Delhi District Court
Residential Welfare Association ... vs Municipal Corporation Of Delhi on 5 January, 2013
IN THE COURT OF SH. ANIL KUMAR SISODIA, ADJ06
(WEST DISTRICT), TIS HAZARI COURTS, DELHI.
MCA 12 OF 2012
Residential Welfare Association (Regd.)
Tilak Nagar East,
At 7/38, Tilak Nagar,
New Delhi110018.
Through its General Secretary ............ APPELLANT
Versus
1. Municipal Corporation of Delhi
Town Hall, Chandni Chowk,
Delhi.
2. The Addl. Commissioner (Traffic)
Police Headquarters, I.T.O.
New Delhi.
3. The Chief Fire Officer,
Delhi Fire Service,
Head Quarter, Connaught Place,
New Delhi110001.
4. The SHO,
P.S. Tilak Nagar,
New Delhi. ............ RESPONDENTS
MCA12/12 Page : 1/19
Date of institution : 18.12.2012
Order reserved on : 03.01.2013
Date of Order : 05.01.2013
O R D E R :
1. Vide this order, I shall dispose off the present appeal filed by the appellant. The appellant is aggrieved by the order dated 26.11.2012 vide which Ld. Trial Court dismissed its application under Order 39 Rule 1&2 CPC for grant of interim injunction.
2. The facts necessary for the disposal of the appeal are that the appellant filed a suit for Permanent injunction against the respondents on 14.09.2011 on the ground of welfare of the residents of the Society. The appellant colony has 155 built up residential plots. It has been submitted that the peaceful living of the society was disturbed by the petty thefts, chain snatching and public nuisance created by uncivilized persons and despite best efforts, the appellant could not stop such illegal and unlawful activities. The appellant society received a number of suggestions from various quarters and one advice was received from the respondent no.1/ MCD dated 29.01.2009 alongwith its guidelines to affix iron gates on each and every entry and exit points but on the advice of respondent no.1, 12 iron gates were MCA12/12 Page : 2/19 built and installed in the year 200809 and 1 more gate was added in 2011. It has been submitted that respondent no.1 had issued the policy guidelines for installation of gates for security purpose in colonies to the registered RWA vide R.O. No.250/DIP/0708 by which sanction for installation of iron gate will be accorded within 45 days from the date of receiving of proposal from the concerned RWA, as provided under para 3(v) of the guidelines. The appellant had installed the iron gates before receiving the guidelines of MCD and vide letter no. 2119/EE(M)III/W/2009, dated 29.01.2009, respondent no.1 advised the appellant to seek clearance for installation of the iron gate from the fire department, traffic department and from local police to enable to respondent no.1 to regularize the erected gates. Hence, as per directions of respondent no.1, the appellant sought permission from respondents no. 1, 2, 3 and 4 on 04.02.2009 and 30.12.2009 alongwith topography of the area and installed gates but even after personal approaches and requests, no communication was received by the appellant from any of the respondents. Thereafter, respondent no.1 issued another letter no. LD/EE(M III)/W2/2011/1656, dated MCA12/12 Page : 3/19 02.09.2011 asking the appellant to remove one gate installed in 2011 in front of H.Nos. 6/8 and 5B/19 to have right to way on 50 ft. road and even threatened to demolish all the remaining 12 gates raised by the appellant. On this, the appellant filed a suit no. 147/11 for permanent injunction on 14.09.2011 alongwith stay application and the Ld. Trial Court had issued notices to the respondents on 14.09.2011 but in the evening of 14.09.2011 itself, the respondent no.1 had demolished one iron gate no. 13 installed in August, 2011 even after being served with the notice. It has been submitted that one Sh. S.S. Chatrath and Shri Jang Bahadur Singh Rana had moved an application u/O 1 Rule 10 r/w Section 151 CPC for impleading them as party in the suit, the application was listed before the Court on 27.03.2012 and the Court had given time to file reply and arguments and adjourned the matter for 01.05.2012 and simultaneously, permitted the respondent no.1 to take appropriate action against the illegal installation of the gates for which the appellant had already sought permission from the respondents. The appellant had moved a C.M.(M) No. 442 of 2012 on 12.04.2012 against the order dated 27.03.2012 before MCA12/12 Page : 4/19 the Hon'ble Delhi High Court and vide order dated 24.04.2012, the Hon'ble High Court had stayed the order dated 27.03.2012. Vide order dated 26.11.2012, the Ld. Trial Court had dismissed the applications u/O 1 Rule 10 CPC and u/O 39 Rule 1 and 2 CPC.
3. The respondents contested the suit by filing their Written Statements separately.
4. Respondent no.1 in its WS had taken preliminary objections that the suit is barred by the provisions contained under Sec. 477 and 478 of the DMC Act for want of service of statutory notice; the plaint does not disclose any cause of action and is liable to be rejected u/O 7 Rule 11 CPC; the appellant has concealed the true and material facts as they had installed gate at the impugned site without any prior permission and in contravention of existing policy; the impugned area was inspected by the area official and noticed that the appellant had not applied for the regularization of the existing date; the gate installed at pointA of the layout plan filed by the appellant has already been removed on the basis of complaint. On merits, it has been denied that the respondent was withholding MCA12/12 Page : 5/19 the sanction permission of the gate already installed arbitrarily, illegally and deliberately. The territorial jurisdiction was admitted, however, the legal and pecuniary jurisdiction was denied and prayed that the suit be dismissed with costs.
5. Respondent no.2 in its WS had taken preliminary objections that no notice under Section 80 CPC had been served upon the respondent and hence, the suit was not maintainable; the appellant had no cause of action to file the present suit; the suit was not maintainable for nonjoinder/ misjoinder of parties. In the preliminary submissions, it was stated that respondent no.4 had been threatening to demolish the gate and the appellant had prayed to pass a decree against respondent no.4; no relief had been sought by the appellant against the respondent no.2. On merits, in reply to para no. 8, it was submitted that no such incident was reported to respondent no.2. It was prayed that the suit may be dismissed qua respondent no.2 with heavy costs.
6. Respondent no.3 did not file any WS.
7. Respondent no.4 in its WS had taken preliminary objections that no notice under Section 80 CPC had been served upon the MCA12/12 Page : 6/19 respondent and hence, the suit was not maintainable; the appellant had no cause of action to file the present suit; the suit was not maintainable for nonjoinder/ misjoinder of parties. In the preliminary submissions, it was stated that some complaints were received mentioning therein that some of the gates are closed by influential people for fulfilling their vested interests ignoring the necessity of others and in this regard, a copy of circular no.D/664/SE (SE), dated 25.06.2007 of the Engineering Department of respondent no.1 was handedover to the appellant. It has been submitted that a letter regarding regulating/ installing/ removal of gates in 5, 6, 7 and 8 Blocks, Tilak Nagar, New Delhi was despatched to MCD (West Zone) vide no. 3636/SHO/TN, dated 29.08.2011 and in response to that letter no.D/EE(MIII)/WZ/2011/1656, dated 02.09.2011 was received at P.S. Tilak Nagar regarding removal of illegally installed gate on a 50 feet wide road in front of house no. 6/8 and 5B/19, Tilak Nagar and the same were demolished by respondent no.1 on 14.09.2011 with the assistance of local police. On merits, it has been stated that the Project "Meri Gali" was launched and barricades were kept at the main entry/ MCA12/12 Page : 7/19 exit points of the colony. It has been stated that thefts are on rise in whole Delhi but the beat staff had controlled the same by patrolling during night hours. It was stated that MCD has the overall control over the installation/ removal/ regulating the gates. It was stated that industrial area/ banquet hall is also adjoining the colony and these cannot be prevented to use the roads of the colony. It has been stated that respondent no.4 is bound to provide the police force as and when required by respondent no.1 for demolition/ construction purposes. It was prayed that the suit may be dismissed qua respondent no.4 with heavy costs.
8. The appellant filed replications denying the contents of the Written Statements of respondents no. 1, 2 and 4 in so far as they were contrary to the plaint. The contents of plaint were reiterated and reaffirmed.
9. After hearing the parties, Ld. Trial Court dismissed the injunction application u/O 39 Rule 1&2 CPC vide impugned order dated 26.11.2012.
10.Aggrieved by the aforesaid order, the appellant has challenged the same on the ground that the impugned order was passed by MCA12/12 Page : 8/19 the Ld. Trial Court without considering the facts, circumstances, law and all cannons of justice. The impugned order passed by Ld. Trial Court resulted in gross miscarriage of justice and hardship. Because by granting the respondent no.1 liberty to take action against already installed iron gates for safety of the residents of the locality, the main suit of will become infructuous. The appellant has met all the requirements of guidelines of respondent no.1, as per directions of Hon'ble High Court of Delhi. As per Rule 6.7.4. of Delhi Building Bye laws 1983, if within 60 days of receipt of notice under 6.1 of the Byelaws, the authority fails to intimate in writing to the person who has given the notice, the notice shall be deemed to have been sanctioned provided the fact is immediately brought to the notice of the Authority in writing by the person who has given notice and having not received any intimation from the authority within 15 days of giving such written notice. The Ld. Trial Court has erred and had not examined all aspects of the matter and also the principles of applicability of Order 39 Rule 1 and 2 CPC. The Ld. Trial Court had erred in not considering the weight of equity. The Ld. Trial Court had erred in not MCA12/12 Page : 9/19 considering that the balance of convenience is in favour of the appellant and also not considering that the appellant would suffer irreparable loss and injury if the prayer for temporary injunction is not allowed which cannot be compensated in terms of money. Ld. Trial Court had erred that the appellant had submitted site plan to respondents no. 1, 2, 3 and 4 indicating 12 gates in site leaving aside remaining open routes numbering 12. A prayer has been made for setting aside the impugned order and allowing the appeal and passing further orders, as required in the facts of the case.
11.Notice of the appeal was issued to the respondents and Trial Court Record was also summoned.
12.I have heard Counsel for the appellant and the Counsel for the respondent no.1 and have perused the record carefully.
13.Ld. Counsel for the appellant has argued that Ld. Trial Court has ignored the basic principles in the grant of relief of interim injunction. The appellant Association will suffer an irreparable loss and injury if the injunction order is not granted to it and the balance of convenience also lies in its favour. It was also argued that the appellant has shown a very strong prima facie MCA12/12 Page : 10/19 case in its favour and is entitled to the relief of interim injunction, as prayed by it. Ld. Counsel for the appellant also argued that respondents have not denied in their Written Statements the contents of para 4, 5, 6, 7, 11, 12 and 13 of the plaint and thereby have admitted the facts narrated therein. It was also argued that the appellant Society passed a resolution dated 01.10.2005 for affixing the gates in the presence of Additional SHO and in the meeting dated 13.05.2007, members of the appellant Association agreed to install 22 gates but only 12 gates were installed upto 2008 and further in the meeting dated 31.07.2011, the members of the Association agreed to install four gates to control the theft of cars and bikes from the area. It was vehemently argued by the Ld. Counsel for the appellant that the appellant applied for regularization of the iron gates installed by the Association vide its letter dated 04.02.2009 and copies of the letter were sent to the concerned officers/ departments. It has been argued that as per the policy guidelines issued by the MCD, the Revised Policy was also applicable to the existing gates and the gates already installed by the RWAs in the colonies were to be regularized by the MCA12/12 Page : 11/19 MCD within a period of six months and the MCD was bound to accord sanction for installation of iron gates within 45 days from the date of receiving of proposal from the RWA. In the present case, the MCD did not communicate any refusal to the appellant RWA in writing and hence, there is a deemed regularization of the gates installed by the RWA and the appellant is entitled for the protection of the Court. Ld. Counsel for the appellant also placed reliance on the judgements of (A) Karamjit Jaiswal Vs. Investec Trust (Jersey) Ltd. in CS (OS) No.892/2007 decided on 14.01.2011 passed by Hon'ble Delhi High Court, (B) R.S. Arya Vs. T.R. Dewan AIR 1998 Delhi 185 and (C) Rajendraprasad R. Singh Vs. Municipal Corpn. of Gr. Bombay AIR 2003 Bombay 392 in support of his arguments. Ld. Counsel for the appellant also placed reliance on Delhi Building ByeLaws, 1983 and argued that according to Clause 6.7.4, if the authority fails to intimate in writing within 60 days, to the person who has given the notice under 6.1 of the ByeLaws of its refusal, or sanction or any intimation, the notice shall be deemed to have been sanctioned provided the fact is immediately brought to the MCA12/12 Page : 12/19 notice of the authority in writing by the person who has given notice and having not received any intimation from the authority within 15 days of giving such written notice. It was argued by the Ld. Counsel for the appellant that since the appellant had already given notice to the respondent no.1 vide letter dated 04.02.2009 and had not received any intimation within the stipulated period of 45 days, as provided in Clause V of Policy Guidelines for installation of gates in the colonies for security purpose, there is a deemed sanction/ regularization on the part of the MCD.
14.Ld. Counsel for the respondent no.1, on the other hand, has argued that the appellant had affixed the iron gates without prior permission from respondent no.1 and even the letter dated 04.02.2009 has not been addressed to the appropriate authority nor the conditions laiddown in the Policy Guidelines have been complied with. Ld. Counsel for the respondent no.1 has pointedout that according to Clause2 of the Policy Guidelines, RWA will have to obtain No Objection Certificate (NOC) from Traffic Police Department or Delhi Police before applying to the Deputy Commissioner of concerned MCD Zone but in the MCA12/12 Page : 13/19 present case, no such NOC has been obtained by the appellant. It was also argued that RWA was also required to comply with Clause3 of the Policy which laysdown certain mandatory conditions, in the absence of which the sanction cannot be accorded by respondent no.1. The appellant has also failed to comply with these conditions and the gates have been illegally installed by the appellant. The appellant has failed to show any prima facie case in its favour and the order passed by the Ld. Trial Court does not suffer from any infirmity or illegality.
15.I have given my thoughtful consideration to the arguments advanced at bar and have carefully gone through the case law relied upon by the counsels for the parties besides their pleadings and documents.
16.At the outset, it may be mentioned that the principles/guidelines regarding the scope of interference by the Appellate Court in the exercise of discretion by the court of first instance have been laid down by Hon'ble Supreme Court in 1990 (supp.) SCC 727 and it was held :
"An appeal against exercise of discretion is said to be an appeal on principle.
Appellate Court will not reassess the MCA12/12 Page : 14/19 material and seek to reach the conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The Appellate Court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage, it would have come to a contrary conclusion. If discretion has been exercised by the trial court reasonably and in a judicial manner, the fact that the Appellate Court would have taken a different view may not justify interference with the Trial Court's exercise of discretion".
17.These principles were reiterated again recently in Volume I (2010) SLT 52. Hence, the scope of interference by this court in the exercise of discretion by the trial court is only limited to the extent where discretion has been exercised arbitrarily, capriciously or perversely. This court cannot substitute its own discretion in place of the discretion exercised by the trial court.
18.A careful perusal of the record would show that admittedly, the appellants had installed the gates without obtaining any prior permission from respondent no.1. No doubt, the policy MCA12/12 Page : 15/19 guidelines framed by the MCD for installation of gates for security purpose in colonies provide for regularization of the existing gates but before the same could be regularized, certain conditions are to be complied with. Besides several conditions mentioned in Clause3 of the policy guidelines such as the number of gates, size of the gates, the width of the road on which gates would be installed and the time of opening and closing of the gates, the most important precondition is Clause2 which provides for obtaining the NOC from the Traffic Police Department or Delhi Police before applying to the Deputy Commissioner of the concerned MCD Zone. In the present case, no such NOC has been obtained by the appellant before applying to the Deputy Commissioner of MCD.
19.In my considered opinion, obtaining NOC from the Police/ Traffic Department is of utmost importance and the appellant cannot simply move an application without obtaining the necessary NOC and take advantage of any deeming provision. Any application which is not accompanied by the required NOC cannot be termed as a proper application for obtaining the sanction/ regularization of the iron gates installed by the MCA12/12 Page : 16/19 appellant. The appellant has not been able to show any NOC obtained by it till date. Hence, it cannot be said that the gates installed by the appellant were regularized by the MCD. Hence, the gates installed by the appellant on the public way are clearly in violation of the policy guidelines framed by the MCD and appellant has no right to install the gates without obtaining prior permission or to continue with the said gates without the same being regularized by the MCD. The Courts cannot become instruments to perpetuate the illegal acts of the appellant.
20.The argument raised by the Ld. Counsel for the appellant that refusal of injunction would make the suit infructuous is also without any merits. The judgment of Hon'ble Bombay High Court in AIR 2003 Bombay 392 was on the aspect of grant of adinterim exparte injunction whereas, in the present case, the injunction application has been dismissed by the Ld. Trial Court after hearing the parties. Similarly, the judgments of Hon'ble Delhi High Court in AIR 1998 Delhi 185 and Karamjit's case (supra), do not have any relevance to the facts of the present case. The facts of both these cases were entirely MCA12/12 Page : 17/19 different from the facts of the present case.
21.So far as the question of balance of convenience and irreparable loss and injury to the appellant are concerned, once the appellant is unable to show a prima facie case in its favour, it cannot be said that balance of convenience lies in its favour. The appellant cannot take advantage of its own wrongs. Similarly, no such irreparable loss and injury, which cannot be compensated in terms of money, is going to be caused to the appellant on refusal of the injunction. It is always open to the appellant to obtain NOC from the concerned departments and apply afresh for the sanction /regularization of the gates installed by it if its members feel the necessity of installation of such gates for the purposes of their security and safety.
22.Ld. counsel for the appellant also argued that if this Court is not inclined to grant injunction in respect of all the gates, the Court may consider to grant injunction in respect of the gates installed on the road alongside the Nala as the same is not a public way and is not being frequently used. I am not inclined to accept the submissions made by the Ld. Counsel for the appellant. Once, it is prima facie shown that the gates installed MCA12/12 Page : 18/19 by the appellant are illegal and have not been sanctioned/ regularized by the respondent no.1 for the want of proper application, the Court cannot order for the protection of illegal structures. Accordingly, this submission is also declined being devoid of any merits.
23.Thus, in view of the aforesaid facts & circumstances, I am of the considered opinion that the impugned order does not suffer from any infirmity or illegality which may call for interference by this Court. Hence, the impugned order is upheld and the appeal is dismissed being devoid of any merits. No orders as to cost. Trial Court Record be sent back alongwith the copy of this order.
The appeal file be consigned to record room.
ANNOUNCED IN THE OPEN COURT th ON: 5 January , 2013.
(ANIL KUMAR SISODIA) Additional District Judge06/ West Tis Hazari Courts, Delhi.
MCA12/12 Page : 19/19