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         IN THE COURT OF SH. SIDHARTH SHARMA: ACSJ, DELHI.

SUIT NO:863/08/03.

In the matter of:

Sh. Anwar Khan,
S/o Sh. Muzaffar Khan,
R/o 1810, Katra Sheikh Chand,
Lal Kuan, Delhi­110006.
                                                                             ..........Plaintiff
Versus

1. Sh. Imtiaz Mohd @ Mumtaz
S/o Late Sh. Riaz Mohammad,
R/o 1810, Katra Sheikh Chand,
Lal Kuan, Delhi­110006.

2. Municipal Corporation of Delhi
Through its Commissioner,
Town Hall, Chandni Chowk, Delhi­06.

3. Delhi Pollution Control Committee,
4th Floor, Interstate Bus Terminal,
Kashmere Gate, Delhi­06.
                                                                      ...........Defendants.

           SUIT FOR PERMANENT & MANDATORY INJUNCTION.

: JUDGMENT :

1. Plaintiff has filed this suit for permanent and mandatory injunction. He has claimed himself to be tenant of entire first & second floor of property bearing No.1810, Katra Sheikh Chand, Lal Kuan, Delhi. It is the case of the plaintiff that defendant no.1 is in possession of the Page numbers ground floor and about a year back from the filing of the suit started using the ground floor for the purpose of running business of commercial cook and for that purpose, he installed bhatti in the courtyard and the said bhattis are burnt by wooden fuel because meat and other items cannot be prepared by any other fuel as they require high heating which can be given only by wooden fuel. It is the case of the plaintiff that due to the burning of this wood, smoke travels to the first and second floor which cause pollution and inconvenience to the plaintiff. It is the case of the plaintiff that the said bhatti and the business of commercial cook has been carried out without getting licence from defendant no.2 (MCD) under the D.M.C. Act. It is further stated that he is also to take permission from defendant no.3 i.e. Delhi Pollution Board. Hence, the suit has been filed for restraining defendant no.1 from burning of wooden fuel bhatti and running commercial business without getting proper licence. It is also prayed that mandatory injunction be also passed against defendant no.2 directing them to take action against defendant no.1 for running business without obtaining licence. A further injunction has been prayed directing defendant no.3 to take action against defendant no.1 for running the pollution unit without proper 'No Objection' certificate.

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2. In the written statement filed by defendant no.1, he stated that the present suit has been filed as a counterblast due to the various litigations between the parties. He has denied that he is using a wooden bhatti and further stated that no licence was required and no 'No Objection' certificate was required from the Pollution Department as the Pollution Department has already inspected the premises and the same was found in order. He denied the case of the plaintiff. He denied that any licence was required to carry out this business activity.

3. Written statement also been filed by defendant no.2 who stated that the suit premises was inspected by the area officials of defendant no.2 and they found that defendant no.1 was using one room at the ground floor as commercial kitchen without any trade licence/municipal licence. As such, he was prosecuted for running the trade without licence under Sec.417/397 of D.M.C. Act. It was further stated that as & when work in the commercial kitchen would be seen in progress, the same shall be dealt strictly as per the provisions of D.M.C. Act.

4. Defendant no.3 also filed their written statement stating that their officials had also inspected the site on 28.3.2003 and did not find any cooking activity or pollution activity and a letter was issued to Page numbers defendant no.1 on 8.5.2003 with directions to stop the use of wood with immediate effect and convert the same to LPG.

5. Replication was filed to all the written statement of the defendants by the plaintiff who denied the case of the defendants and reiterated the averments in the plaint.

6. My learned predecessor decided the application under Order XXXIX Rule 1 & 2 r/w Sec. 151 of the CPC whereby the application was allowed and the defendant no.1 was restrained from burning of wooden fuel bhatti and from running commercial business without obtaining proper licence from the defendant no.2 and without getting any sanction from defendant no.3 on the suit property. Defendant no.2 & 3 were also directed to take action as per law with respect of any breach committed by defendant no.1.

7. On the basis of the pleadings of the parties, following issues were framed vide order dated 9.11.2005:

a. Whether the defendant no.1 has been causing nuisance to the plaintiff by using bhattis to run his business? OPP. b. Whether the defendant no.1 has been running his business without Page numbers obtaining any licence from the MCD and no objection from the DPCC? OPP.

c. Whether the plaintiff has not approached to the court with clean hands? OPD.

d. Whether the plaintiff acquiesced in the acts of the defendant no.1 in running his business? OPD e. Whether the suit is not maintainable in view of Section 477/478 of the D.M.C. Act Act? OPD.

f. Whether the suit is not maintainable in view of the Section 43 of the (Prevention & Control of Pollution) Act, 1981? OPD g. Relief.

8. The plaintiff examined himself as PW­ 1 and none of the defendants cross examined this witness.

9. I have heard the final arguments advanced by plaintiff as well as defendant no.2 and my issuewise finding is as under:

I propose to decide Issues No. 3, 4, 5 & 6 before deciding Issues No.1 & 2.

ISSUES NO.3&4

10.The burden to prove both these issues was on defendant no.1 who failed to lead any evidence and therefore, this issue is decided against Page numbers the defendant and in favour of the plaintiff.

ISSUE NO.5

11.The suit of the plaintiff is for injunction which is covered under the Proviso to Sec. 478 of D.M.C. Act. The burden to prove this issue was on defendant no.2 who did not lead any evidence. Hence, the issue is decided against the defendant and in favour of the plaintiff. ISSUE NO.6

12.The burden to prove this issue was upon the defendant no.3. An application of the defendant no.3 under Sec. 46 of the Air Prevention & Control of Pollution Act of 1981 was allowed vide order dated 8.1.2004, Defendant no.3 did not lead any evidence to prove this issue. In view of the same, the issue is decided against the defendant. ISSUE NO.1

13. The plaintiff has examined himself and proved that the defendant no.1 was carrying out a commercial kitchen and burning wooden fuel bhatti and was also running business without proper licence from defendant no.2 and without obtaining proper sanction from defendant no.3. Finally, defendant no.2 & 3 inspected the premises of defendant Page numbers no.1 and the activity of defendant no.1 was booked by officials of defendant no.2 and after prosecuting him, he was warned not to carry out commercial business without obtaining a valid municipal licence. Similarly, officials of defendant no.3 after inspecting the premises of defendant no.1 issued a direction to him not to use wooden fuel and to convert the same to LPG. It is also quite clear that burning of wood from the kitchen emits smoke and is obviously causing nuisance to plaintiff who is residing on the second floor of the premises. Accordingly, this issue is decided in favour of the plaintiff. ISSUE NO.2

14. It has been proved by the pleadings of defendant no.2 & 3 that defendant no.1 was running the business without obtaining any licence from defendant no.2 and also 'No Objection' from defendant no.3. The defendant no.1 or the other defendants have not cross examined the plaintiff on this averment and therefore, due to this unchallenged statement of the plaintiff, this issue is decided in favour of the plaintiff. Relief

15. In view of the findings on the issues above, plaintiff is entitled for a decree of permanent injunction. Defendant no.1 is restrained from Page numbers burning wooden fuel bhatti and from running commercial business without obtaining proper licence from defendant no.2 and without getting any sanction from defendant no.3 on the ground floor of the property bearing No.1810, Katra Sheikh Chand, Lal Kuan, Delhi. The defendant no. 2 & 3 are further directed to take action against the defendant no.1 as per law in case of any breach committed by defendant no.1 in case the defendant no.1 does not obey the restraint order as passed by this court. Decree sheet be prepared in terms of the order. File be consigned to the record room.

PRONOUNCED IN THE OPEN COURT

       th
ON:  15    May, 2009.
                     
                                                               (SIDHARTH SHARMA)
                                                                      ACSJ/DELHI.