New Delhi Municipal Council vs Tara Chand & Ors.
2013 Latest Caselaw 3696 Del

*                    HIGH COURT OF DELHI AT NEW DELHI

+           R.S.A. No.138 of 2012 & C.M. No.13841/2012 (for stay)

                                      Decided on : 22nd August, 2013

NEW DELHI MUNICIPAL COUNCIL            ...... Appellant
            Through: Dr. Ritu Bhardwaj, Advocate.

                         Versus

TARA CHAND & ORS.                                  ...... Respondents

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (ORAL)

1. This is a regular second appeal filed by the appellant/NDMC under

Section 100 CPC against the judgment dated 18.1.2012 passed by the

learned Senior Civil Judge in R.C.A. No.11/2005.

2. I have heard the learned counsel for the appellant. It has been

stated that in terms of the orders passed by the trial court on 1.11.2004

and affirmed vide impugned order, the appellant/NDMC was directed not

to dispossess the respondents from the parking lot allotted to them except

after an alternative accommodation is provided to them in terms of the

compromise dated 16.3.1962. The learned counsel has contended that

although four sites have already been identified but they are yet to be

offered to the respondents. It has also been stated that although the

appellant will be offering an alternative site to the respondents shortly,

however, a grievance is raised in the instant appeal with regard to the fact

that though the respondents were allotted only a cycle stand but the

impugned order as well as the order of the trial court have referred to the

cycle stand as cycle-cum-scooter stand which is factually incorrect.

Accordingly, a prayer has been made for entertaining the present appeal.

3. I have considered the submissions made by the learned counsel and

have also gone through the record. The respondents filed a suit bearing

No.97/97 (225/86) for permanent injunction on 31.5.1986 praying therein

a restraint against the appellant/defendant from disturbing their

possession for running a cycle/scooter stand at the place allotted to them

in Connaught Place. Further, it was prayed that the respondents/plaintiffs

may not be dispossessed till the appellant/defendant allots an alternative

accommodation or rehabilitates the respondents/plaintiffs as per the

agreement. The suit was contested by the appellant/defendant.

4. On the pleadings of the parties, following issues were framed :-

"1. Whether any compromise was arrived at between the plaintiff and NDMC? (OPP)

2. Whether on the basis of that compromise the plaintiffs are entitled to the alternative accommodation? (OPP)

3. Whether the plaintiffs are entitled to the relief of injunction? (OPP)

4. Whether the suit is barred under Section 49 of Punjab Municipal Act? (OPP)

5. Relief."

5. The parties adduced their evidence and on 1.11.2004, the trial

court, after examining the entire evidence, directed that the

respondents/plaintiffs have to be allotted an alternative site or they have

to be rehabilitated properly before they are disturbed from the present

site, so far as the possession of the cycle/scooter stand allotted to them is

concerned.

6. On feeling aggrieved, the appellant/defendant filed an appeal being

R.C.A. No.11/2005 which was dismissed on 18.1.2012 upholding the

decision of the trial court.

7. The appellant still not feeling satisfied has preferred the present

regular second appeal. The submission which has been made by the

learned counsel for the appellant that the allotment to the

respondents/plaintiffs was for a cycle stand and not a cycle-cum-scooter

stand. This is essentially a question of fact which has been already

adjudicated by the Court. The learned counsel has failed to show to the

Court that this argument was ever urged before the two courts below. No

other substantial question of law has been raised in the present appeal or

urged before this court. Therefore, this appeal does not have any merit.

On the contrary, the appellant on their own admission have already

identified four sites and the only thing to be done by them is to offer any

of the four sites selected by them to the respondents/plaintiffs in

compliance to the concurrent finding returned by the two courts below.

8. I do not feel that there is any merit in the present appeal and

accordingly, the same is dismissed.

V.K. SHALI, J.

AUGUST 22, 2013 'AA'