Delhi District Court
Bajrang Bhardwaj vs . Nice Estates (P) Ltd. & Anr. on 4 January, 2007
1
IN THE COURT OF SHRI H.S.SHARMA, ADDL. DISTRICT & SESSIONS
JUDGE: DELHI
Suit No. 287-06
BAJRANG BHARDWAJ VS. NICE ESTATES (P) LTD. & ANR.
ORDER
This order shall dispose of an application under order 39 rules 1 and 2 CPC filed by the Plaintiff along with the suit. The prayer made in the application is that the Defendants be restrained from creating cell site and / or installing the communication tower in the premises bearing no. 17/41, West Punjabi Bagh, New Delhi till disposal of the suit.
2 The case of the Plaintiff in brief is that he has been authorized by 25 occupants of the building no. 17/41 West Punjabi Bagh, New Delhi. He is one of the occupants. Defendant no. 1 had constructed 4 floors consisting of 28 independent dwelling units on plot no. 17/41. The Plaintiff is owner and in possession of the apartment bearing no. T-2 of the III Floor on this building. Vide registered sale deeds executed by Defendant no. 1, the ownership rights in respect of the apartments had been sold/transferred. Both the Defendants are companies incorporated under the companies act. Defendant no. 1 has entered into an agreement with Defendant no. 2 for construction of a cell site. Defendant no. 2 intends to install a mobile communication tower on the roof of the property no. 17/41. They are not refraining 2 from doing so inspite of objections raised by the occupants. The Defendants intend to raise unauthorized construction. The building will not bear the load of huge communication tower. Hence this suit.
3 The application has been opposed by the Defendants. I have heard Counsel for the parties and have perused the file.
4 It is now well settled that at the stage of disposal of an application under order 39 rules 1 and 2 CPC, the court is required to see as to whether the three essential ingredients in favour of the Plaintiff exist or not. Those three ingredients are primafacie case, balance of convenience and irreparable loss. 5 The application has been opposed on the ground that the Plaintiff has not complied with the provisions of the order 1 rule 8 CPC. Defendant no. 1 has every right over the roof as the roof had not been transferred to any of the owners. There is a procedure which is required to be followed before installation of the tower. Engineers of high reputation are required to certify the strength of the building and the feasibility of installation of the tower. In this case, all these formalities have been complied with. It has been submitted that prayer made in the main suit and the application under order 39 rules 1 and 2 CPC is the same, therefore, passing of any order on the application would amount to decreeing the suit without trial. MCD and Police have not been made a party to this suit. No notice had been issued to them. The Plaintiff is not seeking any declaration to the effect that he has a right in the roof. 6 I have considered the submissions.
7 Ld. Counsel for Defendant no. 2 has placed reliance on "Satish Khosla 3 Vs. M/s Eli Lily Ranbaxy Ltd. & Another 71 (1998) DLT 1 (DB), "S.P Chengalvaraya Naidu (dead) by L.Rs., Vs. Jagannath by L.Rs and others" AIR 1994 SC 853, " Smt. Banipani Basu, Vs. Union of India & others AIR 1984 Calcutta 258, and "Reliance Infocom Ltd. Vs. Chemanchery Grama Panchayat" 2006 (4) KLT 695. 8 I have gone through these judgments. All these judgments are distinguishable on facts. Further a judgment cannot be applied in a mechanical manner. Reliance in this regard can be placed on "Kesar Devi Vs. Union of India 2003 VII AD (SC) 468 wherein it was observed as under:-
"The judgment of a court is not to be interpreted like a statue where every word, as far as possible, is to be given a literal meaning and no word is to be ignored. The observations may have to be understood in the context of facts and contentions raised.
9 It is now well settled that an illegal construction can be got injuncted through the court even by a neighbour. Reliance can be placed on "Onkar Nath Vs. Ramnath" AIR 1985 Delhi 293. Therefore, if the present suit is treated to be a suit on behalf of the Plaintiff alone, then also he has a right to get the alleged illegal construction restrained. I am not required to discuss the other aspects in detail as suffice it to say that even as per Defendant no. 2 an application dated 07.10.2006 had been moved by it before the MCD where in a permission has been sought from the MCD to install the tower on the roof of 17/41, West Punjabi Bagh, New Delhi. When this particular letter relied on by Defendant no. 2 was put to Counsel for Defendant no. 2 and it was inquired from him as to what was the necessity to seek permission 4 from the MCD, the reply of Counsel for Defendant no. 2 was that this permission was not required to be taken and it was a wrong act on the part of Defendant no. 2. I do not agree with Counsel for Defendant no. 2. If Defendant no. 2 was not required to obtain permission from the MCD, there was no occasion for it to send the copies of requisite documents to the MCD with the prayer that permission be granted. It was not an act due to inadvertence. It was a legal requirement as the installation of the tower was going to affect the entire building. The MCD officials were required to go through the reports of the engineers and to find out as to whether the building had the strength to bear the load of installation of the tower on its roof. Merely, because the Plaintiff has a limited right to make use of the roof does not mean that Defendant no. 2 had the right to install the tower. So far as the identical prayers in the suit and the application under disposal are concerned, at times, because of nature of relief, same prayers are made. For instance in a suit filed by a tenant against forcible dispossession by the landlord, identical prayers are made and invariably the application under order 39 rules 1 and 2 CPC is allowed. It is only in the cases of prayer of mandatory injunction that such a relief at the time of disposal of application under order 39 rules 1 and 2 CPC is granted in exceptional cases. If the MCD gives the permission to Defendant no. 2 to install the tower in view of the request made by Defendant no. 2, then in that case, the Plaintiff will have no right to seek the injunction. Therefore, the application of the Plaintiff is allowed. The Defendants will be at liberty to install the tower on the roof after obtaining necessary permission from the MCD for which Defendant no. 2 has already moved the application. This order shall therefore remain 5 effective till the permission is granted or till the disposal of the suit, which ever is earlier.
Announced in the open court (H.S.SHARMA) Today on 04.01.2007 ADJ/DELHI All pages signed