Dinesh
Tanwar V. NDMC Date of decision: 31.07.2018
IN THE COURT OF ANKUR JAIN: [Link]
JUDGE-10 (CENTRAL): TIS HAZARI COURTS: NEW DELHI
MCA No. 6/18
Dinesh Tanwar
S/o Shri Ram Kishore,
R/o 49 C, DDA Flats
Mansarovar Park,
Shahdara,
Delhi-110032. …. Appellant
Versus
1. NDMC
Through its commissioner
Dr. Shyama Prasad Mukherjee Civic Centre,
Near minto Road,
New Delhi.
2. The Assistant Commissioner
North Delhi Municipal Corporation
Multi Level Car Parking,
Asaf Ali Road,
New Delhi – 110002.
3. The Addl. Dy. Commissioner (City Zone)
North Delhi Municipal Corporation
Multi Level Car Parking,
Asaf Ali Road,
New Delhi – 110002. .... Respondents
Appeal against the order dated 14.05.2018 passed by
Ld. ASCJ, (Central), Tis Hazari Court, Delhi.
Date of Institution : 21.05.2018
Date of reserving judgment : 27.07.2018
Date of pronouncement : 31.07.2018
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Dinesh Tanwar V. NDMC Date of decision: 31.07.2018
O R D E R:
01. By this order I shall decide an appeal filed by the
appellant/plaintiff challenging the order dated 14.05.2018
passed by Ld. ASCJ (Central). Appellant was the plaintiff and
respondent was the defendant before the Ld. Trial Court and
they shall be referred to as per their respective status before
the Ld. Trial Court in this order.
02. Brief facts of the case are that the plaintiff had
filed the suit for permanent injunction stating that he has
been in occupation of site no. 3521, admeasuring 7' X 5' near
SBI Building, Bhagirath Place (hereinafter referred to as said
site) since 09.7.2004. It was the case of the plaintiff before the
Ld. Trial Court that the said site was transferred in the name of
plaintiff by defendant vide correspondence dated 09.07.14
and was transferred in lieu of tehbazari site at Bapu Dham/
The sum of Rs. 1 lac was also accepted by the defendant as
transfer charges.
03. It was further stated in the plaint that plaintiff has
been doing his business on the said site since year 2014 and
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Dinesh Tanwar V. NDMC Date of decision: 31.07.2018
electricity connection was also got installed by the plaintiff. In
order to safegaurd his shop plaintiff had put an iron shutter on
the said site. However, the Secretary, President of the local
Association were pressuring the plaintiff for the last about two
years to pay Rs. 10,000/- per month in case he wants to
operate from the said Tehbazari shop. The plaintiff did not
agree to pay the amount. The officers of defendant in
collusion with the Secretary and President of the local traders'
association managed to get a show cause notice dated
22.3.2017 issued against the plaintiff as he had put up an iron
structure in which he was asked as to why Tehbazari should
not be cancelled/sealed. Plaintiff in order to avoid the
controversy removed the said shutter and also gave a reply
to the show cause notice dated 22.03.2017. No action was
taken by the officials of the defendant. However, on
09.06.2017 the officials of the defendant along with the police
officials came to the site and tried to remove the plaintiff but
with the intervention of the neighbours they could not do so.
On 11.6.2017 they again came but could not do so thus the
plaintiff was constrained to file the present suit seeking
permanent injunction.
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Dinesh Tanwar V. NDMC Date of decision: 31.07.2018
04. Summons of the suit were issued to the defendants
who entered their appearance and filed the WS. Defendants
took a stand before the Ld. Trial Court that as per their records
no mutation file was available and in order to ascertain correct
facts with respect to Tehbazari in question, a notice dated
02.01.2018 was issued to the plaintiff for producing the
original G8 receipts, original instrument of transfer, but
plaintiff failed to produce the same, thus, another letter dated
28.02.2018 was issued but no document were produced by
the plaintiff. Hence, a show cause notice dated 15.03.2018
was issued. It was further stated that as per the judgment of
the Hon'ble Supreme Court the Ld. Trial court had no
jurisdiction to entertain the suit.
05. Replication to the written statement was filed
denying the contents of the written statement and reiterating
the contents of the plaint. It is also relevant to note that a
writ petition bearing no. W.P. (C)9112/2017 titled as Delhi
Electrical Traders Association (Regd) Vs. North Delhi Municipal
Corporation & Ors. was filed before the Hon'ble High Court of
Delhi by the Trader's association in which it was stated by the
defendant that Tehbazari has been cancelled vide order dated
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Dinesh Tanwar V. NDMC Date of decision: 31.07.2018
02.04.2018, however, no action could be taken as stay has
been granted by the Ld. Trial Court. Accordingly, the Hon'ble
High Court of Delhi requested the Trial Court to dispose off the
application u/o XXXIX Rule 1 and 2 CPC in accordance with
law, as expeditiously as possible. Early hearing application
was moved by the defendant and the Ld. Trial Court was
pleased to prepone the date of hearing. The Ld. Trial Court
after hearing arguments, vide its order dated 14.05.2018
dismissed the application of the plaintiff U/o XXXIX Rule 1 & 2
CPC. Hence the present appeal was filed by the plaintiff
challenging the said order.
06. Ld. Counsel for the appellant has argued that the
appeal has been filed u/o XLIII CPC and as such the same is
maintainable against the order passed by the Ld. Trial Court.
He submits that competent authority had transferred the
Tehbazari on 09.07.2014, the transfer fee and subsequent
license fee were duly accepted by the defendant. He has
argued that Ld. Trial Court has erred in relying upon the order
dated 02.04.2018 as the same was not the part of the record.
He has also argued that subsequent to the notice issued by
the defendant he has produced all the documents before the
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Dinesh Tanwar V. NDMC Date of decision: 31.07.2018
officials of the defendant. It has also been argued that the
Ld. Trial Court vide order dated 14.06.2017 was pleased to
pass a reasoned order thereby protecting the plaintiff and no
challenge was made by the defendant to the said order and
which has attained finality. Lastly it has been argued that the
Ld. Trial Court fell into grave error in relying upon the
averments made in the application u/o 6 rule 17 CPC as
admission of the plaintiff. In support of his arguments he has
relied upon judgment on Mohan Overseas Pvt. Ltd. Vs.
Goyal Tin & General Industries, 169 (2010) DLT 487,
Fritco-Lay India & Anr. Vs. Uncle Chips Pvt. Ltd. 86
(2000) DLT 31, [Link] Naidu Vs.
[Link] & Ors., (2000) 7SCC 695, National
Highway Authorities of India Vs. Sudhir Haryal CM (M)
837/2007 decided on 20.06.2007 and Central Board of
Trustees Vs. M/s. Indore Composite Pvt. Ltd. CA No.
7240/18 decided on 26.07.2018 in support of its
arguments.
07. On the other hand Ld. Counsel for the defendant
has argued that order dated 02.04.2018 is on the record of the
Trial Court. Admittedly this order has not been challenged by
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the appellant. He has further argued that the suit is not
maintainable in view of the fact that appellant has an equal
efficacious remedy available to him.
08. I have heard the Ld. Counsels for the parties and
have gone through the record of the Ld. Trial Court.
09. Ld. counsel for the appellant has placed reliance on
various authorities. Before going into the facts of the case it is
important to note as to what is the law which is being relied
on by the counsel for the appellant. In Mohan Overseas
(Supra), the Hon'ble High Court of Delhi while relying on the
judgment of Ramdev Food Products (P) Ltd. Vs.
Arvindbhai Rambhai Pvt. Ltd. VI 2006 SLT 673 had
observed that ordinarily the appellate court will not interfere
with the exercise of discretion of the court of first instance
except when the discretion is arbitrary, capricious, perverse or
ignores the settled principles of law. There can be no dispute
to the proposition of law as laid down in this case, but it would
be duty of the appellant to show the order of the Ld. Trial
Court is covered under the exception. The judgment of
National Highway (Supra) rather supports the defendant as
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Dinesh Tanwar V. NDMC Date of decision: 31.07.2018
in the said case, the Ld. Civil Judge has refused to vacate the
stay orders on the ground that no formal application u/O
XXXIX Rule 4 CPC was moved. The said orders were
challenged by the NHAI and the petition was allowed and stay
was vacated. There can be no dispute to the principles
enunciated in FRITCO's Case (Supra) and which only lays
down power and scope of the appellate court. The judgment
of A. Venkatesubbiah (Supra) is on the aspect that appeal
lies against an ad-interim exparte stay order which is not so in
the present case. The judgment of Central Board of
Trustees (Supra) is also not applicable to the facts of the
case and is distinguishable on facts. In the said case writ
petition was dismissed by the Hon'ble Madhya Pradesh High
Court and in that context the Hon'ble Supreme Court came to
the conclusion that the order of Hon'ble High Court is non-
speaking order and remanded the case for fresh
consideration.
10. In order to succeed for interim injunction plaintiff
has to show that:-
a) he has prima-facie case in his favour
b) balance of convenience lies in his favour and
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c) irreparable loss is likely to be caused to him which cannot
be compensated in terms of a money.
11. Only on the satisfaction of these three conditions
interim injunction can be granted in favour of the plaintiff.
12. Ld. Trial court has dismissed the application of the
plaintiff on the ground that vide order dated 02.04.2018
passed by the defendant the Tehbazari regarding mutation of
site in favour of plaintiff has been nullified and cancelled and
therefore, plaintiff does having any valid ground to remain at
the site.
13. The first arguments of the Ld. Counsel for the
appellant that appeal being maintainable in its present form is
liable to be accepted, the present appeal has been filed
against the order dated 14.05.2018 which was passed by the
Ld. Trial Court under Order XXXIX rule 1 and 2 CPC. There can
be no room for doubt that the Order passed by the Ld. Trial
court under Order XXXIX Rule 1 and 2 CPC is an appealable
order. Under Order XLIII (1) (r) any order passed under Order
1 Rule 2 of Order XXXIX is an appealable order. This being
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the position of law there can be no doubt that the present
appeal is maintainable before this court.
14. It was next argued that vide order dated
14.06.2017 interim protection was granted for which no
modification was sought by the defendant. This argument is
liable to be rejected, as twice application for early hearing has
been moved by the defendant with a request to take up the
matter and dispose of the application u/o XXXIX rule 1 and 2
CPC. Therefore, it cannot be said that defendant was siting
idle. In any case, any interim order passed by the court
merges with the order passed u/O XXXIX rule 1 and 2 CPC.
15. The next arguments is that the said order dated
02.04.2018 is not on record. The said arguments is liable to be
rejected as the copy of the said order was duly placed on
record by the defendant along with its application for early
hearing dated 11.04.2018. No reply to the said application
was filed by the plaintiff however, he chose to file an
application seeking amendment of the plaint. In the
application for amendment u/o 6 rule 17 CPC, a prayer was
made to disclose the order dated 02.04.2018 as null and void.
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Therefore, it cannot be said that the plaintiff had no
knowledge of the said order. Even assuming for the sake of
arguments that the said order dated 02.04.2018 cannot be
read for deciding the application u/o XXXIX Rule 1 and 2 CPC
as the same was not brought on record by amending the
written statement. It has to be seen whether there exists
prima facie case in favour of the plaintiff from material on
record.
16. In the present case plaintiff has filed the present
suit that he is in occupation of the site since 09.07.2014 as
the site was transferred in the name of plaintiff by the
defendants vide a letter dated 09.07.2014. Plaintiff along with
his plaint has filed a letter dated 30.06.2014, seeking
mutation/shifting of site, addressed to the AO/AC the contents
of which are referred as under:-
To
The AO/AC
City Zone/North Delhi Municipal Corporation
New Delhi – 110002
SUB: Regarding Mutation/shifting of Tehbazari Site No. 3521,
measuring 7'X5' covered Tehbazari from Bapu Market
H.C. Sen Road, Delhi to Near State Bank of India,
Footpath Bhagirath Palace Delhi – 110006.
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Dinesh Tanwar V. NDMC Date of decision: 31.07.2018
Sir,
The subject cited Tehbazari site in the name of Sh.
Mahender Singh son of Sh. Nawal Singh has been transfer in
my name by way of an Agreement, GPA, Possession Letter,
Receipt dated 06.02.2001, by the Allottee and also shifted
from Bapu Market H.C. Sen Road, Delhi to near State Bank of
India, Footpath Bhagirath Palace, Delhi-11006. The possession
of the site was handed over to me on the same day and is
under my possession since then. In view of MCD's Circular No.
CL& EC/TTR/2009/532 dated 09.10.2009, I hereby apply for
the transfer of this Tehbazari site in my name instead of name
of Sh. Mahender Singh son of Sh. Nawal Singh.
17. From the contents of the letter it so appears that
plaintiff is in possession of the site since 2001. However, it is
the case of the plaintiff in his plaint that he is in the
possession since 09.07.2014. The communication dated
09.07.2014 is itself unclear, the perusal of the same would
reflect that tehbazari is being mutated in favour of the plaintiff
which was purchased by him in the year 2001. It is not clear
as to why the plaintiff waited for 13 years long for seeking
mutation of the site. It is not clear from the letter as to who is
the allottee of the site in question. If Mahender Singh was
the allottee of the site at Bapu Dham then there are no
averment as to when the same was allotted to him. This letter
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has been written in such a manner that it creates more
confusion. Thus a wrong order if any, cannot create equity in
favour of the plaintiff. An illegality committed cannot be
allowed to be perpatuated.
18. The electricity bill so filed along with the plaint
shows the energization date to be 29.10.2016, if the plaintiff
was in possession of the site since 2014, then why it applied
for an electricity connection in October, 2016. Plaintiff was
dealing in electrical appliances from the said site, without
electricity connection for almost 2 years, it would have been
difficult for the plaintiff to run his shop/business from the said
site. It is not his case that for the said period he was using the
electricity from other source. Plaintiff is taking different stands
at various places, thus, the application of the plaintiff is
nothing but a gross abuse of the process of law. No original
documents were placed by the plaintiff along with his plaint
which could substantiate his claim of transfer of mutation.
Neither the original GPA nor any document executed by
Mahinder Singh was filed.
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Dinesh Tanwar V. NDMC Date of decision: 31.07.2018
19. A party which seeks equitable relief of injunction
must come to the court with clean hands and any suppression
of material facts dis-entitles the party to the relief of
injunction.
20. Notice dated 02.01.2018 was issued to the plaintiff
by the defendant to produce the original instrument however,
despite notice plaintiff did not chose those to produce the
documents, again a notice was issued which according to the
defendant was never complied. Hence a show cause notice
dated 15.03.2018 was issued which culminated into order
dated 02.04.2018. It has been argued by the plaintiff that the
plaintiff has given reply to those notices and had also shown
the documents as demanded to the officials of the defendant.
It is not clear that if the defendant can write letters and is in
power and possession of original documents then what
prevented him from filing the same along with a plaint.
Admittedly, those documents in original were never placed on
record by the plaintiff. This shows that plaintiff has not come
to the court with clean hands.
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Dinesh Tanwar V. NDMC Date of decision: 31.07.2018
21. Before parting it is also relevant to note that Street
Vendors (Protection of Livelihood & Regulation of Street
Vending Act 2014) [hereinafter referred to as the said act] was
enacted by the Parliament and came into force on 01.05.2014.
As per Section 3 (3) of the said Act no Street Vendor shall be
evicted or, as the case may be, relocated till the survey
specified under Sub Section (1) of Section 3 has been
completed and the certificate of vending is issued to all Street
Vendors. As per Section 18 local Authority may, on the
recommendations of the Town Vending Committee declare a
zone or part of it to be a no vending zone for any public
purpose and relocate the street vendors vending in that area
as per the specified scheme. Subsequent to the passing of the
act a scheme was also made. Thus, on 09.07.2014 the
Administrative Officer, City Zone was not competent for
shifting of the Teh bazari rights. An order passed without
jurisdiction is non-est and no protection can be granted on the
basis of the said order. Lastly deposit of transfer fee or license
fee alone does not create any right in favour of the plaintiff.
22. The Hon'ble Delhi High Court vide order dated
30.05.2018, passed in W.P. (C) 9112/17 titled as Delhi
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Dinesh Tanwar V. NDMC Date of decision: 31.07.2018
Electrical Traders Association (Regd) Vs. North Delhi Municipal
Corporation & Ors. had recorded the submissions of Ld.
Counsel for the plaintiff that an application for early hearing
before this court for expeditious disposal of the appeal would
be filed. No such application was moved by the plaintiff for
reasons best known to him before this court.
23. Thus, I do not find any merit in the appeal and
same is liable to be dismissed.
24. The appeal is accordingly, dismissed. Nothing said
herein shall tantamount to expression of opinion on the merits
of the case and all the observations made herein are only for
the purpose of deciding the present appeal.
Appeal file be consigned to Record Room. Trial
court record be sent back along with copy of the order.
Announced in the
open Court on 31.07.2018
Digitally signed
ANKUR by ANKUR JAIN
Date:
JAIN 2018.07.31
[Link] +0530
(Ankur Jain)
Addl. District Judge-10 (Central)
Tis Hazari Courts: Delhi
MCA No. 6/18 Page 16 of 16
