Delhi High Court

Adarsh Public School vs Sunil Jindal & Ors. on 14 October, 2011

Author: Manmohan Singh

*          HIGH COURT OF DELHI: NEW DELHI

+                     C.S.(OS) No.374/2010

%                               Judgment Pronounced on: 14.10.2011

ADARSH PUBLIC SCHOOL                       ....... Plaintiff
               Through Mr. Vikash Aggarwal, Adv. with
                       Mr. Pramod Gupta, Adv.

                      Versus

SUNIL JINDAL & ORS                                        ....... Defendants
                Through None

CORAM:
HON'BLE MR. JUSTICE MANMOHAN SINGH

1.

Whether the Reporters of local papers may be allowed to see the judgment?

2. To be referred to Reporter or not?                     Yes

3. Whether the judgment should be reported                Yes
   in the Digest?

MANMOHAN SINGH, J.(Oral)

1. The plaintiff-School has filed the present suit for seeking the

following reliefs:

"(i) Pass a decree for permanent injunction in favour of the plaintiff and against defendants No.1 to 9 restraining the defendants, their associates, assigns, employees, agents from interfering in any manner whatsoever with ingress and egress of the plaintiff, his agents, assigns, representatives, students, staff, buses and other vehicles etc. on „Shaheed Sukhdev Singh Marg‟ of the „C‟ Block, Vikaspuri, New Delhi-110018.

(ii) Pass a decree for permanent injunction in favour of the plaintiff and against the defendants No.1 to 9, their associates, assigns, employees, agents restraining the said defendants from fixing/erecting any iron gate on „Shaheed Sukhdev Singh Marg‟ at the place where iron pillars have been installed as shown in the photos and in the site plan shown in red or at any other place on the Shaheed Sukhdev Singh Marg whereby free ingress and egress of the plaintiff and/or its students/staff, agents, assigns and representatives, buses etc. is hampered in any manner whatsoever."

2. The case of the plaintiff-school is that it is a Senior Secondary

School run under aegis of Dr. B.R. Memorial Society (society registered

under the Societies Registration Act). The Society in 1985 was allotted

1.48 acres of land by DDA in „C‟ Block, Vikas Puri for running the

School. The total strength of the students studying in the School is around

2800 and the teaching faculty comprises of approx. 114 teachers.

3. The plaintiff-school is situated on a 40 ft. wide road which has

been named as „Shaheed Sukhdev Singh Marg‟ and is one of the main

arterial roads of the locality and has been enjoying the right to passage

since its inception without any hindrance and the movement of the

students, teachers, staff, parents and school buses was quite smooth.

4. The said road is a strategically significant passage for the

people and connects Outer Ring Road from one side and Najafgarh Road

from the other side.

5. It is the case of the plaintiff against the defendants that for

some time in the recent past, few of the residents of the locality headed by

defendant No.1, Sunil Jindal who is the husband of the Area Municipal

Councilor Smt. Sarita Jindal and is an influential person, is creating

obstruction in the smooth flow of school buses and the vehicles of the

staff, and creates nuisance and disturbs peace and tranquility of the

society. It has been reported by the staff of the school to the Manager of

the School several times that Mr. Sunil Jindal along with musclemen stops

the ingress and egress of the School buses staffs, parents which causes

immense inconvenience.

6. Defendants No.2 to 9 are residents of the same area who under

the leadership of defendant No.1 are causing obstruction in the free ingress

and egress of the plaintiff, its staff and students. The defendants have

been illegally encroaching on the main road by illegal construction and

small gardens and further have been haphazardly parking their cars.

They have also illegally erected iron pillars on both the sides of

the road in order to weld an iron gate to block the main road which is

being used for public transport for decades.

7. The plaintiff has also made complaints in this regard to

defendants No.10 & 11, i.e. Municipal Corporation of Delhi and the

S.H.O. of the concerned Police Station, but to no effect. Hence, the

present suit was filed by plaintiff.

8. Along with the present suit, the plaintiff filed an application

under Order XXXIX, Rules 1 & 2 read with Section 151 CPC being I.A.

No.2664/2010. After hearing upon the same, the Court passed an ex parte

injunction order restraining defendants No.1 to 9 from impeding ingress

and egress to the plaintiff‟s premises by erecting barricades of any kind

whatsoever on the 40 feet road shown in Annexure-A to the plaint and

further defendant No.10 was directed to ensure due compliance with the

said directions of the Court.

9. The said injunction order was made absolute vide order dated

12.09.2011.

10. The defendants were duly served.

11. Defendant No.8 Mr. Navin Malhotra appeared in person and

made a statement on 17.05.2010 to the effect that he has no objection if the

suit of the plaintiff is decreed as prayed for. In view of his statement, the

learned counsel for the plaintiff got deleted his name from the array of the

parties.

12. Defendant No.11 who is the Station House Officer of the Police

Station Vikas Puri was also deleted from the array of the parties vide order

dated 17.05.2010 as per the statement of the learned counsel for the

plaintiff.

13. Written statement was filed on behalf of defendant No.10, i.e.

MCD who supported the case of the plaintiff.

14. As far as the remaining defendants No.1 to 7 & 9 are

concerned, vide order dated 26.10.2010 their right to file the written

statement was closed on their failure to file the same despite various

opportunities. However, on 04.05.2011, Mr. Rajesh Tyagi, Advocate

appeared on behalf of defendants No.2 to 6 before the Joint Registrar and

stated that he was willing to give an undertaking regarding the relief

sought by the plaintiff. The Court also granted time to defendants No.2 to

6 to file their affidavits in this regard, but they failed to file the same

despite various opportunities and later on, no one appeared before the

Court when the matter was listed.

15. The plaintiff was granted time to file a short affidavit in terms

of its evidence whereupon it filed an affidavit of Mr. P.K.Sehgal who is

the Chairman of the Managing Committee of the plaintiff-school. In his

affidavit, the said Mr. P.K.Sehgal has corroborated the averments as

mentioned in the plaint and stated that the defendants No.1 to 7 & 9 are

causing obstruction in the smooth flow of the traffic by parking their

vehicles on both the sides of the road. The statement made by Mr. S.K.

Sangal has gone unrebutted as no cross-examination was conducted by

any of the defendant, therefore, in the absence thereof, it is taken as

correct.

16. The learned counsel for the plaintiff has argued that under

Section 28 of the Delhi Police Act, 1978, the obligation to regulate traffic

is with the police authorities, whereas Section 298 of the Delhi Municipal

Act, 1957 prescribes that public streets are vested in Corporation (MCD).

The legislative intention is, therefore clear that both the police and the

MCD are duty bound to maintain the essential characteristics of public

roads and streets.

17. He has further argued that this obligation is not merely

confined to removing obstructions or structures on such roads, but to

ensure free and smooth flow of traffic. Unlawful parking or vehicular

obstructions would hinder free flow of traffic, and also decrease road

space. In support of his submissions, the learned counsel has referred the

judgments delivered in the cases of Sundari H. Navani vs. M.C.D. &

Ors., reported in 135(2006) DLT 124 and Okhla Industrial Estate

Association vs. M.C.D. & Ors., reported in 132(2006) DLT 9.

18. The learned counsel for the plaintiff has also drawn my

attention towards the document titled "Policy Guidelines for Installation of

Gates for Security Purpose in Colonies" which has been filed by defendant

No.10, i.e. the Municipal Corporation of Delhi along with its written

statement.

19. A perusal of this document shows that the Deputy Commission

of MCD Zone concerned has been authorized to give permission for

erection of gates, subject to Resident Welfare Association adhere to certain

points. The points relevant for the purpose of adjudicating the issue

involved in the present suit are as under:-

"3(b). Gate should be installed in colonies where the right of way of road is upto 18.3 meter. The gates would be provided only if it is internal road of the colony and does not have buses plying on it.