Delhi District Court
L. G. Dass vs East Delhi Municipal Corporation on 3 June, 2023
IN THE COURT OF ADDITIONAL SENIOR CIVIL
JUDGE (SHAHDARA), KARKARDOOMA COURTS,
DELHI.
Presided by: Mr. Himanshu Raman Singh
Civil Suit No. 648 of 2020
L. G. Dass
Son of Late Shri Anand Prakash
27, RPS, DDA flats,
Mansarovar Park, Shahdara,
Delhi-110 032. .... Plaintiff
Versus
East Delhi Municipal Corporation
(Now Municipal Corporation of Delhi)
Through its Deputy Commissioner
Keshav Chowk, Shahdara
Delhi-110 032. ... Defendant
SUIT FOR RECOVERY ALONG WITH INTEREST
Date of Filing : 18.09.2020.
Date of Judgment : 03.06.2023.
Decision : Decreed.
JUDGMENT
1. The present suit has been instituted by the plaintiff for decree of recovery in favour of the plaintiff and against the defendant for a sum of Rs. 5,350/- (Rupees Five Thousand Three Hundred Fifty Only) along with past, pendent lite and future interest at the rate of 15% per annum.
2. The brief facts of the case as narrated by the plaintiff are as under:
Civil Suit No. 648 of 2020 L G Dass Vs. EDMC (Now MCD) Page 1 of 132.1. It is stated by the plaintiff that he is an Advocate and is residing at 27, RPS, DDA flats, Mansarovar Park, Shahdara, Delhi-110 032 and the defendant is a Government Department who is responsible for providing civic amenities to the citizens of Delhi.
2.2. It is also stated by the plaintiff on 23.01.2020, the plaintiff being an Advocate reached to the DC Office, Nand Nagri, Delhi but due to Delhi Election 2020, Nomination Process, the plaintiff was not allowed to enter his car inside the DC Office. Therefore, the plaintiff was left with no other option but to park his car on the opposite side of the DC Office only for about one hour to attend his cases but the officials of the defendant, illegally towed away the car of the plaintiff bearing no. DL-7CP-0855. It is further stated that on the site where the car of the plaintiff was parked, several other cars were also parked and no sign board or any other warning for 'No Parking Zone' was affixed either by the defendant or by any other concerned department. Later on, the plaintiff came to know that the car was in the custody of MCD parking, Nand Nagri and the watchman advised to approach the MDC office at Keshav Chowk for the release of the car.
2.3. It is stated that the plaintiff reached the office of MCD, there the official compelled the plaintiff to deposit 5,350/-
(Rupees Five Thousand Three Hundred Fifty Only) without Civil Suit No. 648 of 2020 L G Dass Vs. EDMC (Now MCD) Page 2 of 13 justifying any reason. The plaintiff was under the threat that if he did not deposit the said charges and did not get his car released the same day, the charges might get increased for each extra day. The plaintiff also had a large number of files relating to his clients inside the car. Considering the urgency of situation and his professional duties, the plaintiff deposited the said amount of Rs. 5,350/- (Rupees Five Thousand Three Hundred Fifty Only) under protest vide receipt no. 75971 dated 23.01.2020.
2.4. It is also stated by the plaintiff that the conduct of the defendant was illegal and only aimed at extorting money from the plaintiff. The plaintiff then issued legal notice under Section 80 thereby calling upon the defendant to refund a sum of Rs. 5,350/- (Rupees Five Thousand Three Hundred Fifty Only) along with interest at the rate of 15% per annum from the date of deposit i.e. 23.01.2020 till the date of actual payment together with an amount of Rs. 15,000/- (Rupees Fifteen Thousand Only) towards cost of the said notice within 15 days. But, the defendant has not responded to the said notice till date.
3. Defendant/MCD filed written statement wherein it is stated the present suit is barred by the provision of Section 477/478 of the DMC Act, 1957 for want of service of statutory notice and as such the same is not maintainable. It is further stated that the vehicle of the plaintiff i.e. car bearing no. DL 7CP 0855 has already been released, as plaintiff has voluntarily paid Civil Suit No. 648 of 2020 L G Dass Vs. EDMC (Now MCD) Page 3 of 13 the composition fee, removal and storage charges and also voluntarily undertaken that he would not do nay type of encroachment in future, hence, no cause of action ever arose in favour of the plaintiff to file the present suit against the defendant. It is further stated by the defendant that the present suit is bad in law as the defendant cannot be sued or being sued through Deputy Commissioner. The present suit is not maintainable as per Section 321/322 read with Section 326 of the DMC Act. The plaintiff had encroached upon the public road by way of parking his car unlawfully and left it unattended which caused obstruction on the public road in front of the DC Office, Nand Nagri, Delhi. Moreover, plaintiff vide application dated 23.01.2020 voluntarily requested to release his car which was seized by the defendant as per the provision of DMC Act.
3.1. It is further stated by the plaintiff that the plaintiff has not come to the court with clean hands hence, suppressed material facts from the court. It is also stated that the plaintiff himself, in his plaint, admitted that he visited the office of Deputy Commissioner of GNCTD, Nand Nagri and parked his car on the opposite side of the DC Office, Nand Nagri as he was not allowed to park his car inside the DC Office. The plaintiff has encroached upon the public road and created obstructions over the road. The plaintiff voluntarily made the request to release of his seized car vide application dated 23.01.2020 and also deposited Rs. 5,350/- (Rupees Five Thousand Three Hundred Civil Suit No. 648 of 2020 L G Dass Vs. EDMC (Now MCD) Page 4 of 13 Fifty Only) against the composite fees, removal and storage charges voluntarily vide G-8 no. 75971 dated 23.01.2020. He also undertook that he would not do any type of encroachment in future by any means. Accordingly, the seized car was released in good condition to the plaintiff. It is also stated that once the offender pay the notified charges/composition fee then, nothing is left to agitate. It is settled per position of law that the notified charges/composition fee is not refundable when offender voluntarily admits the guilt and also give the insurance to the authority not to repeat the offence in future. Hence, the present is suit is liable to be dismissed.
3.2. It is also stated by the defendant that the officials of the defendant has seized the car, as per the provisions of DMC Act, which was found lying/parked unattended on the busy road in front of the DC office.
4. Replication was filed by the plaintiff wherein plaintiff reiterated the contents of the plaint and denied the averments made in the written statement.
5. From the pleadings of the parties, following issues were framed:-
(i) Whether the amount of Rs. 5,350/- claimed by the defendant from the plaintiff vide receipt no. 75971 dated 23.01.2020 is unjustified and illegal? OPP Civil Suit No. 648 of 2020 L G Dass Vs. EDMC (Now MCD) Page 5 of 13
(ii) Whether the plaintiff is entitled for recovery of the amount of Rs. 5,350/- along with pendente and future interest at the rate of 15% per annum as prayed for? OPP
(iii) Whether the suit is barred by the provisions of Section 477/478 of DMC Act, 1957? OPD
(iv) Whether the plaintiff is not entitled for any relief as the suit is not maintainable under Section 321/322 read with Section 326 of the DMC Act? OPD
(v) Relief.
6. In order to prove the case, the plaintiff Mr. L. G. Dass son of Shri Anand Prakash examined himself as PW-1 who led his evidence by way of affidavit Ex. PW-1/A and relied upon the following documents:-
Ex. PW1/1 Receipt No. 75971 dated 23.01.2020. Ex.PW1/2 Legal Notice under Section 80 of MCD Act.
Ex.PW1/3 Postal Receipt dated 07.02.2020.
7. The defendant did not cross-examine PW-1 despite several opportunities. The plaintiff evidence was closed, thereafter.
8. In order to support the claim of the defendant, Mr. M.K. Mishra, Administrative Officer, Shahdara (North Zone) MCD, Keshav Chowk, G.T. Road, Shahdra, Delhi was examined Civil Suit No. 648 of 2020 L G Dass Vs. EDMC (Now MCD) Page 6 of 13 as DW-1 who led his evidence by way of affidavit Ex. DW1/A and relied upon the following documents:
Ex. DW1/1. Copy of Application dated 23.01.2020. (OSR) Mark A Copy of RC of Vehicle No. DL 7CP 08 55 which is registered in the name of Ms. Kumkum Rani.
Mark B Copy of Aadhar Card of Ms. Kumkum Rani.
Mark C. Copy of Circular issued by the MCD.
9. DW-1 was cross-examined by the plaintiff at length.
Thereafter, defence evidence was closed.
10. I have heard the final arguments and gone through the record carefully. The issue-wise findings are as follows:-
Issue No. 1(i) Whether the amount of Rs. 5,350/- claimed by the defendant from the plaintiff vide receipt no. 75971 dated 23.01.2020 is unjustified and illegal? OPP
11. The onus to prove this issue was on the plaintiff. The plaintiff has claimed an amount of Rs. 5350/- (Rupees Five Thousand three Hundred Fifty Only) against the defendant/MCD. Briefly stated, the case of the plaintiff is that the plaintiff had parked his vehicle bearing no. DL 7CP 0855 on the opposite side of DC Office, Nand Nagari. The plaintiff has contended that there was no sign board or any other warning for no parking zone in the said area by the MCD. The plaintiff has contended that his Civil Suit No. 648 of 2020 L G Dass Vs. EDMC (Now MCD) Page 7 of 13 vehicle was towed away by the MCD. The plaintiff had to deposit Rs.5350/- (Rupees Five Thousand three Hundred Fifty Only) without any reason to the MCD. The plaintiff led his evidence and examined himself as PW-1. He proved the receipt of the amount as PW-1/1, legal notice as PW-1/2 and postal receipt as PW-1/3. The plaintiff has placed reliance upon judgment of the Hon'ble High Court of Delhi in the case titled Rahul Kumar Vs. EDMC, Writ Petition Civil No. 3755/2021.
12. It is contended that the action of the MCD in question is not covered under Section 321 and Section 322 of the Delhi Municipal Corporation Act, 1957. In the case before the Hon'ble High Court of Delhi, the question was whether the vehicle can be seized under Section 321 and 322 of the Delhi Municipal Corporation Act, 1957. The Hon'ble High Court of Delhi after discussing the law in detail, held that no show cause notice was given to the petitioner requiring him to remove his vehicle from the public land or directing him not to park his vehicle in the said land. It was also held that the petitioner was not informed of the consequences of the alleged illegal parking on the public land. It was further held that there was no justification of the respondent/MCD in seizing the vehicle of the petitioner. The Hon'ble High Court of Delhi reached the conclusion that the demand of amount for the release of the vehicle cannot be sustained.
Civil Suit No. 648 of 2020 L G Dass Vs. EDMC (Now MCD) Page 8 of 1313. Further relevant portions of the judgment reads as under:
"25. Section 321 of the MCD Act stipulates that no person except with the permission of the Commissioner and on payment of such fee as he in each case thinks fit shall place or deposit upon any street or upon any open channel, drain or well in any street or upon any public place any stall, chair, bench box, ladder, bale or other thing so as to form an obstruction thereto or encroachment thereon.
26. Section 322 of the MCD Act empowers the Commissioner to cause to be removed any stall, chair, bench, box, ladder, bale or other thing whatsoever, placed, deposited, projected, attached or suspended in, upon from or to any place in contravention of the Act and also empowers him to remove any article whatsoever hawked or exposed for sale on any public street or in other public place in contravention of the act and further to cause removed any vehicle, package, box or any other thing in or on which such article is placed.
27. The wording of Section 321 and Section 322 of the MCD Act when read in the light of the heading of the chapter and sub-heading of the Sections in which the said two Sections are placed clearly indicate that they deal with "Streets and encroachment or obstruction of streets, open channels, drain or well and public places".
28. Section 321 of the MCD Act refers to stall, chair, bench, box, ladder or other thing. There is no reference in Section 321 and Section 322 of any vehicle except in Section 322 sub section (b), wherein the referene of vehicle has been made in conjunction with package, box or any other thing in or on which such article is placed.
29. Bare reading of Section 322 (b) shows that the Commissioner has been empowered to cause the removal of a vehicle in which any article is hawked or exposed for sale on any public street or in any other public placed in contravention of the MCD Act.
30. Section 321 and 322 do not empower the Commissioner to remove a vehicle from a public place unless such vehicle is used for hawking or exposing for sale on any public street or in other public place in contravention of the MCD Act."
14. The defendant in order to prove his case examined, Mr. M. K. Mishra Administrative Officer, as DW-1. The defendant in its evidence did not prove on record any circular or document which could show that either the land on which the vehicle was parked was a municipal land or a public land Civil Suit No. 648 of 2020 L G Dass Vs. EDMC (Now MCD) Page 9 of 13 belonging to some other department. The defendant did not prove in evidence the relevant provision under which the vehicle was seized.
15. The issues in civil cases are to be decided on the scale of preponderance of probabilities. The doctrine of preponderance of probabilities was discussed in the judgment titled Postgraduate Institute of Medical Education and Research v. Jaspal Singh, (2009) 7 SCC 330 which reads as under:
"17. In Syad Akbar v. State of Karnataka (1980) 1 SCC 30 this curt dealt with in details the distinction between negligence in civil law n din criminal law. It has been held that there is marked difference as to the effect of evidence, namely, the proof, in civil and criminal proceedings. In civil proceedings, a mere preponderance of probability is sufficient, and the defendant is not necessarily entitled to the benefit of every reasonable doubt; but in criminal proceedings, the persuasion of guilt must amount to such a moral certainty as convinces the mind of the court, as a reasonable man, beyond all reasonable doubt".
16. In Dr. N.G. Dastane Vs. Mrs. S. Dastane on 19 th March, 1975 AIR 1975 SC 1534, (1975), SCC 326, Hon'ble Supreme Court held as under:-
"24. The normal rule which governs civil proceedings is that a fact can be said to be established if it proved by a preponderance of probabilities. This is for the reason that under the Evidence Act, Section 3, a fact is said to be proved when the court either either believes it to exist or considers its existence so probably that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The belief regarding the existence of a fact may thus be founded on a balance of probabilities. A prudent man faced with conflicting probabilities concerning a fact-situation will act on the supposition that the fact exists, if on weighing the various probabilities he links that the preponderance is in favour of the existence of the particular fact. As a prudent man, so the court Civil Suit No. 648 of 2020 L G Dass Vs. EDMC (Now MCD) Page 10 of 13 applies this test for finding whether a fact in issue can be said to be proved. The first step in this process is to fix the probabilities, the second to weigh them, though the two may often intermingle. The impossible is weeded out at the first stage, the improbable at the second. Within the wide range of probabilities the court has often a difficult choice to make but it is this choice which ultimately determines where the preponderance of probabilities lies. Important issues like those which affect the status of parties demand a closer scrutiny than those like the loan on a promissory note : "the nature and gravity of an issue necessarily determines the manner of attaining reasonable satisfaction of the truth of the issue " Per Dixon, J. In Wright v. Wright (1948) 77 C.L.R. 191 at p. 210; or as said by Lord Denning, "the degree of probability depends on the subject-matter. In proportion as the offence is grave, so ought the proof to be clear" Blyth v. Blyth (1966) 1 A.E.R. 534 at 536. But whether the issue is one of cruelty or of a loan on a pronote, the test to apply is whether on a preponderance of probabilities the relevant fact is proved. In civil cases this, normally, is the standard of proof to apply for finding whether the burden of proof is discharged."
17. The case law relied upon by the plaintiff fits squarely into the facts of the present case. The plaintiff has been successful in proving his case on the scale of balance of probabilities. On the other hand, the defendant has failed to prove the circumstances under which the vehicle was seized. The only defence taken by the defendant is that the plaintiff himself had requested for release of his vehicle. This court is aghast at the defence taken, as a layman would also know, that once the vehicle has been seized, the only option left to the plaintiff was to apply for the release of the vehicle. In the totality of the facts & circumstances, the plaintiff is held entitled to recover sum of Rs.5,350/- (Rupees Five Thousand Three Hundred Fifty Only) Civil Suit No. 648 of 2020 L G Dass Vs. EDMC (Now MCD) Page 11 of 13 from the defendant. Issue No. 1 is accordingly decided in favour of the plaintiff.
Issue No. 2(ii) Whether the plaintiff is entitled for recovery of the amount of Rs. 5,350/- along with pendente and future interest at the rate of 15% per annum as prayed for? OPP
18. Issue No. 1 has already been decided in favour of the plaintiff. The plaintiff is also entitled for pendente lite and future interest till recovery at the rate of 9% per annum considering the present bank rates.
Issue No. 3(iii) Whether the suit is barred by the provisions of Section 477/478 of DMC Act, 1957? OPD Issue No. 4
(iv) Whether the plaintiff is not entitled for any relief as the suit is not maintainable under Section 321/322 read with Section 326 of the DMC Act? OPD
19. Issue No. 3 and Issue No. 4 are taken up together. The defendant has failed to lead any evidence to show that the present suit is barred as per Section 447, 448 of DMC Act. On the other hand, the plaintiff has proved on record the notice which was sent to the MCD. The defendant has also failed to show, as to how the present suit is not maintainable under Section 326, 321, 322 of the DMC Act. No evidence has been led Civil Suit No. 648 of 2020 L G Dass Vs. EDMC (Now MCD) Page 12 of 13 by the defendant in this regard. In the circumstances, issue no. 3 & 4 are decided against the defendant and in favour of the plaintiff.
Issue No. 5(v) Relief.
20. The plaintiff is held entitled to recover sum of Rs.5,350/- (Rupees Five Thousand Three Hundred Fifty Only) from the defendant along with pendente lite and future interest till recovery at the rate of 9% per annum.
21. Plaintiff shall also be entitled to costs of the suit. The present suit is decreed with interest in aforesaid terms. Decree sheet be prepared accordingly.
22. File be consigned to record room after necessary compliance.
Announced in open Court on 03.06.2023.
(Himanshu Raman Singh) Addl. Senior Civil Judge, Shahdara, Karkardooma Court, Delhi/03.06.2023.
Civil Suit No. 648 of 2020 L G Dass Vs. EDMC (Now MCD) Page 13 of 13