Haveli Ram vs Municipal Corporation Of Delhi
1993 Latest Caselaw 195 Del

JUDGMENT

P.K. Bahn, J.

(1) This Second Appeal is brought against judgment and decree dated January 21, 1976 by which the appeal of the appellant was dismissed and the judgment and decree dated May 14, 1975 of Sub Judge dismissing the suit of the appellant, was affirmed.

(2) The dispute-pertains to a chabutra and a tin shed constructed over the drain lying in front of the shop of the appellant. The case set up before the Trial Court was that this particular chabutra and the tin shed are the part of the property bearing municipal No. 1084, Ward No.1, Mehrauli, New Delhi and the Municipal Corporation and its employees have threatened to demolish the said chabutra and tin shed and thus, permanent injunction was sought restraining the Corporation from demolishing the said chabutra and the tin shed.

(3) The Municipal Corporation contested the suit pleading that this chabutra and tin shed are not part of the property bearing municipal No. 1084, rather they arc part of the public road and the Municipal Corporation has every right to remove the encroachment taking resort to the provisions of Section 317 read with Sections 320 and 321 of the Municipal Corporation Act 1957.

(4) The two courts below have given a finding of fact that the appellant has failed to prove that the said chabutra and the tin shed are the part of the property bearing municipal No. 1084 and they have dismissed the suit of the plaintiff/appellant.

(5) Learned counsel for the appellant has pointed to the record and has shown that this chabutra has been in existence prior to coming into force of Delhi Municipal Corporation Act 1957 and then he has placed reliance on judgment of this Court in Municipal Corporation Vs. Guljari Lal Jain, 1975, Rajdhani Law Reporter 481 in support of his contention that plaintiff is entitled to have relief of injunction restraining the Corporation from taking any action against the said chabutra under the provisions of Sections 317,320 and 321 of the Act.

(6) In the cited judgment, the facts were almost similar. There were four chabutras in front of four shops which were constructed on the public land. They were in existence' prior to the coming into force of the Municipal Corporation Act. The Hon'ble Judge held that Section 317 of the said Act would have prospective application and thus, those chabutras could not be demolished by taking resort to the provisions of Section 317 of the Corporation Act. For parity of reasons, the chabutra and the tin shed in question which are in existence prior to coming into force of Municipal Corporation Act 1957, are not liable to be demol. ished by taking resort to the said provisions of Municipal Corporation Act namely Sections 317, 320 and 321. Hence, the appellant was entitled to relief of injunction restraining the Corporation from demolishing the said chabutra by taking resort to said provisions.

(7) It is admitted now that the Dda has taken over the area in question and in case Dda has any legal rights under the Delhi Development Act to take action against the appellant in respect of the said chabutra and tin shed, the Dda is not prohibited from taking any action in accordance with the provisions of Delhi Development Act.

(8) This appeal is allowed and the suit is decreed and injunction is granted only to this extent that respondent is restrained from demolishing the said chabutra and tin shed by taking resort to the provisions of Sections 317, 320 and 321 of the Corporation Act. This decree would not debar the Dda from taking any action against the appellant in accordance with the provisions of Delhi Development Act or any other Act, if such action is permissible under law.

(9) The parties are left to bear their own costs throughout.