Delhi District Court
D.K. Wadhwa vs North Dmc on 13 February, 2025
IN THE COURT OF SH. RINKU JAIN, JSCC/ASCJ/GJ-01
(CENTRAL) TIS HAZARI COURTS, DELHI
CS No. Old no. 44/2014 (new no. 97213/16)
CNR NO. DLCT03-001191-2014
In the matter of:-
D. K. Wadhwa
S/o late Sh. H. L. Wadhwa,
Proprietor of M/s V. K. Enterprises,
R/o H. No. 175, Gujrawalan Town,
Part-II New Delhi-110009 ...Plaintiff
VERSUS
1. North Delhi Municipal Corporation
Office of : Deputy Health Officer,
Civil Line Zone,
Public Health Department,
16, Rajpur Road, Delhi-110054
Through its Commissioner
2. Dr. Alka Sharma
Registrar
University of Delhi ...Defendants
Date of Institution : 03.02.2014
Date of Reserving the Order : 12.02.2025
Date of Decision : 13.02.2025
Decision : Dismissed
CS SCJ No. 97213/16 D. K. Wadhwa vs. NDMC & Anr. Page No. 1 of 22
SUIT FOR DECLARATION AND PERMANENT
INJUNCTION
JUDGMENT
Pleadings of the plaintiff:-
1. The brief facts of the case relevant to the present adjudication are that the plaintiff is the sole proprietor of M/s V. K. Enterprises, running his business on a chef cart/mobile catering van at ground floor near Metro Parking, Chatra Marg, Delhi University. Plaintiff has a valid trade license issued by Health Department of defendant No.1/MCD. The chef carts in Delhi are placed on earmarked sites qua which no objection certificate is also obtained from the DCP Traffic HQ.
2. It is stated that plaintiff was running the chef cart since the year 1996 from a site at School of Open Learning DU.
Pursuant to the orders of the Hon'ble High Court of Delhi in WP No.4612/2010, the site of the chef cart was shifted to the present site as stated above, in the year 2011. The procedural formalities regarding the present site had been completed by the plaintiff and the Health Trade License was also granted to the plaintiff on 30.06.2011, which was subsequently renewed vide letter dated 31.03.2012 for a period of three years. The chef cart of the plaintiff is stationed at the present site after obtaining 'No Objection' from Delhi Traffic Police and is stationed on the pedestrian footpath which is 16 ft. wide. It is further stated that a pavement of 7 ft. is left for walking of the pedestrian/general public/physically challenged persons so that no obstruction is CS SCJ No. 97213/16 D. K. Wadhwa vs. NDMC & Anr. Page No. 2 of 22 caused to anyone.
3. It is further stated that plaintiff has permanently closed the front main opening of the chef cart after officials of defendant no. 1/MCD raised objections. Plaintiff now serves through the side opening of the said chef cart. The yellow strip on the pavement meant for guiding physically challenged people/blind people has been left free. It is further stated that the chef cart of the plaintiff is not causing obstruction of any kind to anyone. Plaintiff has left more than 5 ft. vacant space as required by the rules. Plaintiff has never been challaned for any misconduct while running the chef cart.
4. It is further stated that on 27.11.2013, plaintiff received a letter bearing No. DHO/CLZ/2013/1505 asking to show cause regarding complaints being received from Registrar DU by the defendant, for causing hindrance to physically challenged students in proper/free movement on the pavement. Plaintiff was asked to explain as to why relocation of the parking site of the chef cart should not be done. It is further stated that a detailed reply dated 02.12.2013 was sent by the plaintiff and plaintiff requested for a personal hearing to explain the grounds. Plaintiff did not receive any further communication and he assumed the grievance as settled.
5. It is further stated that on 28.01.2014, plaintiff received a notice directing him to give alternative sites for relocation of the chef cart failing which his license shall be revoked and the action shall be initiated as per provisions of DMC Act, 1957. The notice was issued in view of the order dated CS SCJ No. 97213/16 D. K. Wadhwa vs. NDMC & Anr. Page No. 3 of 22 26.12.2013 passed by the Court of Commissioner for persons with disabilities (hereinafter referred to as 'Commissioner') in the matter titled as Dr. Alka Sharma (Registrar DU) Vs. Smt. Padmini Singla (DC/North DMC) & Ors. vide No.4(547)/2013/wel/CD/1913-16. It is stated that plaintiff was not served with any notice or show cause by the Traffic Police or by the defendants regarding any hindrance being caused to the traffic or the passers-by. It is further stated that the copy of said order was not supplied to the plaintiff. Plaintiff wrote a letter to defendant, however, the same has not been replied to yet. The letter/notice dated 28.01.2014, as stated above, to provide alternative sites for relocation of chef cart is illegal and is in malafide as no hindrance, whatsoever, has been caused to anyone as 7 ft. free space including the yellow patti (strip) for visually challenged people has been left. The footpath on which the chef cart has been parked is incapable of being used by wheelchair as the same is not wheelchair friendly on one side i.e. near the VC residence. The said footpath was made wheelchair friendly only after issuance of letter/notice dated 28.01.2014 by the MCD. The footpath is otherwise encroached by various other vendors.
6. It is further stated that the chef cart in question is popular and about 40% of the vending is carried out by home delivery, therefore, no congestion is caused near the chef cart. The notice dated 28.01.2014 has been sent in connivance with the various canteen owners and staff of the Delhi University who were envious of the business of the plaintiff.
7. It is further stated that the notice dated 28.01.2014 has been issued without giving an opportunity and without giving CS SCJ No. 97213/16 D. K. Wadhwa vs. NDMC & Anr. Page No. 4 of 22 any show cause notice and the same is against equity, law and public policy. It is stated that plaintiff was not a party to the proceedings before the Commissioner, in which order dated 26.12.2013 had been passed. The said order of Commissioner is in complete disregard of orders of Hon'ble High Court of Delhi in WP No.2642/11 dated 19.07.2011. The order of Commissioner dated 26.12.2013 does not mention of the other sites and structure pertaining to encroachment in the other places of DU. Hence, the present suit to get the order dated 28.01.2014 bearing No. DHO/CLZ/2014/1761 declared as illegal, null and void. Plaintiff seeks a declaration to get the order of Commissioner dated 26.12.2013 bearing No.4(547)/2013/wel/CD/1913-16 as null and void, as well. Plaintiff also seeks a decree of permanent injunction to restrain defendant no.1 from revoking the license of the plaintiff and to further restrain them from taking any coercive action pursuant to issuance of notice bearing No. DHO/CLZ/2014/1761. Plaintiff lastly seeks a decree of permanent injunction for restraining the defendant no. 1/MCD from relocating the chef cart of the plaintiff till the validity of the license i.e. 31.03.2015.
8. Summons of the present suit were issued to the defendants. Defendants entered appearance and filed their written statements separately.
Pleadings of the defendants:-
9. In the written statement filed on behalf of defendant no. 1/MCD, it is stated that the present suit is barred under the provisions of Section 477/478 of DMC Act. It is stated that no CS SCJ No. 97213/16 D. K. Wadhwa vs. NDMC & Anr. Page No. 5 of 22 cause of action arose in favour of the plaintiff. Plaintiff has not challenged the judgment of Commissioner dated 26.12.2013 passed under Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995 (hereinafter referred to as 'the PD Act') before the competent forum. Plaintiff has approached the Court with unclean hands as various complaints have been received against the plaintiff regarding the extreme difficulties being faced by students with locomotor disabilities/ blind students while walking on the pavement where the chef cart of the plaintiff is located.
10. It is further stated that complaints regarding consumption of liquor and bathing of employees of the plaintiff in open, near the chef cart of the plaintiff, have also been received. A show cause notice was issued to the plaintiff on 27.11.2013, regarding the complaints. The Health Trade License was issued to the plaintiff subject to condition that he shall operate his business in such a manner so as to avoid any obstruction of any kind and the same could be revoked in case of receipt of any genuine complaint, as per the provisions of DMC Act, 1957. It is further stated that plaintiff has flouted the conditions of not causing any obstruction/encroachment on the public land and therefore, in view of order of Commissioner dated 26.12.2013, a notice dated 28.01.2014 was issued asking the plaintiff to relocate his chef cart within seven days after providing the alternative site.
11. It is further stated that the suit of the plaintiff is bad for non-joinder of necessary parties i.e. Commissioner, DCP CS SCJ No. 97213/16 D. K. Wadhwa vs. NDMC & Anr. Page No. 6 of 22 Traffic and the complaints who made complaints against the chef carts.
12. In the written statement filed on behalf of defendant no.2, it is stated that the suit is liable to be dismissed for want of statutory notice u/s 80 CPC and u/s 477 of DMC Act. It is further stated that the present Court is not the appropriate forum to challenge the order of dated 26.12.2013 passed by the Commissioner under the PD Act. Defendant No.2 has also taken the ground of non-joinder of the necessary parties. It is further stated that plaintiff is not having any cause of action. Plaintiff has suppressed the material facts and the present suit is nothing but the abuse of process of the Court.
Replication:-
13. In the separate replications filed on behalf of plaintiff to the written statements of both the defendants, all the averments of the written statements are stated to be wrong and baseless and the same are categorically denied by the plaintiff.
Issues:-
14. After completion of pleadings, issues were settled and from the pleadings, following issues were framed: -
1. Whether the plaintiff is entitled for the relief of permanent injunction as prayed in the plaint? OPP
2. Whether the plaintiff is entitled for the relief of declaration as prayed in the plaint? OPP
3. Whether the suit of the plaintiff is barred by the CS SCJ No. 97213/16 D. K. Wadhwa vs. NDMC & Anr. Page No. 7 of 22 provisions of Section 477/478 of the DMC Act for want of statutory notice ? OPD-1
4. Whether the suit is bad for non-joinder of necessary parties as pleaded in preliminary objection no. 3 of WS of defendant no. 2? OPD-2
5. Relief.
Thereafter, vide order dated 13.10.2016, an additional issue was framed which is as follows:-
"4A. Whether the suit is not maintainable and is liable to be dismissed under Order 7 Rule 11 CPC. In view of the provisions as contained in Section 71 of the PD Act as pleaded in the preliminary objection no.2 of the written statement of defendant no.2? OPD-2?
Evidence of the plaintiff:-
15. After settlement of issues, matter was fixed for plaintiff's evidence. Plaintiff examined himself as PW1 and tendered his evidence by way of affidavit as Ex.PW1/A. He reiterated the facts of the plaintiff in his evidence affidavit and relied upon following documents: -
1. Site Plan Ex.PW1/1.
2. NOC dt. 02.06.2011 issued by Traffic Police Ex.PW1/2.
3. Trace License dt. 30.06.2011 Ex.PW1/3.
4. Copy of renewal letter dt. 31.03.2012 Ex.PW1/4.
5. Receipt dt. 13.04.2012 & 20.03.2015 Ex.PW1/5 & Ex.PW1/6 respectively.
6. Original notice dt. 27.11.2013 Ex.PW1/7.
7. Copy of reply dt. 02.12.2013 Ex.PW1/8.
CS SCJ No. 97213/16 D. K. Wadhwa vs. NDMC & Anr. Page No. 8 of 22
8. Notice dt. 28.01.2024 Ex.PW1/9.
9. Copy of reply to notice dt. 28.01.2014 Ex.PW1/10.
10. Certified copy of order of Commissioner dt.
26.12.2013 Ex.PW1/11.
12. Photographs Ex.PW1/12 to Ex.PW1/27.
13. Copy of show cause notice dt. 12.03.2014 and reply dt. 20.03.2014 Ex.PW1/28 & Ex.PW1/29 respectively.
14. Photographs Ex.PW1/30 to Ex. PW1/35.
15. CD and certificate u/s 65-B of Indian Evidence Act Ex.PW1/36 and Ex.PW1/36-A.
16. Certified copy of order of Hon'ble High Court of Delhi dt. 19.07.2011 Ex.PW1/37.
17. Photographs Ex.PW1/38 to Ex.PW1/64.
He also relied upon notice u/o 12 Rule 8 CPC and the original postal receipt Ex.PW1/X and Ex.PW1/Y respectively.
15.1 In his cross examination, he admitted that no statutory notice was given to the MCD, as it was not required. He deposed that he obtained the NOC Ex.PW1/2 of DCP Traffic before grant of Health Trade License. He admitted that the Commissioner passed an order dt. 26.12.2013 under the PD Act directing the defendant No.1 to remove him from the site in question. He could not remember whether any application was filed him with the Commissioner to implead him as a party. He categorically denied that the photographs filed by him were forged and fabricated or he was maintaining unhygienic and CS SCJ No. 97213/16 D. K. Wadhwa vs. NDMC & Anr. Page No. 9 of 22 insanitary conditions near the food cart. He also denied that he had violated the terms and conditions of the Health Trade License.
15.2 He admitted the photographs Ex.PW1/D1 to Ex.PW1/D5 are the photographs of the site of the chef cart, its location and the pavement. He could not tell the date when he received the copy of the orders and proceedings of the Commissioner. He denied that there was any obstruction in the movement to the pedestrians/disabled persons, due to his food cart. He denied that the order of Commissioner dt. 26.12.2013 was a general direction. He deposed that the said order of the Commissioner was specifically against him. He deposed that photographs relied upon him were taken by professional photographer, however, the same were not got developed in his presence.
16. Plaintiff examined Sh. H. S. Hussain, Superintendent in the office of Commissioner for Persons with Disabilities as PW2, who brought the original order in case No.4(547)/2013/wel/CD/1913-16 dt. 26.12.2013 by the Commissioner for Persons with Disabilities and deposed that Ex.PW1/11 (certified copy of order of the Commissioner dt. 26.12.2013) is correct as per the record. The application dt. 06.02.2014 vide which the said certified copy was obtained is Ex.PW2/1.
17. Plaintiff examined Sh. Ravi Arora, Proprietor Shivam Colors as PW3, who deposed that photographs Ex.PW1/30 to Ex.PW1/35 and Ex.PW1/38 to Ex.PW1/64 were CS SCJ No. 97213/16 D. K. Wadhwa vs. NDMC & Anr. Page No. 10 of 22 printed by him at his studio.
18. Sh. Devender Kumar, Judicial Assistant, Record Room, Hon'ble High Court of Delhi was examined as PW4, who brought the CD of WP (C) No.2642/2011 as Ex. PW4/1 and certificate u/s 65-B of Indian Evidence Act i.e. Ex.PW4/2. He deposed that the original record had been destructed.
19. Sh. Romi Sethi was examined as PW5, who deposed that he was a professional photographer, who clicked photographs Ex.PW1/12 to Ex.PW1/27, Ex.PW1/30 to Ex.PW1/35 and Ex.PW1/38 to Ex.PW1/64. He deposed that he printed photographs Ex.PW1/12 to Ex.PW1/27. He prepared a CD of the same which was Ex.PW1/36. He also brought a pen- drive containing all the above-mentioned photographs which was Ex.PW5/1 (objected to by Ld. Counsel for the defendant No.2 on the ground of admissibility and mode of proof).
19.1 In his cross examination, he deposed that he was a professional photographer for about 20 years. He did not have any GST or VAT registration number for the said business. He deposed that he did not maintain any record of his customers. He took the photographs in question about 4-5 years ago. He was aware of the purpose for which photographs were taken. He did not issue invoice/bill for the services rendered by him to the plaintiff. The photographs were taken by him near Metro parking on a normal working day in the forenoon hours. He lastly deposed that he did not have any color lab for developing the photographs, however, the printouts of the photographs were taken by him from his Canon printer.
CS SCJ No. 97213/16 D. K. Wadhwa vs. NDMC & Anr. Page No. 11 of 22
20. Thereafter, PE was closed vide order dated 28.03.2019 and the matter was fixed for DE .
Evidence of the Defendant:-
21. Defendant No.1 examined Sh. Ashok Kumar Gupta, Public Health Inspector as DW1, who tendered his evidence by way of an affidavit Ex. DW1/A. He stated on the lines of written statement filed on behalf of defendant No.1 and relied upon show cause notice dt. 27.11.2013 already Ex.PW1/7 and letter/notice dt. 28.01.2024 already Ex.PW1/9.
21.1 In his cross examination, he deposed that he was posted in Civil Lines Zone in the year 2013-14. He admitted that he had not placed any document to show his authorization to depose in the Court, however, he voluntarily submitted that he, being the officer in-charge of the area where chef cart in question is operating, is a competent witness. He admitted that the Health Trade License of the plaintiff had been renewed till 31.03.2021.
He brought the photocopy of said extension is Ex.DW1/XA. He admitted that the show cause notice Ex.PW1/7 had not been issued by him. He, however, deposed that the same had been issued by the then PHI Sh. R. P. Bhardwaj. He admitted that he had no personal knowledge regarding show cause notice Ex.PW1/7 and he never visited the site in question, at the relevant time.
21.2 He had no knowledge about the width of the footpath or whether there was enough space for free movement, where the chef cart was stationed. He admitted that there was CS SCJ No. 97213/16 D. K. Wadhwa vs. NDMC & Anr. Page No. 12 of 22 enough space in front of the chef cart to allow free movement of the general public. At the same time, he was unable to tell whether the free space was enough space for movement of wheelchair or not. He deposed that no other notice was issued to the plaintiff before 27.11.2013. He could not tell whether notice dated 28.01.2014 was issued in connivance with the office of Commissioner. He admitted that he had no personal knowledge of the present case. He admitted that no assessment of traffic movement was done by MCD before renewal of the Health Trade License, however, the license was renewed upon the NOC given by DCP Traffic.
21.3 DW1 brought the original department file containing complaints lodged by Delhi University against the chef cart in question Ex.DW1/D2 (colly. 23 pages). He could not tell whether any action was initiated by the MCD pursuant to the said complaints. He deposed that the front portion of the chef cart was not open when he last visited the same about a week before deposing. He admitted that the photographs Ex. PW1/D-3, Ex.PW1/D-4 and PW1/D-5, shown to him, pertain to the chef cart in question and its location.
22. Defendant No.2 examined Dr. (Prof.) Bipin Kumar Tiwary, OSD, Equal Opportunity Cell, University of Delhi as DW2, who tendered his evidence by way of affidavit Ex.DW2/A and deposed on the lines of written statement of defendant No.2. He relied upon following documents: -
1. Ex.PE1/11, Ex.PW1/D1, Ex.PW1/D2, Ex.PW1/D3, Ex.PW1/D4, Ex.PW1/D5 and Ex.PW1/37.
CS SCJ No. 97213/16 D. K. Wadhwa vs. NDMC & Anr. Page No. 13 of 22 These are already exhibited in the evidence of plaintiff and Ex.DW1/D2 (Colly). Exhibited in the evidence of DW1.
2. Ex.DW2/1 two compact disc (CD) filed before the Commissioner for person with disabilities, NCT Delhi.
3. Ex.DW2/2 guidelines of zoning systems under institute of transportation and development policy.
4. Ex.DW2/3 order dt. 18.01.2011 of Hon'ble Delhi High Court passed in WP(C) No. 4612/2010 and WP(C) No. 7676/2010
5. Ex. DW2/4 order dt. 08.04.2011 passed by Hon'ble Delhi High Court in WP(C) No. 2362/2011.
22.1 In his cross examination, he admitted that order of Commissioner dated 26.12.2013 Ex. PW1/11 was w.r.t. the entire campus of University of Delhi and he was personally present during the proceedings in the capacity of OSD (Equal Opportunities Cell). He admitted that they have not been able to create barrier free footpaths and roads in the University Campus for persons with disabilities. He deposed that Traffic Police was made a party to the proceedings before the Commissioner.
22.2 DW2 was confronted with photographs Ex.PW1/12 & Ex.PW1/13 and was suggested that there is no obstruction being caused by the chef cart in question, to which witness categorically denied and stated that the photographs pertain to a holiday and are not of the peak hours of the day. He admitted that no action had been taken against any other chef cart pursuant to the orders of the Commissioner. He denied that plaintiff was CS SCJ No. 97213/16 D. K. Wadhwa vs. NDMC & Anr. Page No. 14 of 22 deliberately not made a party to the proceedings before the Commissioner.
23. Defendant No.2 further examined Sh. Vijay Kumar Rajput, AAO from the office of Commissioner for Persons with Disabilities GNCTD as D2W2, who brought the entire record of the case bearing No. 4(547)/2013/wel/CD/1913-16 titled as Alka Sharma Vs. Smt. Padmini Singla, which was decided on 26.12.2013, the copy of the case file is Ex. D2W2/X (colly. running into 19 pages) (OSR). He also brought copy of order dated 26.12.2013 Ex. D2W2/PX1. He also brought two attendance sheets dated 09.12.2013 Ex. D2W2/PX2 and Ex. D2W2/PX3.
24. The defendant's evidence on behalf of defendant no. 1 was closed on 11.02.2020 and on behalf of defendant no. 2 was closed vide order dated 16.03.2023 and thereafter, matter was fixed for final arguments.
Decision with reasons:-
25. I have heard the arguments advanced on behalf of both the sides and I have carefully gone through the judicial record. The issue-wise finding is as follows: -
ISSUE No. 4A Whether the suit is not maintainable and is liable to be dismissed under Order 7 Rule 11 CPC. In view of the provisions as contained in Section 71 of the PD Act as pleaded in the preliminary objection no.2 of the written statement of defendant no.2? OPD-2 CS SCJ No. 97213/16 D. K. Wadhwa vs. NDMC & Anr. Page No. 15 of 22
26. The onus to prove this issue was upon defendant no.2. Apart from mere averment that the present suit is barred by virtue of Section 71 of the PD Act, defendant no. 2 has not led any evidence, whatsoever, to discharge their burden. The text of section 71 of The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 is reproduced below:
71. Protection of action taken in good faith - No suit, prosecution or other legal proceedings shall lie against the Central Government, the State Governments or the local authority or any officer of the Government in respect of anything which is done in good faith or intended to be done in pursuance of this Act and any rules or orders made there under.
27. Section 71 of the PD Act only provides for protection of any action taken in good faith and protects the Central Govt., State Govt. and local authorities from any suit, prosecution or legal proceedings for an action taken in good faith. This section by no figment of imagination bars the remedy, on merits, against orders made under the PD Act.
Therefore, this issue is decided against defendant no.2 and in favour of the plaintiff.
ISSUE No. 3Whether the suit of the plaintiff is barred by the provisions of Section 477/478 of the DMC Act for want of statutory notice? OPD-1
28. The onus to prove this issue was upon defendant CS SCJ No. 97213/16 D. K. Wadhwa vs. NDMC & Anr. Page No. 16 of 22 no.1. It is the objection of defendant No. 1/MCD that the present suit is barred under sections 477/478 of DMC Act for want of statutory notice. The objection is not legally tenable. The basic object of sections 477/478 of DMC Act is to prevent matters from coming to Court and once the matter has reached the court and is contested, the suit ought not be dismissed on technical grounds. In this regard, reliance can be had to the judgment of Col. A. B. Singh (through LRs) v. Shri Chunnilal Sawhney and Others, 2011 SCC OnLine Del 4289. Therefore, once defendant No.1/MCD has contested the present suit, it cannot be dismissed by recourse to section 477 and 478 of DMC Act.
Accordingly, this issue is decided against defendant No. 1 and in favour of the plaintiff.
ISSUE No. 4Whether the suit is bad for non-joinder of necessary parties as pleaded in preliminary objection no. 3 of WS of defendant no. 2? OPD-2
29. The onus to prove this issue was upon defendant no.2. It is a settled position of law that a necessary party is one whose presence is indispensable to the constitution of the suit/proceedings and against whom the relief is sought. In Kasturi v. Iyyamperumal, (2005) 6 SCC 733, Hon'ble Supreme court has laid down two tests for determining the question whether a particular party is a nece ssary party to a proceeding:
(i) there must be a right to some relief against such party in respect of the matter involved in the proceeding in question; and CS SCJ No. 97213/16 D. K. Wadhwa vs. NDMC & Anr. Page No. 17 of 22
(ii) it should not be possible to pass an effective decree in absence of such a party.
30. In the case in hand, defendant no. 2 has stated that suit is bad for non-joinder of Deputy Commissioner of Police (Traffic) as the NOC for parking of the chef cart is granted by DCP Traffic only. From the pleadings of both the parties, it is clear that Health Trade License as required to operate chef cart is granted by the MCD, subject to giving of NOC by the DCP Traffic. The NOC is given by DCP Traffic after considering that the activity would not cause traffic congestion in the area/road near the chef cart among other considerations. At the same time, the chef cart of the plaintiff is stated to be causing hindrance and obstruction to the locomotor disabled and visually disabled students/persons, while walking of the pavement/footpath. The congestion of traffic is not stated to be the cause of obstruction to locomotor and visually disabled persons. Defendant no. 1/MCD has given a notice dt. 28.01.2014 only after the order of Commissioner dt. 26.12.2013 and not due to complaints of traffic congestion or any other reason pertaining to Traffic Police. Defendant no. 2 has not led any evidence to discharge the onus, casted upon them, to prove this issue. It is, therefore, held that the DCP, Traffic is not a necessary party to the present adjudication.
In view of the above discussion, this issue is decided against defendant no. 2 and in favour of the plaintiff.
ISSUE No. 1Whether the plaintiff is entitled for the relief of CS SCJ No. 97213/16 D. K. Wadhwa vs. NDMC & Anr. Page No. 18 of 22 permanent injunction as prayed in the plaint? OPP ISSUE No. 2 Whether the plaintiff is entitled for the relief of declaration as prayed in the plaint? OPP
31. Issues no. 1 & 2 are taken up together as they involve common discussion. The onus to prove both these issues was upon the plaintiff. It is the contention of the plaintiff that the order of the Commissioner dt. 26.12.2013 has been passed without adhering to the principles of natural justice as he was not made a party to the proceedings before the commissioner and at the same time plaintiff also contends that the said order is a result of the envious behaviour of the various canteen owners and the staff of Delhi University.
32. It is pertinent to mention that Health Trade License is granted by defendant No.1/MCD to run chef carts, on the sites, which are otherwise public places or places of public utility. The said chef carts are operated subject to the terms and conditions of the NOC issued by Traffic Police. The Health Trade License is subject to cancellation/revocation upon breach of any term and condition of the NOC as can be culled out from the perusal of the NOC given by the perusal of the NOC Ex. PW1/2. One such condition of NOC is that the chef cart shall not result in any kind of obstruction.
33. That vide letter/notice dated 28.01.2014, plaintiff has only been asked to provide alternative sites within the specific time, which by necessary implication amounts to following of principles of natural justice. Plaintiff has sought that Order of Commissioner dt. 27.12.2013 as well as notice of MCD CS SCJ No. 97213/16 D. K. Wadhwa vs. NDMC & Anr. Page No. 19 of 22 dt. 28.01.2014 be declared as null and void. The order of the commissioner dt. 27.12.2013 has been passed in view of the provisions contained in the PD Act and to achieve the purpose of the PD Act i.e. Full Participation and Equality of the People with Disabilities. The proceedings of the commissioner were neither against the plaintiff herein particularly nor plaintiff is having any permanent right to station his chef cart at any spot of his choice. Perusal of the order of the commissioner dt. 27.12.2013 Ex. PW1/11 shows that the order has been passed after considering the overall facts & circumstances and the evidence available with them.
34. That the NOC by the Traffic police is granted after ensuring the feasibility that the same might not cause any traffic congestion among other considerations. Operation of chef cart is subject to condition that the same shall not cause any obstruction to anyone. However, there is admittedly a complaint dt. 27.11.2013 Ex. PW1/7 against the plaintiff herein regarding obstruction being caused to physically challenged students in proper movement on footpath and the Commissioner has acted upon the said complaint only. Commissioner has acted upon the complaints of obstruction and is well within his authority and as per provisions of the PD Act, while passing the order.
35. In view of the fact, that the order of commissioner dt. 27.12.2013 is a general direction and not against any specific person, impleading of plaintiff in the proceedings before the commissioner was not necessary. The order had been passed in larger public good of the Locomotor/ visually disabled persons & students for their free movement and to make accessible the CS SCJ No. 97213/16 D. K. Wadhwa vs. NDMC & Anr. Page No. 20 of 22 institutions of the university to them.
36. That not even an iota of evidence has been led by the plaintiff to buttress his claim that order of commissioner dt. 27.12.2013 has been passed owing to any envy or ill-will of the employees of the canteens or staff of the university.
37. That plaintiff has not impleaded the Commissioner for Persons with Disability as a party to the present suit. Plaintiff has challenged the order of the commissioner dt. 27.12.2013 in the present suit. The Commissioner was a necessary party to the present suit, as it is his order which has is sought to be declared as null and void. Without the presence of commissioner, no decree can be passed effectively. Therefore, the present suit is bad for non-joinder of necessary party i.e. Commissioner for persons with disability.
38. In view of the above discussion, all other arguments, submissions and averments pales into insignificance. The suit of the plaintiff is devoid of any merit.
39. The cumulative effect of above discussion is that the plaintiff has failed to discharge his onus to prove issues no. 1 & 2. Since the plaintiff is not entitled to the primary relief of declaration therefore, he is not entitled to the relief of injunction as well.
Relief:
40. Since, the issues No. 1 and 2 are decided against the plaintiff, therefore, the plaintiff is not entitled to any relief.
41. In view of the above findings, the suit of the plaintiff is dismissed.
CS SCJ No. 97213/16 D. K. Wadhwa vs. NDMC & Anr. Page No. 21 of 22
42. Realistic costs of Rs. 1 lac in terms of the judgment of Salem Advocate Bar Association, Tamil Nadu Vs Union of India, 2005 6 SCC 344. The cost shall be deposited in National Fund for Persons with Disabilities.
43. Decree sheet be prepared accordingly.
44. File be consigned to the Record Room after due Digitally compliance. signed by RINKU JAIN RINKU Date:
Announced in open Court JAIN 2025.02.13
16:55:39
On this 13th Day of February, 2025 +0530
(RINKU JAIN)
JSCC/ASCJ/GJ-01 (CENTRAL)
TIS HAZARI COURTS/DELHI
CS SCJ No. 97213/16 D. K. Wadhwa vs. NDMC & Anr. Page No. 22 of 22