Delhi District Court
This Order Shall Decide The Application ... vs . on 6 June, 2014
IN THE COURT OF MS. ANJANI MAHAJAN, CIVIL JUDGE10
(CENTRAL), TIS HAZARI COURTS, DELHI
SUIT NO. 112/14
Sh. Mukhtar Ahmed & Anr.
Vs.
The Administrative Officer Factory Licensing Department North
DMC & Anr.
ORDER:
1. This order shall decide the application of the plaintiffs under order 39 rules 1 and 2 CPC seeking ad interim injunction against the defendants for restoration of electricity supply of the premises no. 3404 and 3407, Main Road, Bara Hindu Rao, Delhi during the pendency of the suit.
2. The plaintiffs have filed the present suit for declaration, permanent and mandatory injunction contending that they are running the light paper cutting machine of 1 Horse Power from the premises no. 3407 and 3404 Bara Hindu Rao, Delhi in the name and style of Roshan Cutting and Roshan Enterprises respectively. The plaintiffs contend that they are consumers of electricity from the defendant no. 2, the electricity being provided through meter CA no. 100379426 at premises no. 3404 and through meter CA no. 100505348 at Suit No. 112/14 Sh. Mukhtar Amhed & Anr.
Vs. The Administrative Officer Factory Licensing Department Nort DMC & Anr. 1/12 premises no. 3407. It is the plaintiffs' case that the sanctioned load of 2KV has been given in both the connections and the plaintiffs had been regularly paying the electricity bills upto date for the amounts raised by the defendant no. 2 and the last bill was paid in the month of April 2014. The plaintiffs contend that in the absence of electricity they run the machine by hand. The plaintiffs' further allegation is that the defendant no. 1 has issued a letter dated 07.02.2014 in regard to the above premises mentioning the power load to be 5 KV. It is stated that no factory or high power consumption machine is running from the above said premises.
3. The plaintiffs further state that they have deposited the conversion charges to the North MCD against the property no. 3404 and 3407 on 25.04.2014 for a sum of Rs. 46506/ each for the period 200613. Further, the plaintiffs have also deposited the conversion charges of Rs. 2304/ each for the period 201314 on 06.05.2014 in terms of the renewal of the ad hoc license of the said premises. The defendant no. 1 had issued ad hoc licenses in favour of the plaintiffs for the property no. 3404 and 3407 and the plaintiffs were running the business on the basis of the license allotted to them by the defendant no. 1 and they were paying the electricity charges regularly as per consumption. The plaintiffs aver that the connected load has been exaggerated by the defendant no. 1 in order to harass and intimidate the Suit No. 112/14 Sh. Mukhtar Amhed & Anr.
Vs. The Administrative Officer Factory Licensing Department Nort DMC & Anr. 2/12 plaintiffs who were consuming only the sanctioned load. Further, the matter in regard to the properties was subjudice and a stay order had been passed on 31.05.97 by the court of the Ld. Civil Judge. The plaintiffs got issued a legal notice dated 12.05.2014 issued to the defendants requesting the defendants not to take any action against the plaintiffs and their shops. The plaintiffs contend that the impugned letter dated 07.02.2014 mentioning 5 KV was illegal, malafide and arbitrary and the plaintiffs were poor persons and the said shops were the basis of livelihood for their entire family.
4. The plaintiffs allege that on 12.05.2014 and 16.05.2014 officials of defendant no. 2 visited the properties in question to disconnect the electricity connection but could not succeed due to resistance of the plaintiffs however on 19.05.2014 the officials of defendant no. 2 visited the said premises and disconnected the electricity connection without there being any fault on the part of the plaintiffs. The plaintiffs have thus sought a declaration that the impugned letter dated 07.02.2014 is illegal, mandatory injunction for restoration of electricity supply at the premises no. 3404 and 3407 and permanent injunction directing the defendants not to disturb the smooth functioning of the work being carried out by the plaintiffs at the premises no. 3404 and 3407.
5. The defendants 1 and 2 have filed their separate written statements.
Suit No. 112/14 Sh. Mukhtar Amhed & Anr.
Vs.
The Administrative Officer Factory Licensing Department Nort DMC & Anr. 3/12 The defendant no. 1 has not filed the reply to the present application but the counsel for the defendant no. 1 orally argued on the application and relied on the contentions raised in the written statement. The defendant no. 2 has filed the reply to the application. Both the defendants have vehemently opposed the plaintiffs' application for restoration of electricity supply.
6. Counsel for the defendant no. 1 stressed on the specific objection contained in the written statement that in pursuance to the directions of the Hon'ble Supreme Court in M.C. Mehta versus Union of India case, all the industries which were being run in the nonconforming areas were liable to be closed and the defendant no. 1 was empowered to prosecute the industries being run in the nonconforming areas apart from disconnecting the electricity and water connection. It was submitted that the plaintiffs were running the industry of paper cutting from the premises in question without obtaining any municipal license and further, the plaintiff no. 1 had been allotted an alternative site at Bawana Industrial Area, Narela Zone, Delhi in lieu of the old existing site and the plaintiff no. 1 had also submitted an affidavit to this effect on 12.05.2011 with the department to shift over the trade to the newly allotted site after closing the old one. It was argued on behalf of the defendant no. 1 that the plaintiffs were guilty of intentionally concealing material facts from the court and were not entitled to the relief of injunction. It is also inter alia Suit No. 112/14 Sh. Mukhtar Amhed & Anr.
Vs. The Administrative Officer Factory Licensing Department Nort DMC & Anr. 4/12 contended in the written statement of the defendant no. 1 that as per records, the factory licensing department had not issued any license to run the factory at site and all adhoc licenses had already come to an end as the defendants were issuing regular licenses to the eligible persons. The defendant no. 1 states that the property in question is situated in the nonconforming area and as such no factory license could be issued. The plaintiffs had paid the penalty imposed by the municipal magistrate in a prosecution initiated against them under section 416 and 417 of the DMC Act for illegally running the unit without municipal license that too in a nonconforming area thus acknowledging their guilt. The deposit of conversion charges did not legalize the running of the factory in the nonconforming area.
7. The defendant no. 2 has contended that it received a letter dated 15.04.2014 from the defendant no. 1 whereby the defendant no. 1 had requested the defendant no. 2 to disconnect the electricity connections in question since the unit was running without having valid factory license. The defendant no. 2 thereafter issued letter dated 03.05.2014 to the occupants of properties no. 3404 and 3407 informing them about the said letter of defendant no. 1 and requesting the plaintiffs to inform regarding any stay order from the court and as the occupants/consumers failed to supply any such stay order the electricity connections were disconnected on 19.05.2014.
Suit No. 112/14 Sh. Mukhtar Amhed & Anr.
Vs.
The Administrative Officer Factory Licensing Department Nort DMC & Anr. 5/12 It is stated that as per terms and conditions of the agreement between the registered consumer and the defendant, in case the consumer violates any statutory byelaws or uses electricity in violation of the terms agreed on by the parties, the defendant can disconnect the electricity at the request of the statutory bodies like defendant no. 1 and until the defendant no. 1 gave clearance the connection could not be restored. In the reply to the application under order 39 rules 1 and 2 CPC the defendant no. 2 denies incidents dated 12.05.2014 and 16.05.2014.
8. Oral arguments were advanced by counsel for the parties.
9. Ld. counsel for the defendant no. 1 placed on record the photocopy of the factory license in favour of the plaintiff no. 1 along with the perpetual lease in favour of the plaintiff no. 1 under the relocation scheme in relation to the industrial plot at Bawana, pointing out that clause 4 (b) thereof specifically mentioned that the lessee was to stop the use of the existing premises i.e. no. 3404, Main Road, Bara Hindu Rao for manufacturing activities or running any industry whatsoever or any purpose in contravention of the Master Plan for Delhi. It was after the defendant no. 1 mentioned about the fact of allotment of alternative site and issuance of factory license to the plaintiff at the alternative site i.e. at Bawana in the written statement that the plaintiffs during the course of arguments on the present application also filed a copy of Suit No. 112/14 Sh. Mukhtar Amhed & Anr.
Vs. The Administrative Officer Factory Licensing Department Nort DMC & Anr. 6/12 the said factory license and admitted that the same had been allotted to the plaintiff but the son of the plaintiff was working there and he strenuously argued that as per DSIDC for a premises to be a factory the same should be at least 100 meters in size and the plaintiffs' premises were too small in size, being about 10'x10'. He also argued that for a factory the minimum load required was 11 KV as per the DSIDC while the plaintiffs were only using 2 KV. He argued that the plaintiffs were only using the premises in question for trading purpose and no factory was being run at the premises by the plaintiffs.
10. Heard and perused.
11. The impugned letter dated 07.02.2014 issued by the defendant no. 1 to the defendant no. 2 mentions the reason for requiring disconnection of the electricity in both the premises no. 3404 and 3407, it is mentioned therein that the units in the properties in question were found to be running in non conforming area in violation of sections 416/417/430/461 of the DMC Act, the Hon'ble Supreme Court's directions in M.C. Mehta vs. Union of India and provisions of the Master plan 2021. Thus, the reason was not utilization of power consumption more than the sanctioned load but running of the units at the premises in question being allegedly unauthorized in violation of the DMC Act. It was admitted that the plaintiffs were carrying out the business jointly at the properties in question. The plaintiffs have not rendered any satisfactory Suit No. 112/14 Sh. Mukhtar Amhed & Anr.
Vs. The Administrative Officer Factory Licensing Department Nort DMC & Anr. 7/12 explanation for not disclosing in the plaint that the plaintiff no. 1 had got an alternative site for running the unit at Bawana, which fact was first brought before the court by the defendant no. 1. The plaintiffs' argument that they had no other source of livelihood apart from the premises in question completely falls flat on its face since the plaintiff no. 1 has admittedly obtained the alternative site under the relocation scheme in the year 2011, as per the copy of the perpetual lease deed filed by the defendant no. 1 on the record. The argument that the son of the plaintiff was running the factory at the site allotted goes against the plaintiff no. 1 since in fact the said factory license is nontransferable and the document i.e. the perpetual lease deed placed on record by the defendant no. 1 shows in fact that the same has been given in lieu of the unit i.e. property no. 3404 Bara Hindu Rao. The letter dated 07.02.2014 issued by the defendant no. 1 states that on an inspection done by the factory licensing inspector of the properties in question on receipt of a complaint it was found that the units in question were running in contravention of the DMC Act and the court's orders. The plaintiffs were at least prima facie required to show that they had valid licenses for running the business from properties in question whether it be a factory or an industrial unit or otherwise. The argument that the plaintiffs is that the machine of merely 1 Horse Power was being used and sometimes the work was done by hand does not convert Suit No. 112/14 Sh. Mukhtar Amhed & Anr.
Vs. The Administrative Officer Factory Licensing Department Nort DMC & Anr. 8/12 the business into one which does not require any license. The plaintiffs are aware that they need to show some sort of permission from the defendant no. 1 for carrying out the business as they have placed reliance on the adhoc registration certificates in the names of the plaintiffs 1 and 2. It was rightly argued by counsel for the defendant no. 1 that the adhoc registration certificate is not a licence, the said registration certificates are both dated 22 January 2007 and admittedly the plaintiffs do not have a valid factory license in relation of the properties in question. The only factory license that they possess is under the relocation scheme and that is the site from where the plaintiff no. 1 is supposed to earn his livelihood. The plaintiffs are in fact guilty of suppression of the material fact that as regards the property no. 3404 the plaintiff no. 1 with whom the plaintiff no. 2 is carrying out the business of light paper cutting machine, has already in the year 2011 been allotted an alternative site at Bawana and as per the affidavit submitted to the defendant no. 1 and as per the terms of the lease, the plaintiff was to stop the use of the premises for manufacturing activities or running any industry whatsoever. The relief of temporary injunction is an equitable relief and the plaintiff must come to the court with clean hands, for the nondisclosure of such a vital fact of allotment of alternative site for business in lieu of the property no. 3404, the relief sought must be declined.
Suit No. 112/14 Sh. Mukhtar Amhed & Anr.
Vs.
The Administrative Officer Factory Licensing Department Nort DMC & Anr. 9/12
12. Additionally, the defendant no. 1 argued that the action was taken in view of the directions of the Hon'ble Supreme Court of India in M.C. Mehta vs. Union of India 128 (2006) DLT 285 and M.C. Mehta vs. Union of India WP (Civil) 4677/1985 date of decision 07/05/2004. In M.C. Mehta vs. Union of India WP (Civil) 4677/1985 (supra), the Hon'ble Supreme Court issued the direction that the industrial units that had come up in residential/non conforming areas in Delhi on or after 1st August 1990 were to close down and stop operating as per the schedule provided therein and that the water and electricity connection of the industrial units found operating after the due date of closure shall be disconnected forthwith and not later than a month of the date fixed for closure. In Mahavir Singh vs. UOI and Ors. WP ( C) 7302/2009, decided on 22.08.2012 while issuing directions in relation to impermissible units the Hon'ble Delhi High Court directed that two separate actions required to be undertaken i.e. sealing and disconnection of electricity and water and it was clarified that the MCD would give a list of the units to the water and electricity authorities for necessary action. The disconnection in the present case prima facie appears to be done since the plaintiffs' units/businesses are running in a nonconforming area in violation of the DMC Act. The plaintiffs argue that they are not running a factory and further that plaintiffs were embroiled in litigation with the tenant on the first floor of the Suit No. 112/14 Sh. Mukhtar Amhed & Anr.
Vs. The Administrative Officer Factory Licensing Department Nort DMC & Anr. 10/12 premises in question who was making false complaints against the plaintiffs and was trying to harass the plaintiffs so that the plaintiffs would vacate the premises and he would be able to grab the properties in question. The fact is that even for running the business of paper cutting, whether with the use of one horse power machine or even by hand, the plaintiffs would still need to be having a valid license for running the business which they apparently do not have. The plaintiffs have not stated in the plaint that the business is not being carried out in a nonconforming area. In the written statement the defendant no. 1 has mentioned about the prosecution action carried out against the plaintiffs under section 416 and 417 of the DMC Act wherein the plaintiffs paid a fine, which was not controverted in the course of oral arguments by counsel for the plaintiffs. The plea in the plaint is simply that the plaintiffs were consuming the electricity as per the sanctioned load which as per the impugned letter dated 07.02.2014 is not even the reason for which the defendant no. 1 asked the defendant no. 2 to disconnect the electricity of the plaintiffs units. The unilateral deposition of conversion charges by the plaintiffs on 25.04.2014 i.e. after the issuance of the impugned letter of the defendant no. 1 would indeed not have the effect of giving any legal sanction to the plaintiffs in regard to running the business in the premises in question. The plaintiffs have placed on record a copy of the order dated 31.05.97 passed in Suit No. 112/14 Sh. Mukhtar Amhed & Anr.
Vs. The Administrative Officer Factory Licensing Department Nort DMC & Anr. 11/12 suit no. 212/97 which is a suit for permanent injunction titled 'Imtiaz Ahmed Ansari vs. Hakin Mohd. Zainuddin and Ors' wherein the parties to the suit were directed by the Ld. Civil Judge to maintain status quo qua property no. 3404 till the next date of hearing therein, the defendants herein are not parties to the said suit and as such the present case pertains to a separate dispute altogether and is not subject to the outcome of the said suit.
13. The plaintiffs have failed to show the existence of a prima facie case in their favour. They have not shown prima facie that they have a license from the MCD for carrying out the business from the properties in question or that the properties are not situated in a nonconforming area. They have also concealed the fact of allotment of alternative site to the plaintiff no. 1 in lieu of the property no. 3404 and are thus guilty of suppression of material facts. The balance of convenience also does not lie in favour of the plaintiff. For all the foregoing reasons the plaintiffs' application U/o 39 R 1 & 2 CPC is held to be devoid of merits. The application of the plaintiffs under order 39 rules 1 and 2 CPC is dismissed. Nothing in this order shall be construed as an expression on the merits of the case.
Announced in the open court ANJANI MAHAJAN
On 06.06.2014 Civil Judge - 10 (Central)
06.06.2014
Suit No. 112/14 Sh. Mukhtar Amhed & Anr.
Vs.
The Administrative Officer Factory Licensing Department Nort DMC & Anr. 12/12