Delhi District Court
Sh. M.S. Talwar vs Municipal Corporation Of Delhi on 30 April, 2010
Page numbers
IN THE COURT OF SH. SIDHARTH SHARMA: ASCJ (NORTH) DELHI.
SUIT NO:896/08/02.
Sh. M.S. Talwar
General Secretary G. Block Welfare Association,
Naraina Vihar, New Delhi. ..........Plaintiff
Versus
1. Municipal Corporation of Delhi,
Through its Commissioner,
Town Hall, Chandni Chowk,
Delhi06.
2. Sh. Vinod Tripathi, Malli,
Horticultural Department,
MCD Karol Bagh Zone, New Delhi. ..........Defendants
Date of Institution of the suit : 08.05.2002
Date on which order was reserved : 29.04.2010
Date of decision : 30.04.2010
SUIT FOR MANDATORY INJUNCTION.
:JUDGMENT:
1. Plaintiff has filed the present suit for mandatory injunction. The averments as per the plaint are that defendant no.2 has been employed as mali in Horticultural Department of the MCD in Karol Bagh Zone and was supposed to look after and plant tress in the Naraina Industrial Area, New Suit No.896/08/02 Page numbers/Statistics Page numbers Delhi. It is the case of the plaintiff that the said defendant no.2 had been careless and negligent in discharging his duties to which the plaintiff complained but the defendant no.2 did not pay any heed to the same. The plaintiff also met the higher officials of defendant no.1 who warned defendant no.2 but the said defendant no.2 chose to ignore them. It is further averred that since the plaintiff was taking keen interest in plantation of trees and watering them, defendant no.2 became infuriated and threatened the plaintiff to implicate him in false case of outraging the modesty of female malis working in the office. It is also averred that defendant no.2 insulted, humiliated and threatened the plaintiff on many occasions and abused him whenever plaintiff wanted to complain against defendant no.2 for being negligent in his work. It is the grievance of the plaintiff that defendant no.2 enjoys the patronage of his officials and has been negligent in performing his duties of planting trees. It is contended that plaintiff has been actively participating in plantation and watering of trees in the area to let the people of the area breathe freely in greenery and to make the area pollution free. The plaintiff also served a legal notice upon defendant no.2 dated 06.2.2002 which was replied by defendant no.2. Hence filed the present suit praying for decree of mandatory injunction for directing the defendant no.2 to mend his ways and look after the planting and watering of trees in Naraina Industrial Area, New Delhi and also to plant more trees wherever so desired and not to neglect the trees and to conduct himself diligently for the due discharge of his duties and not to misbehave with any resident of the said area.
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2. In the written statement filed by the defendant no.1 & 2/MCD, preliminary objection was taken that the suit is barred for want of provisions of under Sec.477/478 of the D.M.C. Act. In reply on merits, contents of the plaint were denied and allegations in the plaint were also denied. Further preliminary objection is taken that the suit is without cause of action and the defendant no.2 is simply working as mali in Naraina Industrial Area and is doing his job honestly and sincerely under the direction of defendant no.1. It was stated that defendant no.2 was obeying orders of his seniors and doing his job sincerely and honestly. Area counselor and RWA have appreciated the working of defendant no.2 and have issued appreciation letter in his favour and therefore, the suit is liable to be dismissed.
3. Replication was filed by the plaintiff to the written statement of defendants wherein contents of the plaint were reiterated.
4. On the pleadings of the parties following issues were framed on 1.7.2004: I) Whether the suit of the plaintiff is barred under Sec.477/478 of the D.M.C. Act? OPD.
ii) Whether the plaintiff is entitled to the decree for mandatory injunction as prayed for? OPP.
Iii) Relief.
5. The plaintiff has examined himself as PW 1 and examined one Sh. Chiranji Lal Sharma as PW 2. Defendant no.1 examined Sh. Harbir Singh, Assistant Director (Horti.) as DW 1 and defendant no.2 examined himself as DW 2.
6. I have heard the counsel for both the parties and my issuewise finding is as under:
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ISSUE NO.1
7. The burden to prove the issue was upon the defendant. However, PW 1 admitted in his cross examination that no notice under Sec.477/478 of the D.M.C. Act was sent to the MCD before the filing of the suit and the case of the plaintiff is also not covered under the proviso to Section 478 of the D.M.C. Act, wherein, permanent injunction can be issued in urgent matters. In these circumstances, the suit of the plaintiff is barred under Sec.477/478 of the D.M.C. Act. In view of the same, the issue is decided in favour of the defendant and against the plaintiff.
ISSUE NO.2
8. The purpose of granting mandatory injunction is to compel the defendant to restore things to the condition in which they were when the complaint was made. Two elements must be considered for grant of mandatory injunction:
(i) What acts are necessary in order to prevent a breach of obligation (ii) Are these acts such as Court is capable of enforcing.
9. The plaintiff has to show that there has been a breach of legal obligation which is a condition precedent to enforcement of a right. "Two elements have to be taken into consideration for granting a mandatory injunction under Section 39 of the Specific Relief Act. In the first place, the Court has to determine what acts are necessary in order to prevent a breach of obligation; in the second place the requisite acts must be such as the Court is capable of enforcing. Caution is required in the grant of preventive relief. The exercise of power to grant mandatory injunction to Suit No.896/08/02 Page numbers/Statistics Page numbers cases where the remedy of damage is inadequate for the purposes of justice and the restoring of things to their former condition is the only remedy which will meet the requirements of the case. The court will not interfere except in cases where there is extreme serious damage caused which cannot be compensated. Therefore where a defendant was laying pipe line through another's land, it was held that injury caused to owner of neighboring land could not be remedied by granting compensation. Relief of mandatory injunction is only remedy, therefore party laying pipe line directed to remove pipe line." (C. Kunhammad v. C.H. Ahamed Haji, AIR 2001 Ker. 101)
10.Applying the law to the facts and circumstances of the case, it is seen that the plaintiff admitted in his cross examination that he had no technical know how of plantation. He has further admitted that he has no role to play in MCD work. He submitted that he had not filed any documents showing that defendant no.2 had filed any complaint against him. He also admitted that he did not file any complaint against defendant no.2. He further admitted that he has no idea whether defendant no.2 is doing his duty and whether he is doing the same in accordance with the directions of the higher authorities. He also admitted that the Area Counselor and the RWA had appreciated the work of defendant no.2. It is pertinent to note that the plaintiff has not filed the present suit in a representative capacity.
11. It is seen that the basic grievance of plaintiff is that defendant no.2 who is working as mali is not performing his job properly and he further wants that MCD under whom defendant no.2 was working to take action against Suit No.896/08/02 Page numbers/Statistics Page numbers defendant no.2 to ensure the proper plantation in the area where he is residing. The plaintiff could not bring anything on record either from the documents or from the resolutions passed by MCD that MCD was under
obligation to the plaintiff to plant trees which are sufficient to the expectation of the plaintiff. Although, it is not disputed by the defendant MCD that they are under a duty to preserve environment and take care of the sanitation facilities, roads, buildings and carry out other welfare activities but there is no specific obligation of the MCD towards plaintiff in particular to plantation of trees in the park near the residence of the plaintiff. It is also seen that PW 2 who came to depose on behalf of plaintiff was a person residing 25 km away from the park where defendant no.2 was employed as a mali and it is surprising as to how PW 2 could have monitored the activities of defendant no.2. It is also seen that as per the evidence of defendant no.1 and defendant no.2, the area counselor and Nariana Small Industries Welfare Association and In charge of Mpl. School, JJ. Camp, NarainaI appreciated the work of defendant no.2. The documents annexed are Ex DW 1/1 to Ex DW 1/3. In the cross examination of this witness, he had stated that the area is full of green plants and normally these plants survive in the rainy season which is a continuous process. He denied the suggestion that defendant no.2 was not working properly and nothing could be brought in his cross examination showing that MCD or defendant no.2 were not performing their duties properly. It is also seen that except plaintiff no one else from the neighborhood of the plaintiff have any complaint against the defendants Suit No.896/08/02 Page numbers/Statistics Page numbers nor they have come in the witness box showing dissatisfaction in the services of defendants. It is further seen that a mandatory injunction which a court cannot enforce or supervise cannot be issued. Coming to the facts of the case, it is seen that plaintiff has neither proved any obligation of the MCD to plant a number of trees in the park near the residence of the plaintiff nor he could prove as to what are the deficiencies in the services of defendants. The suit of the plaintiff fails in both these counts. As the plaintiff has miserably failed the case for grant of mandatory injunction, the issue is decided in favour of the defendants and against the plaintiff. RELIEF
12.As the plaintiff failed to prove his case, therefore, I am of the opinion that the suit is liable to be dismissed. Ordered accordingly. Decree sheet be prepared in terms of the order. No order as to costs. File be consigned to the record room.
PRONOUNCED IN THE OPEN COURT
th
ON: 30 April, 2010.
(SIDHARTH SHARMA)
ASCJ/DELHI.
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