Santosh Marwah vs Sohan Lal (deceased) through L.Rs.

Indermeet Kaur, J.—This appeal has impugned the judgment and decree dated 23.1.2001 which has endorsed the finding of the trial judge dated 4.4.1994. Vide the judgment and decree dated 4.4.1994 the suit of the Plaintiff Santosh Marwah for permanent and mandatory injunction had been dismissed on a preliminary issue. The preliminary issue framed on 13.1.1994 reads as follows:

Whether the suit of the Plaintiff is not maintainable because the building byelaws are not applicable to the land in urbanized villages as alleged by the Defendant? OPD

The trial judge relying upon a Notification No. F-9 (2)/66-Law Corp. dated28.5.1966 wherein it was noted that certain localities have ceased to be rural areas and name of Zamrudpur (suit property) finding mention therein, it was held that the suit of the Plaintiff is not maintainable as the building byelaws of the Delhi Municipal Corporation, 1957 (hereinafter referred to as ''the DMC Act) would not apply to urbanized villages. This finding of the trial judge was confirmed by the impugned judgment on 23.1.2001 holding that the grant of permanent and mandatory injunction cannot be granted in favour of the Plaintiff as the building byelaws of 1983 of the DMC Act are not applicable. However, with regard to the relief qua the closure of the flour mill the matter had been remanded back to the trial court.

This is a second appeal. It is yet to be admitted.

On behalf of the Appellant it has been urged that the notification on which reliance had been placed by the courts below i.e. No. F-9 (2)/66-Law Corp. dated 28.5.196 refers to ''localities'' and the finding in the impugned judgment holding that the provisions of DMC Act would not apply to urbanized villages is illegal as there is a distinction in the words ''locality'' and ''village'' and one is not interchangeable with the other. However, in support of this submission learned Counsel for the Appellant has no further argument to advance.

The notification dated 28.5.1966 reads as under:

NOTIFICATION

Delhi, the 28th May, 1966

No. F-9 (2) 66-Law Corp.-In exercise of the powers conferred by Clause (a) of Section 507 of the Delhi Municipal Corporation Act, 1957 (66 of 1957) the Corporation, with the previous approval of the Central Government, hereby declares that the following localities mentioned in the Schedule given below, hitherto forming part of the rural areas, shall cease to be rural areas:

The Schedule contains the names of the Revenue Estates. South Delhi is shown in Column II; at serial No. 11 Zamrudpur finds mention. By virtue of this notification, it is clear that u/s 507(a) of the DMC Act Zamrudpur has ceased to be a rural area. This was also the defence in the written statement to which there was no rebuttal in the replication.

Counsel for the Appellant has placed reliance upon a judgment of a division bench of this Court reported in 113 (2004) DLT 263 (DB) Dr. B.L. Wadhera v. Govt. of NCT of Delhi and Ors. to support his submission that the notification of 1966 has ceased to have effect and for this proposition he has placed reliance upon para 14of the said judgment. This argument of counsel for the Appellant is totally bereft of any merit as is evident from the reading of the said paragraph i.e. para 14which refers to the notification of the year 1963. The present suit property is covered under the notification of the year 1966.

The findings of the two courts below call for no interference. It has clearly been established that the suit property which is located in Zamrudpur had vide the a for enoted notification of 1966 ceased to be a rural area; the provisions of the DMC Act are not applicable to urbanized villages; Zamrudpur having become an urbanized village it was rightly held that the applicability of the building byelaws being excluded, no cause of action had accrued in favour of the Plaintiff/Appellant. Appeal is dismissed in limine.