Delhi District Court
Sh. Daljeet Singh Anand vs ) Bharat Petroleum Corporation Ltd on 21 November, 2015
IN THE COURT OF SH. GURVINDER PAL SINGH
ADDITIONAL DISTRICT JUDGE01 (CENTRAL)
TIS HAZARI COURTS, DELHI
MCA - 21/2015
Unique I. D. No. 02401C0538102015
Sh. Daljeet Singh Anand,
S/o Sh. Kulwant Singh Anand,
R/o B1/37, First Floor,
Ashok Vihar, PhaseII,
Delhi110052.
......Appellant
Versus
1) Bharat Petroleum Corporation Ltd.,
ECE House, 28A, Kastyrba Gandhi Marg,
Connaught Place, New Delhi110001
Through its Chairman and Managing Director
& Others.
2) Lt. Shankar N. Karajagi,
S/o Sh. Nagappa,
Authorized Representative and Territory Manager,
Bharat Petroleum Corporation Ltd.,
Bijwasan Installation, Bijwasan, New Delhi.
.......Respondents
MCA21/2015
Daljeet Singh Anand Vs. Bharat Petroleum Corp. Ltd. & Anr. Page 1 of 10
Date of institution of appeal : 06.10.2015
Date of reserving the order : 19.10.2015
Date of pronouncement of order : 21.11.2015
O R D E R
1. The present appeal is directed against the impugned order of Ld. ASCJ (Central), Tis Hazari Courts, Delhi, dated 07.09.2015, thereby dismissing the application u/s 340 Cr. P.C. of appellant/plaintiff, bearing M. No. 38/14, titled "Daljeet Singh Anand Vs. Bharat Petroleum Corporation Ltd. & Anr."
2. Feeling aggrieved with the order of the trial court, present appeal was preferred by the appellant/plaintiff on the grounds that
(i) impugned order of dismissing the application u/s 340 Cr. P.C. was contrary to the facts and law laid down by the higher Courts of law which was binding upon Trial Court; (ii) Trial Court failed to appreciate that proceedings on application u/s 340 Cr. P.C. are separate and independent proceedings from the main suit and application u/s 340 Cr. P.C. had to be decided independently of the outcome/decision of main suit; (iii) Trial MCA21/2015 Daljeet Singh Anand Vs. Bharat Petroleum Corp. Ltd. & Anr. Page 2 of 10 Court made grave error of law by passing nonspeaking order merely because Trial Court dismissed the main suit and as such application u/s 340 Cr. P.C. made on behalf of appellant/plaintiff was also dismissed; and
(iv) Trial Court failed to appreciate that Union of India, Ministry of Urban Development, Land & Development Office (L&DO) in its written statement clearly stated that Bharat Petroleum Corporation Ltd. encroached upon public land, of 292 sq. yds. and installed/raised unauthorized construction of CNG Station on the said encroached upon public land and Bharat Petroleum Corporation and its authorized representative Lt. Shankar Karajagi in its written statement falsely stated on oath intentionally and willfully in order to get favorable order from the Trial Court, that Bharat Petroleum Corporation Ltd. had not encroached upon public land and had not installed/raised unauthorized construction of CNG Station on the said encroached upon public land. The Trial Court failed to appreciate that under such facts and circumstances the Trial Court ought to have decided the application u/s 340 Cr.PC. on merits after the evidences of the parties on application u/s 340 Cr. P.C. by returning the finding that whether Bharat Petroleum Corporation Ltd. encroached upon public, installed/raised unauthorized construction of MCA21/2015 Daljeet Singh Anand Vs. Bharat Petroleum Corp. Ltd. & Anr. Page 3 of 10 CNG Station on said encroached land or not. Appellant/plaintiff prayed for setting aside of the impugned order and allowing of application u/s 340 Cr. P.C.
3. I have heard the arguments of Sh. Surinder Jain, Ld. counsel for appellant/plaintiff, perused the record of this appeal and the entire record of the trial court received on requisition and have given my thoughts to the contentions put forth. Ld. counsel for appellant argued in terms of averments of appeal seeking setting aside of impugned order.
4. Vide separate order of today's date the appeal bearing no RCA46/2015, titled "Daljeet Singh Anand Vs. Bharat Petroleum Corporation Ltd. & Ors.", preferred by appellant/plaintiff against impugned order of Ld. ASCJ, Central, Delhi, dated 07.09.2015, thereby dismissing suit of appellant/plaintiff of mandatory injunction; has been dismissed. The impugned order of the Trial Court had been upheld.
5. Appellant/plaintiff had filed site plan alongwith the plaint and in the prayer in the plaint before Trial Court sought the decree of MCA21/2015 Daljeet Singh Anand Vs. Bharat Petroleum Corp. Ltd. & Anr. Page 4 of 10 mandatory injunction to remove/demolish the unauthorized construction of canopy and sales room from petrol pump of respondent/defendant no.1, situated opposite Hansraj College, Malka Ganj, Delhi110007, more particularly shown in red colour in site plan attached with the plaint and respondents/defendants be further directed to remove CNG Station from the encroached Government/public land, situated in petrol pump of respondent/defendant no.1, situated opposite Hansraj College, Malka Ganj, Delhi110007, more particularly shown in blue colour in site plan attached with the plaint attached. The portion shown in red colour as well as portion shown in blue colour in afore elicited site plan of the site in question filed by plaintiff itself reveals that such coloured portions are neither part of any public road/street/passage for public; whereas in the portion shown as 'Road' in said site plan, neither there is any alleged encroachment nor alleged unauthorized construction by any of respondents/defendants in terms of pleadings of appellant/plaintiff before Trial Court.
6. The L&DO, Department of Ministry of Urban Development of Union Of India/defendant no2 in its written statement before the Trial MCA21/2015 Daljeet Singh Anand Vs. Bharat Petroleum Corp. Ltd. & Anr. Page 5 of 10 Court, inter alia averred that on 21.01.1966, the office of said respondent/defendant no2 issued notice, copy AnnexureVII, to Burmah Shell storage and Distribution Company of India Ltd., now known as Bharat Petroleum Corporation Ltd. i.e. respondent/defendant no.1, vide which they were informed that on inspection of premises carried out by their office, it was noticed that the petrol pump has unauthorizedly occupied Government land, measuring 292 sq. yds. and requested to remove the same under intimation to their office. Said notice of alleged encroachment was issued way back in January 1966. Also the averments of appellant/plaintiff had been that vide partnership deed dated 31.05.1976, he was amongst six partners of M/s Anand Super Service Station, running the petrol pump in question. Also is averment of appellant/plaintiff that dispute of partners of said firm M/s Anand Super Service Station was subjudice in OMP No. 454/08 before High Court of Delhi, whereas on account of said dispute, appellant/plaintiff was forcibly out of business of said firm w.e.f. 18.02.2002. When for more than a quarter of century the appellant/plaintiff was alleged partner of the firm in alleged occupancy of said petrol pump, the appellant/plaintiff never took any step for alleged encroachment of Government land by the said MCA21/2015 Daljeet Singh Anand Vs. Bharat Petroleum Corp. Ltd. & Anr. Page 6 of 10 partnership firm or any of the arraigned respondents/defendants. It was for the owner of the land, be it Government or otherwise, for taking permissible steps in law for legal remedies available in case of any encroachment of said land as is so alleged in afore elicited notice dated 21.01.1966 of defendant2. Upon any proceedings initiated in any court of law for redressal of such grievances, it would be before the authority concerned to consider whether such plea was within period of limitation. Fact remains that the red and blue colour portions of site plan afore elicited are neither part of any public road/street/passage for public to carve out any infringement of any right of plaintiff as a public person to pass and repass therefrom, for removal of obstructions therefrom in terms of case law relied upon and afore elicited. Appellant/plaintiff as per own assertion is a native/resident of Ashok Vihar, PhaseII, Delhi110052 distant from the site of petrol pump in question at Malka Ganj, Delhi110007. It is admitted case of respondent/defendant no1 as per pleadings before the Trial Court, the land upon which the petrol pump in question is situated/constructed belonged to respondent/defendant no2, which was initially allotted to Burmah Shell Oil and Distribution Company of India Ltd., the predecessor in interest of respondent/ MCA21/2015 Daljeet Singh Anand Vs. Bharat Petroleum Corp. Ltd. & Anr. Page 7 of 10 defendant no1, who had constructed the 'Canopy' and 'Sales Room' there upon; so, no case of infringement on part of respondent/defendant no1 could be carved out as respondent/ defendant no1 simply carried out repairs in said canopy sales room in 2001 using fabricated material by nuts and bolt. It is also the case of respondent/defendant no1 that the facilities at the said petrol pump were as per sanctioned plan of the explosive department and CNG was added in said petrol pump in March 2008 vide explosive license, detailed therein in the written statement. Also, is the averment of respondent/defendant no1 that it had not done any encroachment on any land including Government land at the petrol pump, running under the name and style of M/s Anand Super Service Station, opposite Hansraj College, Malka Ganj, Delhi110007.
7. In the backdrop of dismissal of the main suit on the premise of appellant/plaintiff having no locus standi to file the suit having no personal interest in the matter in terms of Section 41(j) of Specific Relief Act, 1963, there was no need for Trial Court to test the averments of respondents/defendants on the anvil of evidence to adjudicate the application u/s 340 of Code of Criminal Procedure to return the finding MCA21/2015 Daljeet Singh Anand Vs. Bharat Petroleum Corp. Ltd. & Anr. Page 8 of 10 whether respondent/defendant no1 encroached upon public land or not and/or raised unauthorized construction thereon. It is not to be lost sight of the fact that as afore elicited, L&DO/defendant no.2 had claimed encroachment of 292 sq. yds. of Government land way back in January 1966 and did not detail any steps taken by L&DO/defendant no2 till date of filing of such written statement for recovery of its possession from the unauthorized occupier. In January 1966 not respondent/ defendant no.1 but its predecessor namely, Burmah Shell storage and Distribution Company of India Ltd. was in occupation of the said Government land and said Burmah Shell storage and Distribution Company of India Ltd. is alleged to have raised construction for "Canopy" and "Sales Room" in said petrol pump. Having held of appellant/plaintiff having no personal interest in subject site of petrol pump nor alleged encroachment/alleged unauthorized construction coming in any way of passage nor forming part of public road/street for which appellant/plaintiff can claim any right of passage, I find no substance or merits in the ground of appeal to set aside the impugned order of the Trial Court for revival of the application u/s 340 Cr.P.C. or to direct Trial Court to adjudicate after giving opportunities to parties to lead evidence, when main suit does not MCA21/2015 Daljeet Singh Anand Vs. Bharat Petroleum Corp. Ltd. & Anr. Page 9 of 10 survive. Appeal is dismissed. No order as to cots.
8. File of this appeal be consigned to record room and the requisitioned file of trial court be sent back against receipt. Copy of this order be also sent to the trial court.
Announced in open Court (GURVINDER PAL SINGH)
st
on 21 Day of November, 2015. Addl. Distt. Judge01 (Central) Tis Hazari Courts, Delhi.
(AD) MCA21/2015 Daljeet Singh Anand Vs. Bharat Petroleum Corp. Ltd. & Anr. Page 10 of 10