New Delhi Municipal Council v. Tara Chand & Ors.

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 2013:DHC:4147 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’