Residents Welfare Association ... vs Residents Welfare Association ...
2014 Latest Caselaw 827 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                RSA No. 239/2013
%                                    12th February, 2014
RESIDENTS WELFARE ASSOCIATION B-5 BLOCK, PASCHIM
VIHAR & ORS.                               ......Appellants.
                 Through: Ms. Neha Gupta, Adv.


                           VERSUS

RESIDENTS WELFARE ASSOCIATION B-2 BLOCK, PASCHIM
VIHAR & ORS.                    ...... Respondents
                Through:

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1.             The challenge by means of this regular second appeal is to the

judgment of the first appellate court dated 15.7.2013, by which the first

appellate court accepted the appeal filed by the defendants against the

judgment of the trial court dated 31.8.2012 decreeing the suit for mandatory

and permanent injunction for removal of the pillars on the public road.

2.             The first appellate court allowed the appeal of the defendants

inasmuch as the private pillars which were fixed by the defendants in the

trial court, and who were the appellants before the first appellate court, were

stood removed by the Municipal Corporation of Delhi (MCD). Thereafter,
RSA 239/2013                                                                Page 1 of 3
 the MCD itself had fixed ballasts/pillars on the road inasmuch as, MCD had

the necessary powers under Section 325(1)(c) of the Delhi Municipal

Corporation Act, 1957. The ballasts/barriers were fixed because the road

was only 10 ft. wide and not suitable for heavy vehicular traffic. The effect

of fixing of the ballasts is that road continues to remain open but not for

heavy vehicular traffic.

3.             Before me, counsel for the appellants, and who were the

plaintiffs in the trial court, argues that MCD if it had fixed the ballasts

should have followed the due procedure of law as specified under the Delhi

Municipal Act including under Section 325 but the ballasts were fixed

without following the due procedure.

4.             In my opinion, the argument urged on behalf of the appellants

herein, plaintiffs in the trial court, is misconceived because the suit which

was filed by the appellants-plaintiffs was with respect to removal of the

private pillars which were fixed by the defendants in the suit. Once the

private pillars were removed by the MCD, the suit itself would not survive.

Therefore, the appellate court taking this fact on record has committed no

illegality in disposing of the appeal by stating that private pillars stand

removed but the new ballasts have been fixed by the MCD considering the


RSA 239/2013                                                              Page 2 of 3
 small width of the road which is of 10 ft and which is not suitable for heavy

vehicular traffic.

5.             In view of the above, there is no substantial question of law

which arises for this appeal to be entertained under Section 100 CPC, and

the same is therefore dismissed, leaving the parties to bear their own costs.




FEBRUARY 12, 2014                             VALMIKI J. MEHTA, J.

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