Delhi District Court
Suit No:52/12 vs New Delhi Municipal Council on 11 December, 2012
1
IN THE COURT OF Ms. VEENA RANI, COMMERCIAL CIVIL
JUDGE, PATIALA HOUSE COURTS, NEW DELHI
Suit No:52/12
Sh. Pradeep Kumar & others .....Plaintiffs
Versus
New Delhi Municipal Council .....Defendant
ORDER
1. Vide this order I shall dispose off the application of the plaintiff u/o 39 rule 1&2 CPC by way of which plaintiff seeks an adinterim injunction in his favour seeking to restrain the defendants from encroaching in the building i.e. Chaudhary Building situated on plot No:
2, K Block, Connaught Place, New Delhi or from raising any pillar of constructing any drainage or server line in the said premises of the plaintiff till the final disposal of the suit. Briefly stated the facts for the disposal of this application are as under:
2. It is stated by the plaintiffs that they are the successors and legal heirs of Sh. Suraj Singh, Sh. Rishi Suit No:52/12, Pradeep Kumar & Ors Vs. N.D.M.C 2 Kumar and Sh. Ram Nath and have acquired the Lease hold rights in Chaudhary Building situated on plot No:2, K Block, Connaught Place, New Delhi and are in possession of the said building and land underneath.
3. It is averred that vide letter No:EE(CP)Project/D/450/2011 dated 2772011, the EE(CP) Project Civil, informed the coowner of the Choudhary Building, that they propose to install some pillars and lay down Sewerage and Drainage line in the court yard/Common Areas of the Building that Chaudhary Building situated on plot No:2, K Block, Connaught Place, New Delhi (hereinafter to be mentioned as suit property). It is also mentioned in the said letter that they are also interested to replace the cables, sewerage and drainage line etc. Copy of the letter is annexed as annexure "A". It is stated that no cables, sewerage or drainage line or pillars is in existence or are installed in the court yard of common area of the suit property and the said court yard or alleged common area is owned and is in use and occupation of the plaintiffs. It is submitted that reply/letter dated 2382011 was also sent to the EE(CP) Project Civil by the plaintiffs but no Suit No:52/12, Pradeep Kumar & Ors Vs. N.D.M.C 3 response was received from the EE(CP) Project Civil. Copy of the letter is annexed as annexure "B". Again a letter dated 1872012 is stated to have sent to the EE(CP) by the plaintiffs which is annexed as "C" but even after the issuing of above letter no reply has been received from the EE(CP).
4. It is submitted by the plaintiffs that defendant has no right to encroach upon the building of the plaintiffs and have no right to install any pillar or lay down any cable, sewerage or drainage line etc in the suit property. It is further stated that on 9112012, some persons claiming to be the officials of the defendant came to the suit property and threatened to dig a trench in the court yard but they could not succeed in their act due to the timely intervention by the representatives of the plaintiff and said persons left the suit premises but have threatened to come back again.
5. It is stated that action of the defendant amount to encroachment on the fundamental right of the plaintiffs to possess, occupy and enjoy their building without any interference from any body including the defendant. It is averred that threatened act of the defendant is illegal, Suit No:52/12, Pradeep Kumar & Ors Vs. N.D.M.C 4 unconstitutional and will amount to depriving the plaintiffs of a part of the premises owned by them. Hence, the present suit.
6. Defendant filed their written statement and raised preliminary objections that no notice u/s 385 NDMC Act or Section 80 CPC has been served by the plaintiff on the NDMC and suit was filed even without seeking permission u/s 80(2) of the COC, thus the suit is liable to be dismissed on this ground. Defendant further raised preliminary objections that plaintiffs have not approached the court with clean hands and suppressed the material facts. It is stated that NDMC is licensed to distribute and transmit electricity in the area which fall within its jurisdiction. It is stated that NDMC is redeveloping Connaught Place area which includes revamping and augmentation of public utilities including electrical works and apart from the above, facade of the building is also being restored as Connaught Place is heritage precincts and work is being done to meet a common objective of beautification of Connaught Place. It is submitted that NDMC proposed to install feeder pillars in the Courtyard of the aforesaid premises in terms of Delhi Electricity Suit No:52/12, Pradeep Kumar & Ors Vs. N.D.M.C 5 Supply Code & performance Standard regulations and NDMC has already installed total 120 nos feeder pillars at Court yard out of 157 numbers feeder pillars and more than 80% work of installation work has been completed by the NDMC in the area. It is stated that the instant project is for public benefit and larger public interest should prevail over any individual interest, if any. It is submitted that one feeder pillar requires only 12 square feet area therefore, for the present premises as the NDMC has to install four feeder pillars, NDMC requires only 48 square feet area, whereas the available free space at the said Court Yard is more than 3500 square feet. It is further stated that cables for electric supplies, sewerage or drainage line or in existence and are passing through the Court Yard/common area of the building. It is stated that the requirement and location of feeder pillars are determined by the density of consumers and consumption of load in a particular location/property and at present four feeder pillars are required to be installed for the load of the said building. It is submitted that Court Yard in the area of Connaught Place were left out for providing better basic amenities/services of electricity, drainage, Suit No:52/12, Pradeep Kumar & Ors Vs. N.D.M.C 6 sewer, communication etc. to the occupants of area. It is further stated that property owner/occupant/consumer were requested to cooperate with the officials of NDMC and their representatives to facilitate them to install new feeder pillars and lay cables in the Court Yard in order to ensure a better services to the consumers. It is stated that most care shall be taken to minimize inconvenience that may be caused to the property/owner/consumers. It is submitted that there is no prima facie case in favour of the plaintiffs, balance of convenience also not lies in favour of the plaintiffs. It is denied by defendant that plaintiffs shall suffer irreparable loss and injury. It is stated that there is no cause of action in favour of the plaintiff, therefore, the suit of the plaintiff is liable to be dismissed with costs.
7. I have heard and considered the arguments advanced by the ld. Counsel for the parties and carefully perused the material on record.
8. Grant of temporary injunction is governed by three basic principles i.e. prima facie case, balance of convenience and irreparable injury, which are required to be considered in proper perspective under the facts and Suit No:52/12, Pradeep Kumar & Ors Vs. N.D.M.C 7 circumstances of each case and no straitjacket formula can be laid down. Court has to assess the pleadings of the parties and the documents placed on record to find out if the ingredients/principles governing the grant of temporary injunction are made out or not.
9. Prima Facie Case:
The present suit for permanent injunction arises from the letter dated 27.07.2011 wherein it was intimated to the plaintiveherein that the NDMC is undertaking revamping of the public utilities including the electrical works in the area of Connaught Place. As per the approval scheme it was necessary to install the electrical distribution feeder pillars in the suit premises. It was also intimated that the NDMC would also lay down the public service utilities such as sewerage, drainage in the courtyard of the suit premises.
10. The perpetual Lease Deed apparently names one Sh. L. Radhey Lal, Lall Katra, Egerton road Delhi. The paragraphs No. 3 & 4 seem to out the chain from Late Sh. Suraj Singh & Sh. Rishi Kumar and the Karta of the Chaudhary HUF. However, the lease deed in not in favour of any HUF and nothing has been placed on record to Suit No:52/12, Pradeep Kumar & Ors Vs. N.D.M.C 8 establish as to how the rights of the plaintiveherein flow from Sh. L. Radhey Lal.
11. The plaintiveherein are threatened by the scheme of the NDMC inasmuch that the NDMC has not specified the exact 'nature' and 'location' of the proposed installation. It is also mentioned in the plaint that there is no common area in the control of the plaintive. The plaintive are stated to further threatened by the 'trespass' in to the building known as 'Chaudhary Building'. These apprehensions were conveyed by the plaintive in their letter dated 23.08.2011 (Annexure B). When no reply was received from the NDMC, the plaintiveherein sent another letter dated 18.07.2012, this time through Advocate Miss k. Kiran (Annexure C) which raised the issues relating to the 'privacy' and the 'use' of the private property i.e. Chaudhary Building.
12. As per the plaint (paragraph No.10) the very basis of the letter dated 27.07.2011 (AnnexureA) is stated to be misconceived which 'asserts' that the NDMC wants to 'replace' the pillar, cable , sewer etc. According to the plaintive no pillar, cable, sewer preexits so there arises no question of 'replacing' them. This aspect (raised by the Suit No:52/12, Pradeep Kumar & Ors Vs. N.D.M.C 9 plaintive) seems erroneous because the plain reading of the said notice reveals that the NDMC is undertaking revamping of the public utilities including the electrical works in the area of Connaught Place. As per the approval scheme it was necessary to 'install' the electrical distribution feeder pillars in the suit premises. It was also intimated that the NDMC would also lay down the public service utilities such as sewerage, drainage in the courtyard of the suit premises.
The NDMC is licensed to distribute and transmit electricity in the areas which fall within its jurisdiction. NDMC is redeveloping Connaught Place area which includes revamping and augmentation of public utilities including electrical works.
13. The expression "prima facie" means at the first sight or on the first appearance or on the face of it, or so far as it can be judged from the first disclosure. Prima facie case means that evidence brought on record would reasonably allow the conclusion that the plaintiff seeks. The prima facie case would mean that a case which has proceeded upon sufficient proof to that stage where it would support finding if evidence to contrary is disregarded. [see Black's Suit No:52/12, Pradeep Kumar & Ors Vs. N.D.M.C 10 Law Dictionary]". The Supreme Court in Marin Burn Ltd. v. R.N. Banerjee 1958I L.L.J. 247 held that 'A prima facie case does not mean a case proved to the hilt but a case which can be said to be established if the evidence which is led in support of the same were believed. While determining whether a prima facie case had been made out, the relevant consideration is whether on the evidence led it was possible to arrive at the conclusion in question and as to whether that was the only conclusion which could be arrived at on that evidence.' In Gujarat Electricity Board, Gandhinagar v. Maheshkumar and Co., Ahmedabad (1995(5) SCC 545,) wherein it was held that "Prima facie case" means that the Court should be satisfied that there is a serious question to be tried at the hearing, and there is a probability of Plaintiff obtaining the relief at the conclusion of the trial on the basis of the material placed before the Court. "Prima facie case" is a substantial question raised bona fide which needs investigation and a decision on merits. The Court, at the initial stage, cannot insist upon a full proof case warranting an eventual decree. If a fair question is raised for determination, it should be taken that a prima facie Suit No:52/12, Pradeep Kumar & Ors Vs. N.D.M.C 11 case is established. The real thing to be seen is that the Plaintiff‟s claim is not frivolous or vexatious.''
14. Interim order is passed as a temporary arrangement to preserve the status quo till the matter is decided finally, to ensure that the matter does not become either infructuous or a fate accompli before the final hearing. The purpose of an interlocutory injunction is, to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty was resolved in his favour at the trial.
15. The NDMC has stated in its reply that the four feeder pillars (each taking a space of about 12 sq, yard) around are very much required for the electricity distribution. The NDFMC would require only 48 sq. feet of the space which is around 3,5000 sq. feet. The property of the plaintive is not the only property targeted by the NDMC. The NDMC improvement scheme is a general scheme aimed at a larger 'public interest'.
16. In the present case the plaintive have not been able to prima facie establish their case. The apprehensions relating to 'privacy' and 'trespassing' seems unfounded.
Suit No:52/12, Pradeep Kumar & Ors Vs. N.D.M.C 12
17. Balance Of Convenience:
It is where there is doubt as to the adequacy of the respective remedies in damages available to either party or to both, that the question of balance of convenience arises. In Bikash Chandra Deb vs Vijaya Minerals Pvt. Ltd.: 2005 (1) CHN 582, the Hon'ble Calcutta High Court observed that issue of balance of convenience, it is to be noted that the Court shall lean in favour of introduction of the concept of balance of convenience, but does not mean and imply that the balance would be on one side and not in favour of the other. There must be proper balance between the parties and the balance cannot be an onesided affair.
18. In Antaryami Dalabehera vs Bishnu Charan Dalabehera: 2002 I OLR 531, as this point, it was held that balance of convenience, which means, comparative mischief for inconvenience to the parties. The inconvenience to the petitioner if temporary Injunction is refused would be balanced and compared with that of the opposite party, if it is granted. In the case of Orissa State Commercial Transport Corporation Ltd. v. Satyanarayan Singh, (1974) 40 Cut LT 336, observed: 'Balance of Suit No:52/12, Pradeep Kumar & Ors Vs. N.D.M.C 13 convenience' means the comparative mischief or inconvenience to the parties. The inconvenience to the plaintiff if temporary injunction is refused would be balanced and compared with that to the defendant if it is grants ed If the scale of inconvenience leans to the side of the plaintiff, then alone interlocutory injunction should be granted." In Anwar Elahi vs Vinod Misra And Anr. 1995 IVAD Delhi 576, 60 (1995) DLT 752, 1995 (35) DRJ 341 it was held that ' Balance of convenience means that comparative mischief or inconvenience which is likely to issue from withholding the injunction will be greater than that which is likely to arise from granting it. In applying this principle, the Court has to weigh the amount of substantial mischief that is likely to be done to the applicant if the injunction is refused and compare it with that which is likely to be caused to the other side if the injunction is granted.'
19. The NDMC has stated in the WS that the CP area has been declared as 'Heritage Precincts' therefore no further constructions can be raised by the Chaudhary Properties except otherwise allowed by the law. It has also been stated that the NDMC relates to the interest of Suit No:52/12, Pradeep Kumar & Ors Vs. N.D.M.C 14 the public at large. A mention is madeherein to the principle of "Salus Populi Est Suprema Lex" (Regard for public welfare is the highest law) which has been reinforced in many cases. The principle is that the adjudication on a factual situation by strict application of law would maximise public welfare. Overriding concerns to public interest militate against grant of any injunction to the plaintiff. It has been authoritatively held in a catena of authoritative and binding judicial precedents that wider public interest is liable to be borne in mind while exercising the power of issuing a prohibitory order and granting a stay and injunction.
20. In (1997) 1 SCC 134 entitled Ramniklal N. Bhutta and another vs. State of Maharashtra and others, it was held that the courts should keep the larger public interest in mind while exercising their power of granting stay/injunction. It will be exercised only in furtherance of interests of justice and not merely on the making out of a legal point. Even in a civil suit, granting of injunction or other similar orders, more particularly of an interlocutory nature is equally discretionary. The courts have to weigh the public interest visavis the private interest.
Suit No:52/12, Pradeep Kumar & Ors Vs. N.D.M.C 15
21. The concerns raised by the plaintive do seems to tilt the balance of convenience in their favour. There seems to be real danger to the property of the plaintive which essentially consists of shop etc. Rather the erecting of the feeder pillar would serve them better. The 'privacy' concern raised by the plaintive does not impress.
22. In Assistant Collector of Central Excise, Chandan Nagar, West Bengal v. Dunlop India Ltd. and Ors., MANU/SC/0169/1984 : 1985ECR4(SC) that an interim order should not be granted without considering balance of convenience, the public interest involved and the financial impact of an interim order. Similarly, in Ramniklal N. Bhutta and Anr. v. State of Maharashtra and Ors., MANU/SC/0279/1997 : AIR1997SC1236 , it was held that while granting a Stay the court should arrive at a proper balancing of competing interests and grant a Stay only when there is an overwhelming public interest in granting it, as against the public detriment which may be caused by granting a Stay. Therefore, in granting an Injunction or Stay order against the award of a contract by the Government or a Government agency, the court has to satisfy itself that the public interest in holding up Suit No:52/12, Pradeep Kumar & Ors Vs. N.D.M.C 16 the project far outweighs the public interest in carrying it out within a reasonable time. The court must also take into account the cost involved in staying the project and whether the public would stand to benefit by incurring such cost.
In the present case the plaintiff has utterly failed to show how the balance of convenience lies in their favour.
23. Irreparable Loss:
In the case of Orissa State Commercial Transport Corporation Ltd. v. Satyanarayan Singh, (1974) 40 Cut LT 336, observed: 'Irreparable injury' means such injury which cannot be adequately remedied by damages. The remedy by damages would be inadequate if the compensation ultimately payable to the plaintiff in case of success in the suit would not place him in the position in which he was before injunction was refused. The Supreme Court in Hindustan Petroleum Corporation v. Shrinarayan and Ors., (2002) 5 SCC 760, has held with regard to grant of interlocutory injunction which can also be applied with regard to grant of permanent injunction. It is specifically clear from the above principle that with Suit No:52/12, Pradeep Kumar & Ors Vs. N.D.M.C 17 regard to grant of permanent injunction the Court has to see that whether plaintiff has a legal right asserted by him in his favour or by violation of his right he would suffer irreparable injury.
24. In Gujarat Bottling Co. Ltd. vs. Coca Cola Company and Others, 1995(5) SCC 545, the Hon‟ble Supreme Court, inter alia, observed as under: "The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection has, however, to be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The court must weigh one need against another and determine where the „balance of convenience‟ lies."
25. In Colgate Palmolive (India) Ltd. vs. Hindustan Lever Ltd., AIR 1999 SC 3105, The Apex Court crystallized the conditions which ought to weigh with the court hearing the application or petition for the grant of Suit No:52/12, Pradeep Kumar & Ors Vs. N.D.M.C 18 injunctions as below: "(i) Extent of damages being an adequate remedy; (ii) Protect the plaintiff's interest for violation of his rights though however having regard to the injury that may be suffered by the defendants by reason therefor ; (iii) The court while dealing with the matter ought not to ignore the factum of strength of one party's case being stronger than the others; (iv) No fixed rules or notions ought to be had in the matter of grant of injunction but on the facts and circumstances of each case the relief being kept flexible; (v) The issue is to be looked from the point of view as to whether on refusal of the injunction the plaintiff would suffer irreparable loss and injury keeping in view the strength of the parties' case; (vi) Balance of convenience or inconvenience ought to be considered as an important requirement even if there is a serious question or prima facie case in support of the grant; (vii) Whether the grant or refusal of injunction will adversely affect the interest of general public which can or cannot be compensated otherwise."
Suit No:52/12, Pradeep Kumar & Ors Vs. N.D.M.C 19
26. In the present case the entire plaint does not bring out the 'irreparable loss' due to the work of the NDMC. After the NDMC is not about to take over the entire property. All that the NDMC needs is about 48 sq. feet (from the total area of 3,500/ sq. feet). It has been also stated by the NDMC that 80% of their work is complete. The injury caused to a plaintiff must be of a nature where law can come to the rescue. If a defendant dispossesses the plaintiff through legal means then it cannot be said that the plaintiff has suffered an irreparable loss in terms of Order 39 Rules 1 & 2 CPC. In the present case the plaintiff has not been able establish any legal injury.
The Plaintiveherein have also utterly failed to establish any irreparable loss.
27. In „Dalpat Kumar & Anr. Vs. Prahlad Singh & Ors., AIR 1993 SC 276', the Supreme Court explained the scope of aforesaid material circumstances, but observed as under: "The phrases 'prima facie case', 'balance of convenience' and ' irreparable loss' are not rhetoric phrases for incantation, but words of width and elasticity, to meet myriad situations presented by man's Suit No:52/12, Pradeep Kumar & Ors Vs. N.D.M.C 20 ingenuity in given facts and circumstances, but always is hedged with sound exercise of judicial discretion to meet the ends of justice. The facts rest eloquent and speak for themselves. It is well nigh impossible to find from facts prima facie case and balance of convenience."
28. In view of the facts and circumstances of the case the application under O.39 Rules 1 & 2 is dismissed. However, the present order shall not influence the merits of the case.
29. Put up for documents, A/D and issues on 16012013.
Announced in the open court on this 11th day of December, 2012.
(VEENA RANI) COMMERCIAL CIVIL JUDGE, NEW DELHI Suit No:52/12, Pradeep Kumar & Ors Vs. N.D.M.C