Residents Welfare Association B-5 Block, Paschim Vihar v. Residents Welfare Association B-2 Block, Paschim Vihar

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, 2014:DHC:835 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 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. ib