraj Vs. NDMC & Ors. Page No. 14
deposed that report at point A to A1 in Ex.DW1/3 was written by him,
regarding service of notice Ex.DW1/1 on plaintiff. He further identified
his report at point B to B1 in document Ex.DW1/4 pertaining to service
of notice dated 12.10.1983 on plaintiff. He identified his reports dated
26.10.1983 from point B to B1 in Ex.DW2/1 and from point B to B1 in
his report dated 02.12.1983 in Ex.DW1/10.
12. Subsequently defence evidence was closed and after hearing
final arguments, matter was fixed for judgement.
13. Before dealing with the issues in hand, I am appreciating the
veracity of testimonies of the witnesses, who had deposed for their
respective parties.
14. Testimony of plaintiff, held its ground during acid test of cross
examination. Plaintiff did not make contradictory statement in his
testimony. He refuted the suggestions of defendants that he had
developed false story regarding construction of girders and columns,
that he had made the said construction in order to raise parchatti in the
said shop, that he had refused to accept notices issued by defendant no.
1 NDMC dated 11.10.1983, 12.10.1983, 19.10.1983, 09.11.1983 and
17.11.1983, that he had not shown copy of order Ex.PW1/2 to the
officers of defendant no. 1 NDMC on 16.12.1983, that NDMC officers
did not cut the girders on 16.12.1983 and that the figure of Rs. 58400/
on account of damage of his property in shop in question claimed by
SUIT NO. S18/08/84 Meghraj Vs. NDMC & Ors. Page No. 15
the plaintiff was exaggerated. He did not take UTurns in his testimony.
Further as per his testimony, he had acted on the advise of Architect
and Advocate, while constructing the girders/columns in the shop in
question. Therefore not only plaintiff acted bonafidely, with the belief
and knowledge from building and legal experts that his construction
was covered by the definition of repairs rather but had also taken the
recourse of legal proceedings, to emphasis his rights. He specifically
deposed that officers of defendant NDMC had demolished the air
conditioning ducts and girders illegally as there was a stay on the said
proceedings vide order of concerned ADM Ex.PW2/1. As per him, the
said construction was within the purview of "repair work" as per
building by laws of defendant NDMC. He was not cross examined on
the said aspect. No suggestion was given by defendant NDMC to the
effect that plaintiff had not done repair work by fixing girders and air
conditioning ducts rather it was an illegal construction. Defendant
NDMC further did not explain as to how fixation of girders and air
conditioning ducts, as deposed by plaintiff were unauthorized
construction. Attention of the Court was not drawn towards any specific
or interpreted provision of law, wherein the alleged act of plaintiff, was
connoted as an illegal construction. His testimony was therefore
trustworthy and reliable.
15. PW2, was an official witness and was neither cross examined
by the defendant no. 1 nor I had any reason to doubt his testimony. I
believed his testimony.
SUIT NO. S18/08/84 Meghraj Vs. NDMC & Ors. Page No. 16
16. PW3 was an expert witness who had deposed that the report
pertaining to damages of construction in the shop in question amounted
to Rs. 58400/ only. In his testimony, he refuted the suggestion that the
estimate given by him pertaining to damages to the plaintiff was highly
exaggerated. There was nothing on the record, which had contradicted
his testimony. Argument of defendants that he was an interested witness
was baseless as the said defence was not put to this witness, seeking his
explanation. I believed his testimony to be truthful.
17. Therefore plaintiff was able to discharge the initial onus of
proving his case.
18. This brings me to the case of defendants. They had challenged
the case of plaintiff, mainly on the premise that they had legally
demolished the alleged construction done by plaintiff as plaintiff had
not complied with the notices, referred above, issued by defendant
NDMC. Secondly they claimed that they did not know about the
passing of order dated 11.11.1983 Ex.PW2/1.
19. In order to prove their case, they had examined two witnesses.
DW1 Subhash Aggarwal was the Assistant Engineer on behalf of
defendant NDMC. In his testimony he had referred to various notices
issued by defendant NDMC, against plaintiff for removal of the alleged
construction in the shop in question. He had disputed the presence of
SUIT NO. S18/08/84 Meghraj Vs. NDMC & Ors. Page No. 17
air conditioning ducts in the shop in question at the time of demolition.
He also deposed about the lack of knowledge on the part of defendant
NDMC qua the stay order Ex.PW2/1. He further deposed that record of
his department did not reveal name of the persons who were present at
the shop in question at the time of demolition, apart from officials
mentioned above. He deposed that the mezzanine floor was in fact
demolished by his department along with the unauthorized
construction. He testified that the girders present in the shop in
question were meant for bearing load of mezzanine floor.
20. In this testimony, DW1 had stated that girders fixed in the shop
in question were meant for taking load of the mezzanine floor. That
version was beyond pleading as it was not stated by the defendants in
their common written statement. Same was not considered by me. This
witness did not know whether NDMC had maintained the file of appeal
no. 512 and 513 filed by plaintiff against NDMC. It was a material want
of knowledge, on the part of this witness as in the written statement of
defendants they had admitted the fact that plaintiff had preferred appeal
against the notices issued by NDMC before concerned Additional
District Magistrate(South). If that was the case then it was incumbent
on defendants to have shown to the Court as to how they acquired
knowledge about the pendency of said appeal. They failed to do so. On
the contrary plaintiff had placed on record copy of order of the
concerned ADM Ex.PW2/1 which shows the presence of counsel of
both parties including that of defendant NDMC. Said order was never
SUIT NO. S18/08/84 Meghraj Vs. NDMC & Ors. Page No. 18
challenged by defendants. Therefore in such circumstances, the only
source, from which defendants could have known the pendency of
appeal was the said order and in that case, there was every possibility
that officers of defendant NDMC had acted contrary to the said order.
DW1 in his testimony by showing his want of knowledge regarding
maintenance of files relating to appeals preferred by the plaintiff
against defendant NDMC, only weakened the case of defendants as
being Assistant Engineer in the office of defendant NDMC and being
the person who had come to depose on the basis of record, it was
incumbent on him to have answered the aforesaid question regarding
record of files of appeal, with clarity. He failed to do so. Further in his
testimony he deposed that he had no knowledge about whether Mr.
R.K.Aggarwal was or was not the counsel of defendant NDMC on
11.11.1983. Case of plaintiff, was precisely that Mr.R.K. Aggarwal,
Advocate for defendant NDMC had appeared before the concerned
ADM on 11.11.1983. DW1 thus failed to come up with clear version of
defendants regarding presence or absence of Mr. R.K. Aggarwal before
concerned ADM as Advocate of defendant NDMC on 11.11.1983.
Therefore testimony of DW1 faltered on the said aspect also. Finally
his testimony was based on record and not on personal knowledge
regarding facts of this case so I found that he was not a relevant
witness, examined by defendants.
21. During course of recording of testimony of DW1, objections as
to the mode of proof regarding notices Ex.DW1/1 and Ex.DW1/2 were
SUIT NO. S18/08/84 Meghraj Vs. NDMC & Ors. Page No. 19
raised by the plaintiff. The said objections were not proper as DW1
had placed on record attested true copies of the said notices. The said
notices were public documents within the domain of section 74 of
Indian Evidence Act and therefore their secondary evidence could have
been led U/s. 65 of Indian Evidence Act. Defendant no. 1 placed on
record attested true copies of the said notices which means that the said
notices were copies made from original after comparing them as per
section 63 of Indian Evidence Act. Therefore objection of plaintiff was
of no consequence and was discarded by me.
22. DW2 Vikram Mehto, was the alleged process server who had
served the notices, mentioned above on plaintiff, which were issued by
defendant NDMC. This witness had prepared the service report of
notices, as mentioned in his testimony, on plaintiff. He admittedly had
not mentioned name of any witness, who had seen him preparing his
reports. Further there was no proof of the fact that on the relevant dates,
he had in fact visited the place of plaintiff for serving him with the
notices. Therefore his reports, were not free from doubts. They seemed
to be self serving documents and discarded by me.
23. At this stage, I find it relevant to decide the issue of whether
demolition of alleged illegal construction in the shop in question by the
officers of defendant NDMC on 16.12.1983, was in defiance of the stay
order Ex.PW2/1. Decision on the said aspect not only will clear the
cobweb of doubts regarding the opposite stands of both the parties qua
SUIT NO. S18/08/84 Meghraj Vs. NDMC & Ors. Page No. 20
the act of demolition rather will also help me in deciding the issues in
hand. I am accordingly appreciating the evidence on record regarding
the said aspect in my subsequent paragraphs.
24. As per plaintiff, the demolition in shop in question, could not
have taken place as there was stay order Ex.PW2/1, passed by a
competent Court. The said order in verbatim is as follows.
"11.11.1983
Counsel for both the sides are present. Heard arguments on
stay application. After hearing both the parties, I am of the view that
this is a fit case for the grant of stay. Stay granted with the condition
that status quo shall be maintained by the parties. Respondent to file
the reply of appeal and stay application on the next date of hearing. To come up on 18.11.1983 for the same.
SD/G.S.Cheema Add. District Magistrate,(South), Delhi Dated 11.11.1983"
25. Defendants in response to the assertion of plaintiff that aforesaid order was passed by the concerned ADM had taken the stand of denial. In verbatim, they had stated in their written statement "para 8 of the plaint is also denied for want of knowledge". Defendants could have checked their records and could have then responded as to whether their Advocate was or was not present before the concerned ADM on 11.11.1983. They could have taken the stand that no counsel on their behalf had appeared before concerned ADM on 11.11.1983. They chose SUIT NO. S18/08/84 Meghraj Vs. NDMC & Ors. Page No. 21 not to explain their stand and therefore their reply of denial, was found by me to be an evasive reply.
26. Apart from that, the aforesaid order, reflects that the said order was passed in the presence of counsels of both the litigating parties and that fallout of the said order was that status quo regarding the status of shop in question had to be maintained. No party was allowed to change the nature of shop in question by making any changes/alteration. Defendant NDMC did not dispute the legality of the said order. Further factual condition, as existed on the date of passing of said order, regarding shop in question was also not disputed. The said order was never challenged by the defendant NDMC in Superior Court. Defendant NDMC raised the issue that it had no knowledge about the said order. As per them, it was never communicated to them that aforesaid order was passed and therefore they acted on the belief that there was no such stay order as on the date of demolition of alleged unauthorized construction in the shop in question. Therefore they developed their case on the basis of their want of knowledge qua the said order. Plaintiff on the other hand had argued that the same was a false plea, taken by defendant NDMC. So when counsel of defendant NDMC was present in the concerned Court, when stay order was passed, it was to be understood that defendant NDMC was sufficiently notified through its counsel. After hearing the rival contentions, I find force in the submissions of plaintiff. As per his testimony, he was present in person before concerned ADM along with Mr. Aggarwal, counsel for SUIT NO. S18/08/84 Meghraj Vs. NDMC & Ors. Page No. 22 defendant NDMC on 11.11.1983 when order Ex.PW2/1 was passed. Said oral deposition was not disputed by the defendants. Defendant NDMC knew that the said appeals were filed by the plaintiff, as reflected by the copy of file maintained by defendant NDMC, qua the premises in question, annexed with report of local Commissioner, submitted in Hon'ble Delhi High Court Ex.DW1/P1. Copy of the record of defendant NDMC regarding premises in question, revealed that the said file was constructed on the basis of inspection of the premises in question. It was noted at the very start of the said record that after inspection of premises in question, unauthorized construction was found. The said noting was made by JE(UACC), NDMC. On the basis of the said noting, file moved to various officers of NDMC and after deliberations, notices U/s. 195A, 195 and 220 of Punjab Municipal Act 1911 were issued and served on the plaintiff. In one of the notings dated 08.11.1983, AE(UACC) had written that "in this connection the party has also moved an appeal in the Court for grant of stay. So far no stay has been granted". The "party" referred in the said noting was the plaintiff and the "appeal" referred therein, was the appeal, in which aforesaid order of concerned ADM was passed. The copy of the said file, was a relevant record as on the basis of the notings, mentioned therein, of various officers of defendant NDMC, order of demolition in premises in question of the alleged construction done by plaintiff was made and later on executed. When it was noted by the concerned officer in the said record that an appeal had been preferred by plaintiff for grant of stay, then it implied that defendant NDMC knew the SUIT NO. S18/08/84 Meghraj Vs. NDMC & Ors. Page No. 23 pendency of the said appeal and that till that day, no stay order was passed by the concerned Court. The said knowledge on the part of officer of defendant NDMC coupled with presence of counsel of defendant NDMC in the proceedings before concerned ADM on 11.11.1983 Ex.PW2/1, clearly indicated and proved that defendant NDMC had the knowledge about passing of stay order Ex.PW2/1, against them. Counsel of defendant NDMC, being its authorized representative was present before the concerned ADM on 11.11.1983 and by virtue of his presence, noted in order Ex.PW2/1, I presumed that the said counsel must have informed the concerned officer of NDMC. Even if the said counsel of defendant NDMC had not informed the concerned officer of defendant NDMC, then also plaintiff cannot be blamed for the said sheer negligence of the counsel for defendant NDMC. Being representative of defendant NDMC, notice to the concerned counsel of defendant NDMC about order Ex.PW2/1, implied that it was sufficient notice to defendant NDMC. The intra department exchange of information was the sole domain of defendant NDMC in which plaintiff had not claim, rather he could not have made any claim, as he was stranger and a person without locustandi in dealing with the said internal arrangement of defendant NDMC. At the same time, section 114 illustration E of Indian Evidence Act provides that Court may presume that official acts have been regularly performed. In this case, on the basis of said presumption, I presumed that the counsel for the defendant NDMC had in fact informed the concerned officer of defendant NDMC regarding passing of order Ex.PW2/1. Defendant SUIT NO. S18/08/84 Meghraj Vs. NDMC & Ors. Page No. 24 NDMC on the other hand did not rebut the said presumption by raising any defence or any possibility. Defendants have not disputed the said order and it had attained finality. The net result was that I found that order Ex.PW2/1 held its ground and was passed in the presence of counsel of defendant NDMC. On the basis of said conclusion, I further found that the act of demolition of shop in question, by officers of defendant NDMC, was not proper and rather was illegal in nature. Therefore in view of aforesaid appreciation, the question, whether officers of defendant NDMC had or had not the knowledge about the said order, became redundant. Defendant NDMC, could have examined the counsel, who had appeared on their behalf before concerned ADM on the date of passing of order Ex.PW2/1. They could have examined the concerned Administrator/concerned officer who had ordered demolition in shop in question on 16.12.1983, so that the circumstances in which the order of demolition was passed, could be appreciated. They did not do either of the said act. Therefore the position which emerged on the basis of aforesaid appreciation, was that the demolition in shop in question of the alleged unauthorized construction was an illegal act on the part of defendant NDMC, as it was contrary to the order of the Court Ex.PW2/1.
27. Coming back to the issues in hand.
Issue no. 1 : Whether the suit is bad for misjoinder/non joinder of necessary parties? If so, to what effect? OPD SUIT NO. S18/08/84 Meghraj Vs. NDMC & Ors. Page No. 25
28. It was the defendant no. 1 who had raised the plea of misjoinder/non joinder of necessary parties against the suit of plaintiff. As per defendant no. 1 owners Chaudhary Ram Nath and Chaudhary Rishi Kumar were the necessary parties in this case. It was alleged by defendant no. 1 that the owners of the shop in question were required in this case, as they would have cleared the picture regarding unauthorized construction in the shop in question and also with regard to receiving of notices in question, issued by defendant NDMC. Contrary to their own stand, defendants did not raise the said issue during trial. Plaintiff witnesses were not examined with regard to presence/absence of owners of shop in question. There was even, no suggestion of non implication of the owners of shop in question for some reason, given by defendants to the plaintiff witnesses. Defendants also did not lead any evidence to the effect that owners of shop in question, were necessary for some specific purpose or that in the absence of owners of shop in question, effective decree cannot be passed against defendants. So defendants did not discharge the onus of proving the aforesaid issue, by either challenging the case of plaintiff or by leading evidence in support of their plaint. Even otherwise I failed to understand, the relevance of implication of owners of shop in question, in this case for the reason that it was nobody's case that owners of shop in question had witnessed the demolition in question. Both the litigating parties, agreed that demolition in shop in question, had occurred on 16.12.1983. Receiving or non receiving of notices issued by defendant NDMC or unauthorized construction in the shop in question, lost its significance, SUIT NO. S18/08/84 Meghraj Vs. NDMC & Ors. Page No. 26 in the wake of stay order Ex.PW2/1, qua the shop in question. Once the matter of alleged unauthorized construction was subjudice before Ld. ADM and stay order was passed, defendant NDMC's officials could not have moved further in pursuit of their administrative order of demolition of alleged construction. Further the said alleged construction, which was demolished by the defendant NDMC's officials, was constructed by the plaintiff and not by the owners of shop in question and therefore it was the plaintiff who was the aggrieved party and defendant NDMC's officials who were the wrong doers. Based on aforesaid appreciation, aforesaid issue is decided against defendant NDMC.
Issue no. 2 : Whether the plaint does not disclose any cause of action?OPD
29. Onus of proving the aforesaid issue was on defendants. In my preceding paragraphs(para 12 and 13), I have already concluded that the act of defendant NDMC was not in sync with the order of the Court dated 11.11.1983, as mentioned in Ex.PW2/1. Therefore plaintiff had the right to claim damages for the wrongful acts of defendant NDMC, as alleged by him in his plaint and evidence. Accordingly present issue is decided against the defendants.
Issue no. 3 : Whether the defendant illegally and with malafide intention demolished the constructions in the premise on 16.12.1983? If so, to what effect?OPP.
SUIT NO. S18/08/84 Meghraj Vs. NDMC & Ors. Page No. 27
30. Again the onus of proving the aforesaid issue rested on shoulders of plaintiff. In view of appreciation of evidence, done in paragraphs no. 12 and 13, mentioned above, I find that plaintiff was able to discharge the onus of proving the aforesaid issue. Defendant NDMC had illegally demolished the construction, in shop in question, done by the plaintiff. The fact that they had done so contrary to the order of the Court, despite having knowledge of the said order, indicated that it was done with malafide intention. It has come in evidence of plaintiff that when officials viz. R.K. Bajaj, defendant No. 9 and I.B. Malik defendant no. 8 had come to the shop in question for demolishing the alleged construction of plaintiff, then plaintiff had apprised them by showing copy of the order Ex.PW2/1, vide which stay to the demolition proceedings was granted by the Competent Court. It had also come on record the said officers, instead of verifying the aforesaid order of the Court Ex.PW2/1, stuck to their stand that by virtue of order of Administrator, NDMC, they were bound to demolish the alleged construction in the shop in question. Subsequently after receiving the said adverse response, plaintiff along with his counsel Mr. Rajeev Bahl had gone to the office of defendant NDMC where they met Chief Architect, R.C. Sabarwal(defendant no. 7) and apprised him about the Court order Ex.PW2/1. Defendant no. 7 also avoided the plaintiff and did not give any consideration to the plea of plaintiff. Defendant no. 7 rather asked defendant no. 8 to continue with the demolition work. Subsequently plaintiff met the Administrator and told him about the order Ex.PW2/1 but he also did not look into the matter SUIT NO. S18/08/84 Meghraj Vs. NDMC & Ors. Page No. 28 and instead continued with his meeting. Defendant NDMC, on the other hand disputed the fact that copy of the order Ex.PW2/1 was shown to its officers by plaintiff on 16.12.1983. The said version was refuted by the plaintiff. Plaintiff therefore stuck to his version and in the absence of any other evidence to the contrary, I believe the said version to be true. More so, where I have already concluded in my preceding paragraphs no. 12 and 13 that officers of defendant NDMC had wrongly demolished the structure in the shop in question on 16.12.1983. On the basis of the said finding, I wondered why officers of defendant NDMC were in so hurry to demolish the alleged unauthorized structure in the shop in question, when plaintiff was apprising them about the stay order Ex.PW2/1. Normal course would have been that the order Ex.PW2/1 could have been verified by the concerned officers of defendant NDMC. Instead of verifying the legality and veracity of the said order, they were bent upon to demolish the alleged unauthorized construction in the shop in question. Even if I believe that the notices issued by defendant NDMC were properly served on the plaintiff and that the alleged construction in the shop in question was unauthorized, then also the act of officers of defendant NDMC was wrong as on the relevant day, stay order Ex.PW2/1 was in operation. Further defendant NDMC did not place on record the urgency of demolishing the alleged unauthorized construction on 16.12.1983 itself. They failed to explain as to why they could not have waited, for the next date, after verifying the status of order Ex.PW2/1. Further as per testimony of plaintiff, defendant NDMC officers demolished the false ceiling and all the SUIT NO. S18/08/84 Meghraj Vs. NDMC & Ors. Page No. 29 girders in the shop in question and it was a complete loss of the construction done by the plaintiff in the shop in question. So not only the act of officers of defendant NDMC was malafide but the extent of the said act was completely against the interest of plaintiff, as plaintiff suffered not only loss of money due to destruction of construction but also loss of faith in the Government system, as the said system had not complied with the order of the Court. The net result is that plaintiff discharged the onus of proving the aforesaid issue and the same is decided in favour of plaintiff.
Issue no. 4 : Whether the demolition was in disobedience of the injunction order of the ADM dated 11.11.1983. If so, to what effect? OPP.
31. Again plaintiff discharged the aforesaid onus of proving the issue, as found by me in my preceding paragraphs which are not repeated here for the sake of brevity. The demolition of alleged construction in the shop in question, in the wake of appreciation of evidence, done in preceding paragraphs, was in utter disobedience of the injunction order of the ADM dated 11.11.1983. The said disobedience had completely shattered the purpose of the aforesaid order dated 11.11.1983 and the right of status quo given to the plaintiff. Accordingly this issue is decided in favour of plaintiff. Issue no. 5 : To what amount of damages the plaintiff is entitled to and against whom?OPP SUIT NO. S18/08/84 Meghraj Vs. NDMC & Ors. Page No. 30 Issue no. 6 : Relief.
32. Both the aforesaid issues were interconnected with each other and therefore are decided by me, by common appreciation of evidence on record. At the very outset, based on appreciation of evidence, in my preceding paragraphs, I find that it is clear that act of officers of defendant NDMC was wrong, contrary to law and therefore plaintiff had the right to claim for damages. Plaintiff has claimed in this case damages on two accounts viz. one amounting to Rs. 2 lacs/ on the basis of the harassment and ignominious agony, which he had faced due to wrongful act of defendant NDMC and other due to damage of the construction done by him in the shop in question, based on the report of Architect Ex.PW3/1 amounting to Rs. 58400/. So far as damages on account of harassment were concerned, defendant NDMC did not dispute the fact that plaintiff had suffered harassment and agony at the hands of their officers, amounting to Rs. 2 Lacs/. There was no suggestion given to plaintiff during trial regarding the said amount being arbitrary. Further it is for an individual to assess the harassment, in a given situation, which he/she has suffered. Other party, disputing the said assessment has to come up with some stand. Defendant NDMC by not challenging the assessment of mental torture suffered by plaintiff, succumbed to his plea. Therefore plaintiff had rightly claimed that he had suffered mental harassment and agony to the tune of Rs. 2 Lacs/. In the given situation of this case, I found that plaintiff was within his rights to claim the said amount, as he was the person concerned who had faced the brunt of wrongful act of officers of SUIT NO. S18/08/84 Meghraj Vs. NDMC & Ors. Page No. 31 defendant no. 1 NDMC. Secondly plaintiff had claimed amount of Rs. 58400/ on the basis of damages of the alleged construction, based on the Architect Report Ex.PW3/1. Factum of demolition of the construction in the shop in question was not disputed by the defendants. Photographs of damaged shop Ex.PW1/4 to Ex.PW1/19, corroborated the version of plaintiff that there had occurred demolition in his tenanted shop. PW3 Phool Chand Goyal, who had prepared the report Ex.PW3/1, in his evidence had deposed that he had prepared the said report after inspection of shop in question. He specified that he had noted down the damages in his report. The said damages are reflected in the said report also. Defendants did not dispute that he was an Architect and therefore was having expert knowledge about estimation of damaged structures, just like the one in this case. He refuted the suggestion that he had exaggerated the estimation of damages. He had justified his report by stating that he had applied CPWD raids prescribed for heavy construction along with 20% for petty work in his report. Besides suggesting that the said basis of preparing report was not proper, which was refuted by him, defendants failed to place on record the proper justified estimated report regarding the damaged structure in the shop in question. There was no evidence to the effect that the demolition of shop in question had resulted in damages amounting to such and such amount. Therefore the report of Architect based on which plaintiff had claimed damages of Rs. 58400/ was proper. Defendants have raised the issue that the estimation of damages in the report Ex.PW3/1 was exaggerated. Even if said version of SUIT NO. S18/08/84 Meghraj Vs. NDMC & Ors. Page No. 32 defendants was believed, then also onus was on them to have shown the Court as to what was the proper/reasonable amount of damages in the shop in question. They did not specify the said amount of damages. Viewed from this perspective also, I found that defendants did not put forward a clear case in support of their claim. The net result was that defendants were not able to develop their case regarding damages, to which plaintiff was entitled, as a result of demolition of the structure in the shop in question.
33. So far as reliefs of passing of decree for future damages in favour of plaintiff at the rate of Rs. 500/ per day from the date of institution of the suit till the restoration of status quo ante as on 16.12.1983 and relief of passing decree for mandatory injunction in favour of plaintiff against defendants for restoration of the shop in question as it existed before demolition on 16.12.1983, were concerned, I had no occasion to appreciate the evidence on record, for deciding the said reliefs as plaintiff had withdrawn the said reliefs.
34. So far as cost of the suit was concerned, keeping in mind the fact that plaintiff had pursued this case diligently, till the time he was alive and subsequently by his LR's, along with the other facts on merit, as mentioned by me in my preceding paragraphs, I award Rs. 50000/ only as cost of the suit to the LR's of plaintiff. It is significant to mention here that by order dated 29.02.2012, Court had allowed application of LR's of deceased plaintiff Under Order 22 Rule 3 CPC resulting in SUIT NO. S18/08/84 Meghraj Vs. NDMC & Ors. Page No. 33 substitution of plaintiff by his LR's.
35. This suit was filed in the year 1984. Had this suit was decreed earlier, plaintiff would have enjoyed the benefit of interest on the amount of damages i.e. Rs. 258400/ or could have utilized the said amount by investing in some area. The said interest, also was lost by him, during all these years of trial of this matter. Therefore, in addition to aforesaid reliefs, I order amount equivalent to simple interest at the rate of 6% per annum on the amount of damages claimed by plaintiff from the day of filing of suit till its realization, to be paid by defendant NDMC.
36. Plaintiff had filed the present suit against nine defendants.
Defendant no. 1 was New Delhi Municipal Committee. Defendant no. 3, 4, 5, 6, 7, 8 and 9 were various officers of defendant no. 1 Committee. Defendant no. 3 to 9 had acted for and on behalf of defendant no. 1. Therefore I have not passed any order against defendant no. 3 to 9, in person. Defendant no. 1 has the liberty to recover the aforesaid amount, to be paid to plaintiff, from defendant no. 3 to 9, in case it find it proper as per rules/law.
37. Before coming to the conclusion, I must appreciate the arguments put forth by defendants during the course of final arguments.
38. Defendants raised the issue that as the contempt application filed SUIT NO. S18/08/84 Meghraj Vs. NDMC & Ors. Page No. 34 by the plaintiff was withdrawn so there remains no cause of action in favour of plaintiff, in this case. They developed their argument that in contempt proceedings, the necessary parties are the Court and the contempnor. Therefore if Court for any reason does not proceed with the contempt proceedings then it indicates that the Court is of the view that nothing material is there in the allegations leveled in contempt petition. The said argument was not tenable for the reason that the said contempt proceedings were not decided on merits by Hon'ble Delhi High Court and secondly that being applicant, who had brought to the notice of the Court about the alleged wrongful act of defendants, there remained a vested right with the plaintiff, either to pursue his application of contempt or not. Right to withdraw one's allegations against another, in legal proceedings, vest with the person who moves the Court. So plaintiff by withdrawing his contempt application, did not do any exceptional act. He was within his right to do so. Even otherwise consequence of the contempt proceedings and this case were different. Therefore contempt proceedings has no bearing on the present case legally.
39. Defendants next argued that the observation of chief architect at page 92 of the report annexed with the LC report Ex.DW1/D1 was just a view and had no material bearing on the case of defendants. I failed to agree with the said argument. Chief Architect, in his noting dated 14.11.1989 had noted that "if the girders have been fixed for putting up the duct that we do not have any case". The said noting was not SUIT NO. S18/08/84 Meghraj Vs. NDMC & Ors. Page No. 35 made on a waste piece of paper. It was made in official record of defendant NDMC and it was in continuation of the said noting that later on demolition orders were passed by defendant NDMC. Therefore by any stretch of imagination, it was not a view, simplicitor. It was a finding by an expert sitting on a top position of defendant NDMC ad his finding was never overruled. Therefore that being the case on one hand, I find that case of plaintiff which I believed to be true, in my preceding paragraphs, got support from the aforesaid noting of chief Architect, as there was evidently ducts for which girders were fixed in the shop in question.
40. It was next argued by defendants that counsels of plaintiff who were present at the spot were not examined, which created a lacuna in the version of plaintiff. I disagree with the same, as it is the quality of evidence which has to be appreciated and not the quantity of evidence. In this case I believed the version of plaintiff and therefore did not find relevance of examination of counsels who were present at the spot with the plaintiff.
41. Defendants also questioned that name of the counsel for defendant NDMC was not mentioned in the order of concerned ADM Ex.PW2/1 and therefore by virtue of the same, it cannot be said or believed that the said counsel had apprised defendant NDMC about the said order. Therefore defendants raised the issue that they demolished the structure in shop in question on 16.12.1983, under ignorance of the SUIT NO. S18/08/84 Meghraj Vs. NDMC & Ors. Page No. 36 order Ex.PW2/1. The said argument again was not rightly put, for the reasons that it was never raised during trial and for the reason that it was never the case of defendants that their counsel was not present in the Court of concerned ADM on 11.11.1983. Therefore I discarded the said argument. Viewed from another angle, I found that defendants did admit their negligence in demolishing the structure in the shop in question on 16.12.1983 which led to an admission on their part and thus corroborated the version of plaintiff.
42. It was also argued by defendants that there was no evidence on record which could have suggested that the plaintiff needed the structures demolished by officers of defendant NDMC for installation of AC's for running a printing press. The said argument was inconsequential as it was neither raised during trial by way of any question or suggestion put to the witness nor it was relevant in the given context of the case as I have already concluded that the alleged act of demolition of structures in shop in question, was an illegal act of defendant NDMC.
43. Defendants also raised the issue that plaintiff had not examined any officer of defendant NDMC who could have clearly stated as to whether defendant NDMC had or had not knowledge about the stay order Ex.PW2/1. Therefore the said non examination of NDMC officer, as per defendants weakened the case of plaintiff. Again I did not find any force in the said argument for the reason that even if plaintiff had SUIT NO. S18/08/84 Meghraj Vs. NDMC & Ors. Page No. 37 failed to do so, then also defendants had the opportunity to have led evidence on the said aspect, which they failed for reasons best known to them.
44. Defendants also argued that there was no evidence to the effect that the officers of defendant NDMC had in fact caused damages, as alleged by the plaintiff. As per them, it was all hypothetical. I disagreed with the same, for the reason that plaintiff had categorically stated that the officers of defendant NDMC had demolished the structure in shop in question constructed by him. His evidence was corroborated by architect report Ex.PW3/1 and the said architect had also deposed that it was the wrongful act of officers of defendant NDMC which had resulted in damage to the construction in shop in question.
45. Defendants raised the issue that damages cannot be based on unintentional wrongful act as officers of defendant NDMC had no knowledge about the stay order Ex.PW2/1. The said argument was again not proper as I have already found in my preceding paragraphs after appreciating evidence that even if officers of defendant NDMC had no knowledge about the stay order Ex.PW2/1, then also there was no occasion for them to have disbelieve the plea of plaintiff whereby he had apprised them about the stay order on the date of demolition. By doing act of demolition in haste, they called for an obvious trouble.
46. Therefore the arguments and the stand of defendants was not SUIT NO. S18/08/84 Meghraj Vs. NDMC & Ors. Page No. 38 believed by me to be credit worthy. I discarded it.
47. In view of aforesaid appreciation of evidence, present suit stands decreed against defendant no. 1 NDMC. Decree sheet be prepared accordingly.
48. File be consigned to record room after necessary compliance.
Announced in the open court (PRASHANT SHARMA)
on 30.05.2014 ARC/ACJ/CCJ: New Delhi
Patiala House Courts/30.05.2014
SUIT NO. S18/08/84 Meghraj Vs. NDMC & Ors. Page No. 39
S No. 18/08/84
Meghraj VS. NDMC & Ors.
30.05.2014
Present : Sh. Rajeev Bahl counsel for plaintiff.
Sh. Mansoor Ali counsel for defendant no. 1 NDMC.
Rest of the defendants are ex parte.
This matter is today listed for Judgement. At this stage counsel for plaintiff has filed an application under order 6 Rule 17 CPC to the effect that relief B and C mentioned in the plaint are withdrawn by the LR's of plaintiff. Notice of the said application is given to defendant no. 1 NDMC. Arguments heard. Said application is allowed, in view of contentions made therein, as the developments, mentioned in the said application had occurred subsequent to filing of present suit resulting in making the reliefs B and C mentioned in the plaint infructous.
Vide my order of even date suit stands decreed in favour of the plaintiff. Decree sheet be prepared accordingly, as per law/rules.
File be consigned to record room after necessary compliance.
(PRASHANT SHARMA) ARC/ACJ/CCJ: New Delhi Patiala House Courts/30.05.2014 SUIT NO. S18/08/84 Meghraj Vs. NDMC & Ors. Page No. 40