Try out our Premium Member services: Virtual Legal Assistant, Query Alert Service and an ad-free experience. Free for one month and pay only if you like it.
In the Court of Dr. Rakesh Kumar : Additional Senior Civil Judge of
Central Delhi District at Tis Hazari Courts, Delhi
Suit No. 171/2011
Unique I.D. No. 02401C0358702011
In the matter of :
Naved Kamran,
Son of Faizal Islam,
Resident of 1804, Gali Katra Sheikh Chand,
Bazar Lal Kuan, Delhi - 110006 .....Plaintiff
V E R S U S
1. Shakeel Ahmed,
Son of Jamil Ahmed,
Resident of 1812, First Floor,
Gali Katra Sheikh Chand,
Bazar Lal Kuan, Delhi - 110006
2. Jamil Ahmed,
Son of Abdul Aziz,
Resident of 1792, Gali Katra Sheikh
Chand, Bazar Lal Kuan,
Delhi - 110006
3. Laeeq Ahmed,
Son of Jamil Ahmed,
Resident of 1792, Gali Katra Sheikh
Chand, Bazar Lal Kuan,
Delhi - 110006
4. Delhi Development Authority,
Through Vice Chairman,
INA Vikas Sadan,
New Delhi
5. Municipal Corporation of Delhi,
Through its Chairman,
Delhi Gate, Delhi
Suit No. 171/2011 Page 1/6
6. Mohd. Akram,
Son of late Abdul Salam,
Resident of J22, Third Floor,
Gali No. 12, Ramesh Park,
Delhi - 110092 ......Defendants
ORDER
1. This order shall decide an application under Order XII Rule 6 read with Section 151 of the Code of Civil Procedure, 1908 (in short CPC) made on behalf of the plaintiff for passing a decree in favour of the plaintiff and against the defendants in respect of the prayer (ii) of the plaint on the basis of admissions made by the defendants in their written statement.
2. In the present application, it is stated that no licence/permission/sanction has been filed by the defendants no. 1 to 3 before this court to show that factories have any sanction from Municipal Corporation of Delhi; that the admission of running of factories in the residential area by the defendants no. 1 to 3 has been made by the defendants no. 1 to 3 in their written statement; that the averments of the plaintiff have also been admitted by the defendant no.4; that the admissions made by the defendants are clear and unambiguous.
3. The defendants no.1 to 3 opposed the present application by filing the reply taking wherein preliminary objections to the effect that the application filed by the plaintiff is apparently farfetched, misconceived and untenable; that it does not spell out or even specify any unequivocal/unambiguous admission of the defendants no. 1 to 3 which may entitle the plaintiff to seek and obtain a decree against the answering defendants in terms of some of the prayers made in the plaint; that it is Suit No. 171/2011 Page 2/6 well settled that the relief under Order XII Rule 6 CPC is discretionary relief and the plaintiff is not entitled to the relief sought as a matter of right.
4. In reply on merits, it is contended that the licenses issued by the Municipal Corporation of Delhi to the answering defendants are displayed outside the premises of the answering defendants. Other allegations of the application have been denied and disputed by the defendants and prayed for dismissal of the application.
5. I have heard counsel for the parties and perused the material available on record carefully. I have also gone through the judgments relied upon by the plaintiff.
6. Having drawn my attention on paragraphs no. 16 to 19 of reply on merits of the written statement filed on behalf of the defendant no. 4 the learned counsel for the plaintiff submitted that part prayer of the plaintiff is admitted. It is further submitted that the defendants no. 1 to 3 are running polluting industries.
7. Per contra, having drawn my attention on the photographs the learned counsel for the defendants no. 1 to 3 submitted that photographs clearly show that maternal grandfather of the plaintiff was raising construction in the property in question. It is further submitted that the plaintiff has come to the court to seek injunction, however the court injuncted the plaintiff himself. It is further submitted that the property in question belongs to a private person and the defendants no. 1 to 3 started industries in it for making fiber sheets and it is not the case of the plaintiff Suit No. 171/2011 Page 3/6 nor it is claimed by the defendant no. 4 that the property in question belongs to the defendant no.4/DUSIB. It is further submitted that the property in question is freehold. It is further submitted that the pleadings to be read as a whole and not in piecemeal. It is further submitted that this Court has no jurisdiction to try and entertain the present suit as the Central Pollution Control Board/State Pollution Control Board/Appellate Authorities constituted under the Air (Prevention And Control of Pollution) Act, 1981 and the Water (Prevention And Control of Pollution) Act, 1974 have jurisdiction.
8. I have given my thoughtful consideration on the submissions made on behalf of the parties.
9. By way of present application, the plaintiff is seeking passing a decree in favour of the plaintiff and against the defendants in respect of the prayer (ii) of the plaint on the basis of admissions made by the defendants in their written statement. The contentions raised on behalf of the plaintiff is that in written statement the defendants have admitted prayer clause (ii) of the plaintiff. Prayer Clause (ii) of the plaint reads as under: "direct the defendants no. 4 and 5 to remove/demolish the unauthorized construction (by means of a decree of mandatory injunction) already raised by the defendant no.1 in collusion with the defendants no. 4, 5 and 6 and also direct the defendants no. 4 and 5 to take immediate and strict action against the defendants no. 1 to 3 for carrying out the commercial activities and running polluting factory in the residential area of Katra Sheikh Chand, Lal Kuan, Delhi110006 as mentioned in para 16 herein above.
10. In their joint written statement, the defendants no. 1 to 3 made the following contentions: Suit No. 171/2011 Page 4/6 "These factories/industrial establishments are being run by the answering defendants, jointly as well as severally, strictly in accordance with the sanctions accorded to them by the authorities concerned. Today, for certain reasons, the Municipal Corporation of Delhi has been insisting that these factories/industrial establishments be shifted to approve industrial areas."
11. The defendant no. 4 raised the following contentions in its written statement: "Therefore, defendants no. 1 to 3 have no right to raise any construction or run any pollution creating activity, viceversa the plaintiff has no right to do the same in the suit property. "
12. In the plaint, it is alleged by the plaintiff that polluting industries like, printing press, dyes and chemical of cloth are presently running either in the name of the defendants no. 1, 2 & 3.
13. In para no. 16 of the reply on merits of the joint written statement of defence of the defendants no. 1 to 3, it is specifically denied that the printing press running in property bearing no. 1812 releases iron ore or that it is health hazard as alleged. In the said paragraph, it is also denied that dyer dying clothes and particularly chunnies and sarees is carrying on in second and third floor of the property no. 1812. In view of the above contentions, these allegations made by the plaintiff in the plaint are specifically denied by the defendants no. 1 to 3. Moreover, the defendants have nowhere admitted in the written statement that the industries being run in their properties are polluting industries.
14. Law is well settled that for judgment on admission under Order XII Rule 6 CPC there must be clear, unambiguous and unequivocal admissions on behalf of the defendants. But, the plaintiff has failed to point out such clear, unambiguous and unequivocal admissions made on behalf of the defendants.
Suit No. 171/2011 Page 5/6
15. Further, Sections 46 of the Air (Prevention And Control of Pollution) Act, 1981 and 58 of the Water (Prevention And Control of Pollution) Act, 1974 bar the jurisdiction of Civil Court relating to the pollution cases.
16. For the reasons abovestated, I do not find any merits in the present application and the same is, accordingly, dismissed.
Announced in the Open Court on 19.02.2013 (Dr. Rakesh Kumar) Additional Senior Civil Judge Central District: Tis Hazari Courts: Delhi Suit No. 171/2011 Page 6/6