Delhi District Court
Sanjay Sharma vs Bses Rajdhani Power Limited on 18 March, 2023
IN THE COURT OF SENIOR CIVIL JUDGE-CUM-RENT
CONTROLLER, SOUTH-EAST DISTRICT, SAKET
COURTS, DELHI
Presided By : Ms. Deepti Devesh, DJS
RCA SCJ NO. 2/20
SANJAY SHARMA
S/O LATE V.K. SHARMA
R/O 193, SUKHDEV VIHAR,
(GROUND FLOOR BACK PORTION)
NEW DELHI-110025. ... Plaintiff/Appellant
Versus
1. BSES RAJDHANI POWER LIMITED
NEAR COMMUNITY CENTRE
NEW FRIENDS COLONY-110065.
2. MADHU ARORA
R/O 193, SUKHDEV VIHAR
(GROUND FLOOR FRONT PORTION)
NEW DELHI-110025.
3. VINAY VASUJA
R/O 193, SUKHDEV VIHAR
(GROUND FLOOR MIDDLE PORTION)
NEW DELHI-110025.
4. VINAY MAHAJAN
R/O 193, SUKHDEV VIHAR
(FIRST FLOOR BACK PORTION)
NEW DELHI-110025.
5. ABDUR NOOR
R/O 193, SUKHDEV VIHAR
(FIRST FLOOR FRONT PORTION)
NEW DELHI-110025. ... Defendants/Respondents
APPEAL AGAINST
JUDGMENT/DECREE DATED
21.12.2019
RCA SCJ 2/20 SANJAY SHARMA Vs. BSES AND ORS. Page no. 1 Of 13
DATE OF INSTITUTION: 12.02.2020
DATE OF ARGUMENTS: 12.01.2023
DATE OF ANNOUNCEMENT: 18.03.2023
JUDGMENT
Appellant's case:
1. Today matter is fixed for orders on present appeal filed against impugned judgment and decree dated 21.12.2019 of Ld. Trial Court in Civil Suit no. 901/18, titled as "Sanjay Sharma vs. BSES and Ors."
2. Briefly stated, the original civil suit was filed by the appellant/plaintiff seeking relief of mandatory injunction against the defendant/respondent BSES to shift electricity meters/panel installed at the backside of the suit property i.e. 193, Sukhdev Vihar, New Delhi-25 to the main gate of the suit property and mandatory injunction against the remaining defendants/respondents to grant No Objection Certificate in favour of the appellant/plaintiff for shifting of electricity meters.
It was claimed by the plaintiff/appellant that the suit property, with passage of time, has deteriorated in its construction, which has left the wall on which the electricity meters are presently installed unsound. It is claimed that on account of seepage in the said wall, there is constant threat of electrical shocks and fire accident in the suit property. It was further claimed that one of the servants of the plaintiff/appellant also suffered electrical shock due to unsafe electricity meters/panel at the suit property. It was further claimed that the present location of the electricity meters/panel at the suit property affects ingress and egress of the plaintiff/appellant as the same is installed just outside the house of the plaintiff/appellant on the ground floor of the suit RCA SCJ 2/20 SANJAY SHARMA Vs. BSES AND ORS. Page no. 2 Of 13 property. It was claimed that the plaintiff/appellant applied to defendant no.1/respondent no.1 BSES to shift the said electricity panel, but the same was not executed because of lack of NOC by the remaining defendants/respondents. Hence, the original civil suit was filed.
3. On the other hand, the respondent no.1/defendant no.1 BSES claimed before the Ld. Trial court that the appellant/plaintiff failed to provide NOC required from the other residents and that the electricity meters were installed at the correct place, which was meant for electricity panel at the time the said suit property was constructed. Furthermore, the remaining respondents/defendants also disputed the claim of the plaintiff/appellant before the Ld. Trial Court. It was claimed that plaintiff is not actually residing in the suit property, but is running a guest house in the suit property in the name of Creation Service Apartment, which is a security concern for the respondents/defendants, who are residents of the suit property. It was claimed that the real reason for the plaintiff to seek shifting of electricity meter is that the plaintiff wants to install a lift at the place where presently electricity meters are installed at the suit property. It was claimed that on account of suit property being old construction, the defendants/respondents did not agree to shifting of electricity meters or to installation of lift. It was further claimed that the construction of the suit property has deteriorated on account of illegal construction and commercial activities of the plaintiff/appellant and seepage in the wall where electricity panels are installed has occurred on account of terrace garden being maintained by the plaintiff/appellant.
RCA SCJ 2/20 SANJAY SHARMA Vs. BSES AND ORS. Page no. 3 Of 13
4. On the basis of pleadings of the parties, issues were framed by the Ld. Trial Court vide its order dated 23.05.2019.
5. Both the parties led evidence in respect of their respective claims before the Ld. Trial Court. The appellant/plaintiff examined himself as PW1 and one of his employees as PW-2. On the other hand, the respondent no.1/defendant no.1 BSES declined to lead any evidence, while the remaining defendants/respondents examined defendant no.3 and defendant no.4 as DW-1 and DW-2.
6. Thereafter, the Ld. Trial court after appreciating the evidence on record, decided both issue no.1 & 2 against the appellant/plaintiff and in favour of the defendants/respondents vide impugned judgment/decree dated 21.12.2019.
7. By way of present first appeal, the appellant/plaintiff has challenged the decision of Ld. Trial Court as given in impugned judgment/decree dated 21.12.2019. Briefly stated the grounds for challenging the impugned judgment/decree dated 21.12.2019 are as follows:
a) That the Ld. Trial court erroneously relied upon extraneous consideration of maintenance of the suit property.
b) That the Ld. Trial court failed to consider the difficulty faced by the plaintiff in egress and ingress from his property due to present location of electricity meters.
c) That the Ld. Trial court failed to appreciate the evidence given by the plaintiff with respect to steps taken for ensuring safety of electricity meters.
RCA SCJ 2/20 SANJAY SHARMA Vs. BSES AND ORS. Page no. 4 Of 13
d) That the Ld. Trial Court also failed to appreciate that shifting of electricity meters was itself suggested by respondent no.1/defendant no.1 BSES.
e) That the Ld. Trial Court failed to consider grant of NOC as a prerequisite to due consideration of shifting of the electricity meters in the suit property.
8. Written reply to the present appeal was filed by the respondents/defendants except respondent no.1/defendant no.1 BSES. The respondents/defendants no. 2 to 5 have claimed that the impugned judgment/decree dated 21.12.2019 has been passed after due application of mind by Ld. Trial Court and does not require any interference. It has been reiterated that the plaintiff wants to fulfill his ulterior motive of installing a lift in the suit property by shifting electricity meters to main gate of the suit property. In support, copies of certain communication between plaintiff/appellant and defendant no.4/respondent no.4 is also annexed with the reply.
9. Oral arguments have been advanced at length on behalf of both the parties.
10. Trial Court record was summoned. I have heard arguments and perused the record.
11. Perusal of the Ld. Trial court record shows that vide order dated 23.05.2019, three issues were framed as follows:
Issue no.1 Whether the plaintiff is
entitled to decree of a mandatory
injunction in favour of the plaintiff and
RCA SCJ 2/20 SANJAY SHARMA Vs. BSES AND ORS. Page no. 5 Of 13
against the defendant no.1 directing
defendant no.1 to move/shift/transfer the
electricity meters/panel installed at
backside of 193, Sukhdev Vihar, New
Delhi-110025? OPP.
Issue no.2. Whether the plaintiff is
entitled to decree of mandatory
injunction in favour of plaintiff and
against defendant no. 2 to 5 thereby
directing them to furnish NOC in favour
of plaintiff? OPP.
Issue no.3. Relief.
12. In order to prove his case, plaintiff/appellant examined himself as PW1 and mostly reiterated the contents of the plaint in his examination-in-chief. He also examined one employee as PW-2. He supported the claim of the plaintiff that the electricity meter at the suit property has become dangerous and he suffered electrical shock due to it. Both the plaintiff witnesses were duly cross-examined by all the defendants/respondents. Thereafter, defendant no.2 to 5/respondents examined defendant no. 3 and 4 as DW1 and DW2, who denied the case of the plaintiff. Both the said witnesses were duly cross-examined by the plaintiff.
13. Perusal of the impugned judgment/decree dated 21.12.2019 shows that issue no.1 & 2 have been decided against the plaintiff/appellant and in favour of the defendants/respondents, mainly for the reason that the plaintiff/appellant has not explored the alternative remedy of RCA SCJ 2/20 SANJAY SHARMA Vs. BSES AND ORS. Page no. 6 Of 13 taking suitable safety measures for the electricity meters installed at their present location in the suit property.
14. Both the issues shall be dealt jointly as they are connected and onus of proving both the issues was upon the plaintiff/appellant. For the issuesto be decided in favour of the plaintiff/appellant, he was required to establish that:-
a) the present status of electricity meters at the suit property has deteriorated on account of old construction, water seepage in walls, etc. that it is unsafe for residents of suit property including the plaintiff,
b) the condition has deteriorated to such an extent that the only remedy available is to shift the location of the electricity meters to the main gate of the suit property.
15. It is only when both of the above is established by the plaintiff/appellant, that he will be entitled to mandatory injunction for shifting of the electricity meters in the suit property. In the instant case, no evidence has been produced by the plaintiff/appellant before the Ld. Trial Court to establish that there is deterioration of the wall on which electricity meters are presently installed in the suit property. No evidence has been produced to show the year when the suit property was constructed. Although old construction of suit property is not disputed by the defendants no. 2 to 5/respondents also, but old construction in itself is not sufficient to establish deterioration of the wall where electricity meters are installed. Seepage in walls of the suit property is also admitted by DW1 and DW2 in their cross-examination, but they have claimed that seepage is due to RCA SCJ 2/20 SANJAY SHARMA Vs. BSES AND ORS. Page no. 7 Of 13 actions of plaintiff/appellant keeping a terrace garden. If this is to be believed, then obviously, the plaintiff/appellant cannot be allowed to take benefit of its own actions resulting in danger to all the residents of the suit property. The plaintiff/appellant himself has not produced any affirmative evidence to show what is the actual cause of seepage or that efforts have already been made to control seepage, but to no avail. No affirmative evidence has been produced by the plaintiff/appellant to show that there is actually any deterioration of the wall where electricity panel is installed. It has been vaguely claimed that there have been incidences of electricity shock, but only one such person has been examined in this regard. No evidence has been produced to show that there is a constant threat of such incidents in the suit property. No evidence has been produced to show that there are cracks in wall, or wiring of electricity meters has become exposed and thus, dangerous or earthing wire does not exist presently, or earthing wire has been damaged resulting in danger of electric shocks. Although plaintiff/appellant has claimed in his cross-examination that once there was an incident of fire also, but no date or time has been mentioned, no witness to this effect has been examined and infact, the evidence for this has been volunteered beyond the pleadings of the plaintiff/appellant. The plaintiff/appellant examined his employee to establish that there have been past incidents of electric shocks. However, the witness is unreliable because he is employee of plaintiff/appellant, and thus, under direct control of the plaintiff/appellant. He would be inclined to support the claim of his employer. Furthermore, no independent evidence of such electric shock has been produced such as record of any medical treatment, which could have RCA SCJ 2/20 SANJAY SHARMA Vs. BSES AND ORS. Page no. 8 Of 13 corroborated the claim of PW2 and made his evidence, credit- worthy.
16. It is also pertinent to note that the plaintiff/appellant has claimed in the present appeal that the Ld. Trial Court failed to consider that shifting of the electricity meters was suggested by defendant/respondent BSES itself. However, perusal of entire Trial Court record fails to reveal any such suggestion from defendant/respondent BSES on record. The plaintiff/appellant also chose not to summon any official form BSES, who had actually visited the suit property and thus, could depose if shifting of electricity meters is required or not. Furthermore, in the written statement of defendant/respondent BSES, it has been clearly stated that it was upon the plaintiff/appellant to fulfill all necessary requirements, before electricity meters could have been shifted. One such requirement is road-cutting permission. The plaintiff/appellant has nowhere pleaded that all the necessary requirements stood satisfied and despite that defendant/respondent BSES was not agreeable to shifting of electricity meters. No document of any road cutting permission has been filed by the plaintiff/appellant before Ld. Trial Court. Thus, even the necessary ingredients as stated by defendant/respondent BSES in its written statement, apart from the NOC of remaining defendants/respondents, has also not been complied with by the plaintiff/appellant.
17. It has been argued on behalf of the plaintiff/appellant that shifting of electricity meters from backside to main gate of the suit property is desirable also RCA SCJ 2/20 SANJAY SHARMA Vs. BSES AND ORS. Page no. 9 Of 13 because the main gate is wider than the backside of the suit property and thus, there is less likelihood of any person coming in direct physical contact with the electricity meters at the main gate, rather than the backside. As already noted above, it is admitted by all the parties that the construction of the suit property is an old construction. It is claimed by the defendants/respondents that the electricity meters are presently installed at the same place where they were supposed to be installed at the time the suit property was constructed. Same has not been denied or disputed by the plaintiff/appellant. If that is the case, then the width of the main gate has not increased over time, rather it has always been wider than the backside and it was a conscious decision taken at the time of completion of the suit property that electricity panels would be installed at the backside of the suit property. The photographs of the suit property, shown to the plaintiff/appellant and relied upon by the defendant/respondent no. 2 to 5 Ex. PW1/DX1(colly), clearly shows that the main gate of the suit property is perhaps also meant to be a driveway due to its width. Furthermore, the evidence of DW1 & DW2 appears to be a more reasonable and prudent view when they claim that shifting of electricity meters from backside to main gate would require cutting through some open portion of the suit property, perhaps for which road cutting permission is also mandated and a prerequisite as per defendant/respondent BSES. Thus, if the main gate is wide enough to be used as a driveway, then certainly physical contact with vehicles of the electricity meters cannot be ruled out. Furthermore, if shifting requires cutting through some open portion of the suit property, then it is likely to result in RCA SCJ 2/20 SANJAY SHARMA Vs. BSES AND ORS. Page no. 10 Of 13 hardships for the residents of the suit property and may also weaken the already old structure of the suit property. No expert witness has been produced by the plaintiff/appellant to show how the shifting could be actually done without requiring any construction work in the suit property or whether such construction work would be allowed under the applicable building bylaws or not.
18. It is not sufficient merely to claim that due to the backside of the suit property being narrow and just outside the house of the plaintiff on ground floor of the suit property, the electricity meters should be shifted. For the relief of injunction, which is an equitable relief, it is also required for the plaintiff/appellant to show that there is no alternative course available to him. It is admitted by all the parties that the suit property comprises not only of one backside entry/exit, but also the main gate for ingress and egress. It has nowhere been claimed by plaintiff/appellant that he does not have access to the main gate of the suit property or that the distance between his house in the suit property and the main gate is such that there is any difficulty in his access to the main gate from his house in the suit property. Thus, even if it is to be assumed that there is deterioration in the wall on which the electricity meters are installed, then also the plaintiff/appellant has an alternative route available for his ingress and egress in the suit property which is the main gate.
19. It is also pertinent to note here that carrying out of commercial activity from the address of the plaintiff/appellant in RCA SCJ 2/20 SANJAY SHARMA Vs. BSES AND ORS. Page no. 11 Of 13 the suit property also appears to be likely. The plaintiff in his cross examination has admitted that his name and phone number have been mentioned as contact details for Creative Service Apartments on several web pages. If plaintiff/appellant is not running any commercial activity from the suit property, then why his name and phone number are mentioned in contact details, is not explained by the plaintiff/appellant anywhere. If commercial activity by plaintiff/appellant in the suit property is probable, as claimed by the defendants/respondent no. 2 to 5, then it is also probable that the plaintiff/appellant is actually not residing in the suit property and has falsely stated so. This also dis-entitles the plaintiff/appellant from claiming any equitable relief of injunction.
20. The plaintiff/appellant has not produced any legal guidelines in the form of any rules, bylaws or regulations or case laws to show the parameters under which NOC from neighbours can be directed to be given. Without any such parameters in existence, NOC by neighbours for such purposes as shifting of electricity meters, appears to be dependent completely upon discretion of the said neighbours/residents. The defendant/respondent no. 2 to 5 are completely within their rights to refuse NOC for shifting of electricity meters to the plaintiff/appellant, even if it is assumed that there is no plausible reason for refusal. A private person cannot be directed by the court to exercise his discretion in a manner that is against his own volition, unless and until it is duly established that such discretion should not be permitted to the private person, in public interest, lest it results in some loss of life or liberty or RCA SCJ 2/20 SANJAY SHARMA Vs. BSES AND ORS. Page no. 12 Of 13 damage to property. No such circumstances have been established by the plaintiff/appellant for the court to take away discretion of defendants/respondent no. 2 to 5 in refusing NOC to the plaintiff/appellant. Refusal of NOC might seem unreasonable to the plaintiff/appellant, but without any evidence that such refusal is resulting in any loss to life and liberty or damage to property or that refusal is against public interest, the defendants/respondent no.2 to 5 are well within their rights to refuse NOC, being owners and occupiers of their respective portions in the suit property. Accordingly, both the issues have been correctly decided against the plaintiff/appellant and in favour of defendants/respondents by Ld. Trial Court. Same does not call for any interference.
Relief:
21. In view of the above discussion, in my considered opinion, there is no illegality or infirmity in the impugned judgment/decree dated 21.12.2019 and thus, the appeal is bound to fail. Hence, as a net result, the appeal is dismissed.
22. No order as to costs. Decree sheet be drawn accordingly.
23. File be consigned to record room after due compliance, if any. Trial court record be sent back with copy of the present judgment.
Announced in open Court (Deepti Devesh) today on 18.03.2023 Senior Civil Judge cum Rent Controller South-East, Saket Courts, New Delhi RCA SCJ 2/20 SANJAY SHARMA Vs. BSES AND ORS. Page no. 13 Of 13