Delhi District Court
Kuldip Singh vs Municipal Corporation Of Delhi on 14 February, 2013
In the Court of Dr. Rakesh Kumar : Additional Senior Civil
Judge of Central Delhi District at Tis Hazari Courts, Delhi
Suit No. 138/2011
Unique ID No : 02401C0292612011
In the matter of :
Kuldip Singh,
Son of late S. Iqbal Singh
Resident of A271, Derawal Nagar,
Delhi9 ......Plaintiff
V E R S U S
1. Municipal Corporation of Delhi,
through its Commissioner
Minto Road, New Delhi
2. The Executive Engineer ( Electrical)
Municipal Corporation of Delhi
City Zone, New Delhi
3. B.S.E.S. Yamuna Power Ltd.
Through its Chief Executive Officer,
Shaktri Kiran Building,
Karkardooma, Shahdhara,
Delhi110032 ......Defendants
Date of institution : 05.07.2011
Reserved for Judgment : 30.01.2013
Date of decision : 14.02.2013
CS No: 138/2011 Page 1/14
Suit for Mandatory Injunction and Permanent Injunction
J U D G M E N T
1. This is a suit for mandatory injunction and permanent injunction for directing the defendants, their officials, contractors, labourers etc. to remove the street light pole installed in front of the shop of the plaintiff bearing Municipal No. 2234, Rajguru Road, Chuna Mandi, Paharganj, New Delhi55 (hereinafter referred to as 'the suit shop') and also for directing the defendant no. 3 and their agents etc. to remove the electricity junction box fixed by the defendant no. 3 in front of the suit shop and not to do any sort of electrification through the said junction box to the street light poles in the said area concerned forthwith and also for consequential relief for restraining the defendants and their agents etc. from further installing and electrifying any sort of street light pole and the electricity junction box in front of the shop of the plaintiff and the property bearing no. 2232 (part) 2233 to 2237 (full), Rajguru Road, Chuna Mandi, Paharganj, New Delhi55 in any manner.
2. Facts are that the plaintiff is the owner of the property bearing Municipal no. 2232 (part) 2233 to 2237 (full), Rajguru Road, Chuna Mandi, Paharganj, New Delhi55 forming part of khasra no. 445446 and 447; that in the month of October, 2010 CS No: 138/2011 Page 2/14 private contractors working on behalf of the defendant no. 1 erected a cemented platform of about two feet high in front of the suit shop for the purpose of installing a street light pole; that the said act of erecting the cemented platform completely blocked the ingress and egress of the plaintiff out of the suit shop; that the defendant no. 3 also installed a junction box of high tension cables for connecting and providing electricity to the street light pole from the same in front of the suit shop, hence this suit.
3. The defendant no. 1 contested the present suit by filing a written statement of its defence wherein it took the preliminary objections to the effect that the suit of the plaintiff is barred under Section 477/478 of the DMC Act for want of service for statutory notice; that the suit of the plaintiff is also barred under section 478(2) of DMC Act, 1957; that the suit of the plaintiff is bad for nonjoinder of necessary parties.
4. In reply on merits, it is contended that the answering defendant no. 1 has installed street light including the pole etc. in question taking into consideration the benefit of the public at large as well as to give face lifting to the city and to provide riding quality of road, foot path, street scaping, street lights etc. and further to improve and upgrade the surrounding areas CS No: 138/2011 Page 3/14 of Hotels & Guest Houses at Paharganj & New Delhi Railway Station, which was also otherwise necessary as Delhi, the capital of India was going to host the Common Wealth Games, 2010 and the matter was finalized in consultation and meetings with the Chief Secretary of Delhi; that the old light fittings and overhead cables etc. in the area had been dismantled by the defendant no. 3 as per the directions from the higher authorities.
5. It is denied that the cement platform was erected in October, 2010, as alleged. It is also denied that erection of the street light pole has completely blocked the shop of the plaintiff. Other allegations of the plaint have been denied and disputed by the defendant and prayed for dismissal of suit.
6. The defendant no. 3 also contested the present suit by filing a written statement of its defence wherein it took the preliminary objections to the effect that the plaintiff has not come to this court with clean hands and has suppressed the true and material facts.
7. In reply on merits, it is contended that in the month of October, 2010, Municipal Corporation of Delhi has prepared a trench for converting overhead network into underground CS No: 138/2011 Page 4/14 network for beautification purpose in beautification scheme under Common Wealth Games, 2010; that the feeder pillar was installed by B.S.E.S in the middle of the property no. 22332234, Rajguru Road, Chuna Mandi, Pahargnaj, Delhi; that the feeder pillars were also installed on the both sides of Rajguru road, Main Bazar, Paharganj, Deshbandhu Gupta Road, Arakansha Road, Chita Gupta Road and Basant Road under beautification scheme of Common Wealth Games; that on all the roads, Municipal Corporation of Delhi has prepared a trench and B.S.E.S. converted the overhead network into underground network; that the said feeder pillar was installed in between 2233 & 2234 and not in front of any entry gate; that the same has been done on the Government land and the proper distance has been maintained as per rule; that there is no hindrance for ingress or egress of the suit shop. Other allegations of the plaint have been denied and disputed by the defendant and prayed for dismissal of suit.
8. The plaintiff filed separate replication to the written statements of defendant no. 1 and defendant no. 3 and denied all the contentions raised in the written statement and reiterated the allegations made in the plaint.
CS No: 138/2011 Page 5/149. From the pleadings of the parties, following issues were framed by learned Predecessor of this court on 09.09.2011 for trial, namely: 1 Whether the suit of the plaintiff is bad for want of notice under section 477/478 of DMC Act? OPD1 2 Whether the plaintiff is entitled for the relief of mandatory injunction?OPP.
3 Whether the plaintiff is entitled for the relief of permanent injunction ? OPP 4 Relief.
10. The plaintiff examined only one witness. PW1 is Kuldeep Singh, the plaintiff himself. During his evidence PW1 has produced the documents Ex. PW1/1 to PW1/7.
11. The defendant no. 1 examined only one witness. DW1 Arun Rathore, A.E. (Electrical) Municipal Corporation of Delhi, Sadar Pahar Ganj Zone, Asaf Ali Road, New Delhi.
12. The defendant no. 3 also examined only witness. D3W1 is Sanjay Sharma, Senior Manager (O&M), District Paharganj, B.S.E.S, Yamuna Power Ltd.
13. I have heard counsel for the parties and perused the material available on record.
CS No: 138/2011 Page 6/1414. My issue wise findings are as follows: Issue Nos. 2 and 3 Whether the plaintiff is entitled for the relief of mandatory injunction?
Whether the plaintiff is entitled for the relief of permanent injunction as claimed?
15. Onus qua issues no. 2 and 3 was placed on the plaintiff. These issues are taken together being interconnected.
16. In the present suit, the plaintiff is seeking relief of mandatory injunction and permanent injunction.
17. The general principles underlying the grant of perpetual injunction are whenever a right exists or is created by contract, by ownership of property or otherwise, cognizable by law, an injunction will be issued to protect a violation of that right and the restraining power of the court extends through the whole range of rights and duties recognized by law and would be applied to every case of intended violation unless there are other reasons of policy or expediency which control and limit its exercise. So, for obtaining an injunction the plaintiff has to prove an existing legal right in her favour.
CS No: 138/2011 Page 7/1418. The principles underlying mandatory injunction are the same as those underlying perpetual injunction. Two things have to be considered by the court before it proceeds to grant of mandatory injunction, (i) what acts are necessary to be done in order to prevent the breach of an obligation, and (ii) the requisite acts must be such as the court is capable of enforcing.
19. Section 2(a) of the Specific Relief Act, 1963 defines the term obligation which says, "obligation" includes every duty enforceable by law". It includes every duty enforceable by law so that when the legal duty is imposed on the person in respect to another that the other is invested with corresponding legal rights.
20. To prove his case, it is stated by PW1 Kuldip Singh in his affidavit that the plaintiff is the owner of the property bearing Municipal no. 2232 (part) 2233 to 2237 (full), Rajguru Road, Chuna Mandi, Paharganj, New Delhi55 forming part of khasra no. 445446 and 447. It is further stated that in the month of October, 2010 private contractors working on behalf of the defendant no. 1 erected a cemented platform of about two feet high in front of the shop of the plaintiff bearing municipal no. 2234, Rajguru Road, Chuna Mandi, Paharganj, New Delh55 CS No: 138/2011 Page 8/14 for the purpose of installing a street light pole. It is further stated that the said act of erecting the cemented platform completely blocked the ingress and egress of the plaintiff out of the shop belonging to the plaintiff. It is further stated that the defendant no. 3 also installed a junction box of high tension cables for connecting and providing electricity to the street light pole from the same in front of the shop of the plaintiff.
21. To disprove the case of the plaintiff, it is stated by DW1 Arun Rathore, A.E., (Electrical), Municipal Corporation of Delhi in his affidavit that work for providing street lights in the surrounding area of Pahar Ganj and New Delhi Railway Station was awarded in July, 2010 with completion time four months as the Common Wealth Games were scheduled for in October, 2010. It is further stated that the old light fittings and overhead cables etc. in the area had been dismantled by the defendant no. 3 i.e. B.S.E.S Yamuna Power Ltd as per the directions from the higher authorities. It is further stated that the pole in question has been installed taking into consideration the required gap for erection of the street light pole. It is further stated that work was carried out in the public interest and with the consent of the residents of the local area and even otherwise no other alternate site was available to the defendant no.1.
CS No: 138/2011 Page 9/1422. It is stated by D3W1, Senior Manager (O & M), District Paharganj, B.S.E.S, Yamuna Power Ltd. Delhi in his affidavit that in the month of October, 2010, Municipal Corporation of Delhi has prepared a trench for converting overhead network into underground network for beautification purpose in beautification scheme under Common Wealth Games, 2010. It is further stated that the feeder pillar was installed by B.S.E.S in the middle of the property no. 22332234, Rajguru Road, Chuna Mandi, Pahargnaj, Delhi. It is further stated that the feeder pillars were also installed on the both sides of Rajguru road, Main Bazar, Paharganj, Deshbandhu Gupta Road, Arakansha Road, Chita Gupta Road and Basant Road under beautification scheme of Common Wealth Games. It is further stated that on all the roads, Municipal Corporation of Delhi has prepared a trench and B.S.E.S. converted the overhead network into underground network. It is further stated that the said feeder pillar was installed in between 2233 & 2234 and not in front of any entry gate. It is further stated that the same has been done on the government land and the proper distance has been maintained as per rule.
23. In the cross examination, PW1 Kuldeep Singh made the following deposition: "It is correct that cemented platform and pole has been installed on government land......This disputed pole was CS No: 138/2011 Page 10/14 installed after 4 months of filing of the present suit around March, 2011......It is correct that the electricity pole has been installed for the benefit of common citizens.....I have no objection if the pole is transferred to the right side of the shop shown as R. K. Enterprises in Ex. PW1/6.....It is correct that I have filed an eviction petition against R. K. Enterprises which is pending for last 5 years. It is incorrect to suggest that I have suggested the shifting of pole towards the right side of R.K. Enterprises because I wanted to vacate the said premises from the tenant. I am using the premises 2234 for keeping my articles. In a month I used this premises 5 times....."
24. In the light of evidence of the parties, it is admitted by the plaintiff in his crossexamination that the cemented platform and pole has been installed on the government land. It is also admitted by the plaintiff in his crossexamination that the electricity pole has been installed for the benefit of common citizens.
25. In the present case, the plaintiff has failed to plead or prove that the directions to the defendants to remove the street light pole installed in front of the suit shop are necessary to be done in order to prevent the breach of an obligation and the requisite acts must be such as the court is capable of enforcing. The plaintiff has also failed to plead or prove any duty enforceable by law cast upon the defendants in respect of the plaintiff and that the plaintiff is invested with corresponding legal rights.
CS No: 138/2011 Page 11/1426. By way of a civil suit, the plaintiff can seek relief against the defendant either for his tortuous act or on the basis of breach of contract or on breach of trust or on breach of any other statutory right. The act complained of by the plaintiff is neither any tortuous act of the defendant nor it is a breach of contract nor breach of trust and also it is not breach of any statutory right existing in favour of the plaintiff. The plaintiff has failed to prove any legal basis to claim right against the defendants and to file suit against them.
27. Further, in the present suit the plaintiff is seeking judicial review of administrative action of the defendants no. 1 to 3. Judicial review of administrative action means review by courts of administrative actions with a view to ensuring their legality. An administrative action is legal if it is according to law, within the powers given to the authority by law, and in conformity with the principles of natural justice where such principles are applicable. Review is different from appeal. In appeal, an appellate authority can go into the merits of the decision appealed against whereas in judicial review, the court does not go into the merits of an administrative action but has to ensure that such an authority does not act in excess of its power. The court is not supposed to substitute its decision for that of the administrative authority. It undertakes scrutiny of CS No: 138/2011 Page 12/14 administrative action on the touchstone of the doctrine of ultra vires. Administrative authorities are given powers by statues and those powers have to be exercised within the limits drawn upon them by the statues. As long as an authority acts within sense that such an authority is said to have the liberty to act rightly as well as wrongly. The plaintiff has not pleaded any ground on which judicial review of administrative action of the defendants no. 1 to 3 can be done. The plaintiff has also not pleaded and sought judicial review of administrative action of the defendants no. 1 to 3 on the ground of ultra vires. In these circumstances, in absence of any ground of judicial review of administrative action to be established by the plaintiff, he is not entitled to judicial review of the action of the defendants no. 1 to 3.
28. For the reasons aforestated, these issues are decided in favour of the defendants and against the plaintiff.
Issue No. 1Whether the suit of the plaintiff is bad for want of notice under section 477/478 of DMC Act?
29. Onus qua this issue was placed on the defendant/MCD. The defendant no. 1 MCD examined one witness i.e. DW1 Arun Rathore, AE (Electrical) but the said witness has not stated anything in his affidavit Ex.D1 to prove this issue.
CS No: 138/2011 Page 13/14Nothing has come out in the cross examination of PW1 which otherwise proves this issue. Hence, this issue remained unproved.
Relief
30. In view of my findings on issues no. 2 and 3, the suit of the plaintiff is dismissed. There shall be no order as to costs as the defendants did not prove their issue. Decree sheet be prepared accordingly.
Announced in the Open Court on 14.02.2013 (Dr. Rakesh Kumar) Additional Senior Civil Judge Central District: Tis Hazari Courts: Delhi CS No: 138/2011 Page 14/14