Delhi District Court
R.K. Narang vs New Delhi Municipal Corporation on 24 December, 2011
1
IN THE COURT OF Ms. VEENA RANI : COMMERCIAL CIVIL
JUDGE: PATIALA HOUSE COURTS, NEW DELHI
Suit No:72/2011
1. R.K. Narang
2. G.K. Tiwari .....Plaintiffs
Versus
1. New Delhi Municipal Corporation
2. New Delhi Bar Association .....Defendants
3.
ORDER
1. Vide this order I shall decide the application under order 39 rule 1 & 2 CPC filed by the plaintiffs against the defendants seeking directions to the defendant No:1 to install the electricity meter by accepting the demand draft of Rs.10,000/ and installation charges and further direction to the defendant No:2 to provide the electricity through generator set to the New Chamber Complex at the cost of the plaintiffs and similarly situated chamber holder on the urgency basis in the interest of justice. Briefly stated the facts for the disposal of above application are as under:
2. plaintiffs have filed the present suit for declaration and mandatory injunction against the defendants. It is the case of the plaintiffs that they R.K. Narang & others Vs. New Delhi Municipal Corporation & Ors 2 are practicing advocates having their chambers in New Chamber Complex, Patiala House Courts , New Delhi and have been operating from their respective chambers for the purpose of their professional activities in the Patiala House Courts and other courts of Delhi. It is stated that the present suit has been filed as representative suit for the benefit of numerous persons/advocates who are having their chambers and running their professional activities and they are the sufferer.
3. It is submitted that a single electricity connection was provided to defendant No:2 by the defendant No:1 in the year 1998 for which a special cable was laid by the defendant No:1 charges of which were contributed by the members having their chambers in the New Chamber Complex in Patiala House Courts premises. It is stated that after the sanction of the electricity connection by the defendant No:1 in the name of the defendant No:2, the defendant No:2 started providing electricity to the chamber holders of New Chamber Complex and also to chops, photostate machines, lawyer sitting in B.S. Mehta Lane opposite to the New Chamber Complex and also to 8/10 cooler in front of the New Chamber Complex installed in B.S. Mehta Lane, Water Coolers installed in the New Chamber Complex, Varanda Lights in New Chamber Complex and for other purposes also. It is averred that the members of the New Chamber Complex including the plaintiffs started contributing towards R.K. Narang & others Vs. New Delhi Municipal Corporation & Ors 3 the payment of electricity from time to time bill raised by the defendant No:12 in the name of the defendant No:2 against the single connection.
4. It is stated by the plaintiffs that after some time it was found by the plaintiffs and other chambers holder that some of the chamber holders started using the Air Condition and photostate machine and computer work in their chambers and then the non A.C Chamber holders member including the plaintiffs approached to the defendant No:2 and made the request to look into the matter for the purpose of dividing electricity charges amount the A.C chamber holders and non A.C chamber holders of New Chamber complex as the plaintiffs being non A.C chamber holders were using only two point i.e. one for fan and one for tube light. It is submitted that on the representation made by the plaintiffs to the defendant No:2, it was decided in the executive committee of the defendant No:2 that A.C chamber holder would pay Rs.1850/ per month and non A.C holder chamber would pay Rs.200/ per month. The resolution passed in the defendant No:2 in this regard is placed on record by the plaintiffs as Annexure A & A1.
5. It is averred by the plaintiffs that some of the chamber holders who installed A.C and other appliance did not pay Rs.1850/ p.m which they felt to be on the higher side and then the defendant No:2 started demanding the electricity charges in equal ration, thereafter, the non A.C R.K. Narang & others Vs. New Delhi Municipal Corporation & Ors 4 chamber holder also did not pay the amount due to controversy arises. It is stated that thereafter, the defendant No:2 with the consent of defendant No:1 installed sub meter of electricity in each chambers. plaintiffs have placed on record the copy of the bill of sub meter which has been installed in their chamber, which is filed as annexure "C".
6. It is stated that after the installation of the sub meter the plaintiffs and other similarly situated chambers holders tarted making the payment as per sub meter but some of the A.C chamber holders refused to pay the electricity charges as per sub meter, with a result a dispute has arisen and the electricity charges increased against the defendant No:2 day by day as the electricity charges remained unpaid for a long time. It is stated that defendant No:2 also avoided to enter into the controversy of the A.C and non A.C chamber holders and stopped the collection for electricity charges from the plaintiffs and other chamber holders.
7. It is submitted that plaintiffs and other similarly situated members holders tried to make the payment to the defendant No:2 as per the sub meter @ Rs.200/ per month but defendant No:2 did not accept the said charges on the ground that huge arrears of the electricity charges remained unpaid to the defendant No:1.
8. It is stated by the plaintiffs that they were informed by the defendant No:2 that after great persuasion with the office of the defendant R.K. Narang & others Vs. New Delhi Municipal Corporation & Ors 5 No:1, a letter was received on 2972010 addressed to the defendant No:2 in which a fresh connection in the name of the individual chamber holders of New Chamber Complex was to be issued and as per the aforesaid letter the defendant No:1 agreed to install the electricity connection on the completion of the certain formalities as mentioned in the said letter which is filed on record as Annexure D.
9. It is averred by the plaintiffs that on the receipt of the letter dt. 2972010 and further the letter dt.482010 written by the defendant No:2 to the defendant No:1, the defendant No:1 ascertained the exact amount payable by each chamber at random without differentiate between AC and Non AC chamber and without considering the consumption being made by the photostate machines installed in the premises and the consumption of electricity by the shops and B.S. Mehta Lane, , with a result, the amount apportioned to each chamber cost of Rs.62871/ up to august, 2010 and called upon the President of the Bar vide letter dt.1492010 to call upon the individual chamber owners/occupant for individual connection on the same terms and conditions as stated above. The copy of the said letter is filed on record as Annexure F. plaintiffs stated that they have taken the matter with the defendant No:2 with regard to the A.C and Non A.C, electricity provided to the photostate machine, shops and partly supplied to BS Mehta Lane, but no action was taken by the defendant No:
R.K. Narang & others Vs. New Delhi Municipal Corporation & Ors 6 2 for the purpose of ascertaining the exact amount to be payable on the basis of final demand raised by the defendant No:1 to be apportioned between the member/chamber holders keeping in view the aforesaid facts and circumstances but no action was taken by the defendant No:2. Letter written to the defendant No:2 in this regard is also placed on record by the plaintiffs which is annexure 'G'. It is stated that defendant No:2 in stead of taking over the issues as mentioned herein above of the plaintiffs and other chamber holders with the defendant No:1 unilaterally made various discussions and got another letter in the name of the secretary of the Bar dt.832011, further burdening the members by increasing the individual shares to Rs.25000/ per month payable as adhock payment at the time of applying for the connection instead of Rs.10,000/ and the balance amount of arrears is to be payable in eight equal monthly installment of Rs.4996/ per month starting from April, 2011 to November, 2011. It is averred that plaintiffs have made a representation dt.2662011 to the defendant No:2 which was received by the defendant No:1, for consideration of waiver of commercial rate and bulk tariff being single meter which was the base of calculation of the arrears of electricity consumption but no action has been taken so far by them.
10. It is averred by the plaintiffs that electric connection was disconnected arbitrarily and illegally in November/December, 2010 by the R.K. Narang & others Vs. New Delhi Municipal Corporation & Ors 7 defendant No:1, thereafter the arrangement of generators was made for providing the electricity to the chambers of New Chamber Complex by the defendant No:2 on the personal expenses of the members of the Bar of aforesaid complex which act of the defendant No:2 was also arbitrary. plaintiffs stated to have sent a representation dt.2662011 to the defendant No:1 through courier but no action was taken by the defendant No:1 and plaintiffs also approached the defendant No:2 on 1492011 to consider the said issue and provide individual electric connection but no action has been taken by the defendants.
11. It is stated by the plaintiffs that they came to know that defendant No:2 has been issuing the No Objection Certificate in connivance with the defendant No:1 after taking arrear as mentioned in the letter without considering and resolving the issue raised in the representation dt. 2662011 and by this act of the defendants the plaintiffs will suffer irreparable losses which can not be compensated in any manner. It is averred that act of the defendants is arbitrarily, illegal, unlawful, unjustified and the plaintiffs have been without electricity since December, 2010 and unable to operate their chambers for their professional activities. Hence, the present case.
12. The defendant No:1/NDMC filed written statement and raised preliminary objection that plaintiffs have no locus standi to file the present R.K. Narang & others Vs. New Delhi Municipal Corporation & Ors 8 suit because they are not the registered consumer of defendant No:1 since the temporary connection bearing No:KT14158 LC was sanctioned in the name of the defendant No:2 i.e. New Delhi Bar Association on their own request and the plaintiffs have no direction relations with the defendant No:1, therefore, the present suit of the plaintiffs is liable to be dismissed on this ground alone.
In their reply on merits it is stated by the defendant No:1 that right from the date of installation of the aforesaid electricity connection, the defendant No:1 has not been making the payment of electricity bills regularly and since the huge amount of unpaid electricity dues accumulated and said dues were not paid , therefore, the aforesaid electricity connection was disconnected by the defendant No:1. It is stated that despite repeated requests and meetings with the defendant No:
2, the defendant No:2 did not make the payment of the dues accumulated against the said connection. It is further stated that defendant No:2 submitted a list of 311 users of electricity from the aforesaid connection and it was mutually decided to sanction a separate electricity connections in their favour subject to clearance of their shares of unpaid electricity dues based on unpaid principal demand only i.e. excluding Late Payment Surcharge, that too on Adhoc payment of Rs.25000/ subject to fulfillment of usual formalities regarding sanction of new electricity connection and R.K. Narang & others Vs. New Delhi Municipal Corporation & Ors 9 payment of balance amount in installment with interest @8% against normal rate of 18% p.a. and the share of each member was work out to Rs. 64696/. It is submitted that 173 actual chamber owners/occupants have made the adhoc payment of Rs.25000/ and the electricity meters have already been installed in the number of chambers. It is stated by the defendant No:1 that the contention of the plaintiffs to install electricity meter by accepting the amount of Rs.10000/ and installation charges is not acceptable by the NDMC as the same will create discrimination amongst the chambers holders who have already deposited Rs.25000/ as adhoc payment with their application for new connection.
13. The defendant No:2/New Delhi Bar Association has also filed their written statement and raised preliminary objection that present representative suit filed by the plaintiffs has been converted into ordinary suit by this Hon'ble court vide its order dt.30112011 thereby dismissing the application u/o 1 rule 8 CPC of the plaintiffs, but plaintiffs did not prefer to amend their plaint, hence the present suit is liable to be dismissed as per the provisions of order 7 rule 11 (d) of CPC.
In their written statement it is denied by the defendant No:2 that plaintiffs have paid their share for the use of electricity since the date of installation of the electricity connection till its disconnection by the defendant No:1 for non payment of electricity charges. It is stated that R.K. Narang & others Vs. New Delhi Municipal Corporation & Ors 10 defendant No:1 provided the electricity connection to the chambers holders on the assurance of the defendant No:2 but chamber holders did not make the payment of electricity charges as per consumption and dues to this reason corers of rupees have become due towards electricity charges against defendant No:2 payable to the defendant No:1. It is submitted that plaintiffs have not the paid payment of any dues and not placed on record any proof of payment of such electricity charges. It is stated that plaintiffs were not prevented from using the AC in their chambers and further at the time of installation of the aforesaid single electricity connection it was amply clear that electricity charges shall be divided equally amongst the chamber holders those are using the electricity from single connection. It is stated that representatives of the defendant No:2 have tried their level best to sort out the problem of their members by all mens for the clearing the dues of the defendant No:1 but all in vain as their members including the plaintiffs did not cooperate and dues to this reasons electricity bill of above four crores have been sent by the defendant No:1 and finally the single electricity connection was disconnected due to non payment of the electricity bill in the month of November, 2010 and consequently a single generator was provided by the defendant No:2 to its members but the charges fixed by the Defendant No:2 for the use of generator have also not been paid by some of the R.K. Narang & others Vs. New Delhi Municipal Corporation & Ors 11 members. It is submitted that now the matter has been sorted out between the defendant No:1 and defendant No:2 and individual meter connections are being provided by defendant No:1 to the members of the defendant No:2 and almost all the chamber holders except plaintiffs have accepted the settlement and still applications are being received from the left out members for the installation of individual electricity connection. It is stated that the representatives of the defendant No:2 are still negotiating with the defendant No:1 for giving discount in the remaining installments against the individual electric connection installed in the various chambers. It is submitted by the defendant No:2 that they have no objection if the electricity connection is installed in the chambers of the plaintiffs by the defendant No;1 directly without involving the defendant No:2 in any manner as per the proposal of the plaintiffs and in terms of the order of Hon'ble High Court. The defendant No:2 has denied all the allegations leveled against him by the plaintiffs and prayed that suit of the plaintiffs be dismissed with heavy costs.
14. I have heard the ld. Counsel for the parties and perused the record carefully.
15. The plaintiffsherein seek the declaration that the demands dated 14.09.2010 & 08.03.2011 be declared illegal, unlawful, null & void. The plaintiffs through the present suit also seek mandatory injunction against R.K. Narang & others Vs. New Delhi Municipal Corporation & Ors 12 the NDMC to provide electricity connections to the individual chamber holders without imposing the conditions as stipulated in the demand letter / order dated 14.09.2010 & 08.03.2011. The PRAYER clause of the main suit further seeks the apportionment of the electricity charges to be made on the basis of the fact whether or not the users were using the air conditioners. The other considerations sought to be considered is the usage of the electricity by the photocopy machines, typists etc.
16. Injunction is a form of specific relief. It is an order of a court requiring a party either to do a specific act or acts or to refrain from doing a specific act or acts either for a limited period or without limit of time. In relation to a breach of contract, the proper remedy against a defendant who acts in breach of his obligations under a contract, is either damages or specific relief. The two principal varieties of specific relief are, decree of specific performance and the injunction (See David Bean on Injunctions). The Specific Relief Act, 1963 was intended to be "An Act to define and amend the law relating to certain kinds of specific reliefs." Specific Relief is relief in specie. It is a remedy which aims at the exact fulfilment of an obligation. According to Dr. Banerjee in his Tagor Law Lectures on Specific Relief, the remedy for the non performance of a duty are (1) compensatory, (2) specific. In the former, the court awards damages for breach of the obligation. In the latter, it directs the party in R.K. Narang & others Vs. New Delhi Municipal Corporation & Ors 13 default to do or forbear from doing the very thing, which he is bound to do or forbear from doing. The law of specific relief is said to be, in its essence, a part of the law of procedure, for, specific relief is a form of judicial redress. Thus, the Specific Relief Act, 1963 purports to define and amend the law relating to certain kinds of specific reliefs obtainable in civil courts. It does not deal with the remedies connected with compensatory reliefs except as incidental and to a limited extent. The right to relief of injunctions is contained in partIII of the Specific Relief Act. Section 36 provides that preventive relief may be granted at the discretion of the court by injunction temporary or perpetual. Section 38 indicates when perpetual injunctions are granted and Section 39 indicates when mandatory injunctions are granted. Section 40 provides that damages may be awarded either in lieu of or in addition to injunctions. Section 41 provides for contingencies when an injunction cannot be granted. Section 42 enables, notwithstanding anything contained in Section 41, particularly Clause (e) providing that no injunction can be granted to prevent the breach of a contract the performance of which would not be specifically enforced, the granting of an injunction to perform a negative covenant. Thus, the power to grant injunctions by way of specific relief is covered by the Specific Relief Act, 1963.
17. In the application under Order XXXIX Rules 1 & 2 of the CPC the R.K. Narang & others Vs. New Delhi Municipal Corporation & Ors 14 applicantplaintiffs has sought the directions to the Defendant No.1 i.e. the NDMC to install electricity meter by accepting the demand of Rs. 10,000/. The directions to the Defendant no.2 i.e. The New Delhi Bar Association are sought to provide electricity through the generator set. It is an admitted fact that the electricity was disconnected in the year 2010 and ever since the electricity was being supplied through the generator set.
18. The provisions relating to the temporary injunctions are essentially contained in the Specific Relief Act and the Code of Civil Procedure, 1908 (as amended from time to time till the year 2002 and thereafter).
19. Section 37 in The Specific Relief Act, 1963 deals with the Temporary and the perpetual injunctions. (1) Temporary injunctions are such as are to continue until a specified time, or until the further order of the court, and they may be granted at any stage of a suit, and are regulated by the Code of Civil Procedure, 1908 (5 of 1908 ).
(2) A perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit; the defendant is thereby perpetually enjoined from the assertion of a right, or from the commission of an act, which would be contrary to the rights of the plaintiffs.
20. The Civil Procedure Code deals only with temporary injunctions. It is an ad interim injunction. Its object is to keep matters in status quo until R.K. Narang & others Vs. New Delhi Municipal Corporation & Ors 15 final disposal of the suit. In the CPC it is found in Sections 94(c) and Order 39 Rule 1 to 5. As per Section 94, in order to prevent the ends of justice from being defeated the Court may grant a temporary injunction. This section further goes to say that if the order is disobeyed the Court can commit the person guilty thereof to the civil prison and order that his property be attached and sold.
21. Order 39 Rule 1 of the CPC provides the cases in which a temporary injunction may be granted. The Court may grant the relief in cases where:
(1)a property in dispute is in danger ofbeing wasted, damaged, alienated, sold (2) when the defendant threatens or intends to remove or dispose of his property with a view to defraud creditors (3) when defendant threatens to dispossess the plaintiffs or causes injury to the plaintiffs in relation to any property in dispute The judicial precedents have set up some basic conditions to be satisfied for the grant of preventive relief of injunction. They are (1) Prima facie case, (2) Irreparable injury, (3) Balance of convenience. The applicant must prove the existence of a prima facie right in his favour. The court must be satisfied that there is every probability tilting in his favour.
The party must argue that there is serious question to be tried if the test of R.K. Narang & others Vs. New Delhi Municipal Corporation & Ors 16 'prima facie' is satisfied. The applicant must satisfy the Court that an order is highly necessary without which a right accrued in favour of the party concerned cannot be protected from injury and which is also not compensable. By satisfying these conditions the party can very well argue that the balance of convenience is in his favour. The power of injunction is a preventive relief and it should not be granted as a matter of right unless the above conditions are satisfied.
As far as mandatory injunctions are concerned S.39 of the Specific Relief Act provides :
When, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the court is capable of enforcing, the court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts.
There are essentially two types of injunctions i.e. Perpetual and Mandatory. The perpetual or Permanent Injunctions are essentially retrain orders in order to prohibit an act while Mandatory injunctions are the directions to a party to perform a certain act. The provisions of the CPC would only cover the situations where a restrain order is sought even if the plaint eventually seeks a mandatory injunction. The scheme of law is clear when S.37(1) of the Specific Relief Act relates itself with the CPC R.K. Narang & others Vs. New Delhi Municipal Corporation & Ors 17 and is inlaw regulated by the Code of Civil Procedure, 1908 (5 of 1908 ). No such relation / regulation is mentioned under S.39 of the Specific Relief Act which deals with 'Mandatory Injunction'. Therefore the general impression would be that a positive / mandatory act cannot be sought under the provisions of Order XXXIX Rules 1 & 2 CPC. A further analysis of the law would reveal that, though the CPC only mentions of 'injunctions' in terms of 'restrain', there happens to be provision under Order XXXIX Rule 9 of the CPC which speaks of a positive (mandatory) act of giving immediate possession to a party who has an interest in the property and who pays revenue or rent due. Here we get a glimpse of what is known as 'interim mandatory injunction' in the English Law.
22. In one of the earliest cases in Rasul Karim v. Pirubhai Amirbhai - ILR (1914) 38 Bom 381, Beaman J. was of the view that the court's in India have no power to issue a temporary injunction in a mandatory form but Shah, J. who constituted a Bench in that case did not agree with Beaman, J. in this view. However, in a later Division Bench judgment in Champsey Bhimji & Co. v. The Jamna Flour Mills Co. Ltd. (1914) 16 Bom LR 566, two learned Judges of the Bombay High Court took a different view from Beaman, J. and this view is now the prevailing view in the Bombay High Court.
23. In M. Kandaswami Chetty v. P. Subramania Chetty - ILR (1918) 41 R.K. Narang & others Vs. New Delhi Municipal Corporation & Ors 18 Mad 208, a Division Bench of the Madras High Court held that court's in India have the power by virtue of Order XXXIX Rule 2 of the Code of Civil Procedure to issue temporary injunctions in a mandatory form and differed from Beaman J.'s view accepting the view in Champsey Bhimji & Co. v. Jamna Flour Mills Co. (supra).
24. In Israil v. Shamser Rahman ILR (1914) 41 Cal 436 it was held that the High Court was competent to issue an interim injunction in a mandatory form. It was further held in this case that in granting an interim injunction what the Court had to determine was whether there was a fair and substantial question to be decided as to what the rights of the parties were and whether the nature and difficulty of the questions was such that it was proper that the injunction should be granted until the time for deciding them should arrive. It was further held that the Court should consider as to where the balance of convenience lies and whether it is desirable that the status quo should be maintained. While accepting that it is not possible to say that in no circumstances will the Courts in India have any jurisdiction to issue an ad interim injunction of a mandatory character, in Nandan Pictures Ltd. v. Art. Pictures Ltd. and Ors. - AIR 1956 Cal 428, a Division Bench was of the view that if the mandatory injunction is granted at all on an interlocutory application it is granted only to restore the status quo and not granted to establish a new state of R.K. Narang & others Vs. New Delhi Municipal Corporation & Ors 19 things differing from the state which existed at the date when the suit was instituted.
25. The Hon'ble Supreme Court of India has applied the principles of interim mandatory injunctions. In Dorab Cawasji Warden vs. Coomi Sorab Warden and Ors.; (1990) 2 SCC 117 the Supreme Court observed that: "There could be no doubt that the courts can grant such interlocutory mandatory injunction in certain special circumstances."
26. We therefore see that in Dorab Cawasji Warden (supra) the Supreme Court reviewed the law of mandatory injunction in England and India and observed that the High Court was competent to issue an interim injunction in a mandatory form. While laying down the guidelines for the exercise of grant of a mandatory injunction it reiterated that the grant or refusal would ultimately rest in the sound judicial discretion of the Court to be exercised in the light of the facts and circumstances in each case. From the above, it is observed that the power to grant a mandatory injunction is available to the Court and that there is a general consensus of opinion on this legal point. Further, it is clear that where the case is one in which withholding a mandatory interlocutory injunction would be in fact carrying a greater risk of injustice than granting it, there cannot be any rational basis for withholding the injunction.
27. In (2006) 3 SCC 312 the Supreme Court again reiterated the age old R.K. Narang & others Vs. New Delhi Municipal Corporation & Ors 20 caution to be exercised by a court before passing an interim mandatory injunction.
"6. An interim mandatory injunction is not a remedy that is easily granted. It is an order that is passed only in circumstances which are clear and the prima facie materials clearly justify a finding that the status quo has been altered by one of the parties to the litigation and the interests of justice demanded that the status quo ante be restored by way of an interim mandatory injunction. Keeping this principle in mind, it is necessary to see whether in the case on hand, the Additional District Judge was justified in passing the interim order of injunction."
28. The Supreme Court quoted some of the English judgments with approval in the case of Dorab Cawasji Warden v. Coomi Sorab Warden & Others (1990) 2 SCC 117 and it will be sufficient to refer only to one such case namely Shepherd Homes Ltd. V. Sandham (1970) 3 All England Reporter in which it was said as under:
"(iii) On motion, as contrasted with the trial, the court was far more reluctant to grant a mandatory injunction; in a normal case the court must, inter alia, feel a high degree of assurance that at the trial it will appear that the injunction was rightly granted; and this was a higher standard than was required for a prohibitory injunction."
29. The relief of interlocutory mandatory injunctions are thus granted R.K. Narang & others Vs. New Delhi Municipal Corporation & Ors 21 generally to preserve or restore the status quo of the last noncontested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guidelines.
30. The guidelines are clearly laid down in the judgment rendered by the Division Bench of the Hon'ble Delhi High Court in the case AMIT SINHA versus SUMIT MITTAL & ORS FAO (OS) 570/2010 Date of decision: 3rd February, 2011 CORAM: HON'BLE MR. JUSTICE VIKRAMAJIT SEN HON'BLE MR. JUSTICE SIDDHARTH MRIDUL J. Generally stated these guidelines are:
(1) The plaintiffs has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction.
(2) It is necessary to prevent irreparable or serious injury which normally R.K. Narang & others Vs. New Delhi Municipal Corporation & Ors 22 cannot be compensated in terms of money.
(3) The balance of convenience is in favour of the one seeking such relief.
The Hon'ble DB further observed :
Being essentially an equitable relief the grant or refusal of an interlocutory mandatory injunction shall ultimately rest in the sound judicial discretion of the Court to be exercised in the light of the facts and circumstances in each case. Though the above guidelines are neither exhaustive or complete or absolute rules, and there may be exceptional circumstances needing action, applying them as prerequisite for the grant or refusal of such injunctions would be a sound exercise of a judicial discretion.
31. The defendant No.1 have stated in their reply that 173 chamber occupants have made the adhoc payments of Rs.25,000/ per chamber. One of the chamber holder Ms. Anjana Prabhakar has made the entire payment along with the interest at the rate of 8% per annum. Separate electricity meters have already been installed in number of chambers. It has been stated very categorically by the Defendant No.1 that the letter dated 29/07/2010 was issued after various demands were raised and after the detailed discussions were held. The present case was treated as a 'Special Case" where the authorities had considered a huge waiver of Rs. R.K. Narang & others Vs. New Delhi Municipal Corporation & Ors 23 2,58,89,002/ subject to the clearance of entire unpaid demand of Rs. 2,02,05.242/. The share of the individual chamber came to be to the tune of Rs.64,969/. An amount of Rs.25,000/ was asked as the adhoc payment at the time of the application for the electricity connection and the balance was to be paid in the due course of time. The said arrangement was the part of the arrangement as contained in the letters dated 14/09/2010 and 08/03/2011. It has also been stated by the Defendant No.1 that the electricity connection was not disconnected arbitrarily. The representation by the aggrieved chamberholders dated 26/06/2011 was received in the office of the defendant No.1 on 20/09/2011. Before any decision on the said representation could have been taken in consultations with the NDBA, the present suit was filed.
1. After hearing both the sides it is apparent that the defendants are still in the process of finalizing the scheme. Furthermore, there seems to be a substantial waiver by the authorities and many chamber owners have already availed the scheme by making the payments in lieu of the circular / letters dated 14/09/2010 and 08/03/2011. Prima facie I find force in the contentions / pleadings of the defendants No.1 & 2. As discussedherein above it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction.
R.K. Narang & others Vs. New Delhi Municipal Corporation & Ors 24
32.The application under Order XXXIX Rules 1 & 2 is accordingly dismissed. It is also needless to say that the disposal of the present application shall not have any bearing on the merits of the case. However, the present order shall not effect in any manner whatsoever the negotiations/ discussions between the authorities and the consumers. NDMC is a statutory agency working in the public interests and the lawyers are responsible segment of a society. It is expected that they reach a sustainable solution.
33. Put up for consideration on the application of the applicants u/o 1 rule 10 C.P.C for 15022012.
Announced in the open court on th this 24 day of December, 2011. (VEENA RANI) ARC/ACJ/CCJ/New Delhi R.K. Narang & others Vs. New Delhi Municipal Corporation & Ors