Delhi High Court
Express Newspapers Ltd. vs Indian Express Newspapers (Bom) Ltd. on 1 August, 1996
Equivalent citations: 1997(40)DRJ311
Author: Lokeshwar Prasad
Bench: Lokeshwar Prasad
JUDGMENT Lokeshwar Prasad, J.
(1) This Order will dispose of defendant's application, filed under Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code'), seeking modification of order dated the 14th December, 1992, passed by the learned predecessor of this Court in Ia 14222/92.
(2) The facts relevant for the disposal of the above mentioned application lie in a narrow compass. The plaintiff is a Company, registered under the Companies Act, 1913 in the year 1946 and is an existing Company within the meaning of Companies Act, 1956, having its registered office at Express Estates, Clubhouse Road, Anna Salai, Madras and a Branch Office at Express Building, Bahadurshah Zafar Marg, New Delhi. It is averred that the plaintiff Company is the lessee of plot No. 9-10, Bahadurshah Zafar Marg, New Delhi and owns the building, commonly known as Express Building, situated at the above said premises i.e. 9-10, Bahadurshah Zafar Marg, New Delhi. The defendant, as per the averments made in the plaint, has been in occupation of a large portion of the above said building to the extent of 69,566 Sq. ft. for which a sum of Rs 72,625.00 is being paid as rent per month, of which an amount of Rs 10,000.00 per month is deducted towards electricity charges payable by the plaintiff. As regards the rest of the electricity for air conditioning of common areas in the building, the charges are borne by the defendant. It is alleged that the above arrangement is in vogue for the last so many years. In the present proceedings the plaintiff Company inter- alia has assailed the bill/debit note, raised by the defendant dated the 5th September, 1992, claiming a sum of Rs 87,10,938.00 as electricity charges for operation of air conditioners and maintenance charges of transformers and electrical installations for the period from April, 1989 to July, 1992. According to the plaintiff the above mentioned Bill/Debit note, thus raised was not only totally illegal, nonest, void, unenforceable, contrary to the agreement but wholly malafide and fabricated. In reply thereto the plaintiff addressed a letter dated 15.10.1992, pointing out the factual position, more particularly the arrangement between the parties in vogue for the last so many years. In reply, it is alleged that the plaintiff received a letter dated 11.11.92 from the defendant under the signatures of one Mr. Vivek Khaitan, who it is alleged had been attempting to take the exclusive control of all the newspaper companies to the detriment of the interests of all other legal heirs of deceased Shri Ram Nath Goenka. In reply to the above communication, plaintiff wrote a letter dated 21.11.92 re-emphasizing all that was stated in the earlier letter. It is alleged that in reply the plaintiff received another letter dated 21.11.92 from the defendant containing a wholly illegal threat to the plaintiff that unless the aforesaid debit of Rs 87,10,938.00 was honoured by the plaintiff, electricity supply would not be continued and that the plaintiff should make its own arrangements for the future supply of electricity to the tenants occupying first, second, third and fourth floors of the old building and ground, first, second and third floors of the new building and for the maintenance of transformers and electrical installations. It is further alleged by the plaintiff that the defendant has further threatened the plaintiff that if the plaintiff did not make its own arrangements for supply of electricity as aforesaid till 15.12.1992, the defendant would start deducting electricity charges for the aforesaid electricity facilities from the monthly rent payable in cash to the plaintiff. The plaintiff has prayed that a decree may be passed in favour of the plaintiff and against the defendant:- "(A)for a permanent injunction restraining the defendant, the defendant's agents, servants and associates from disconnecting and/or altering in any manner the electricity supply to the office premises of the plaintiff and to the rest of the building in occupation of the various tenants mentioned in the plaint hereinabove, including the electric supply for the centralised air conditioning plants, pumpsets, lifts and lighting the passages, corridors, staircases, lift landings and other common areas, and the electricity supply necessary for other common electric facilities in the building known as Express Building (Old & New), situated at No. 9 and 10, Bahadurshah Zafar Marg, New Delhi - 110 002. (b) for permanent injunction restraining the defendant from deducting any amount over and above Rs 10,000.00 (Rupees ten thousand only) per month from the monthly rent of Rs 72,625.00 (Rupees seventy two thousands, six hundred and twenty five) payable by the defendant to the plaintiff in respect of the portion of the building let out to the defendant company by the plaintiff in or about 1st January, 1966 and in or about 1st November, 1983 in the old portion and new portion of the buildings respectively known as "Express Building Complex" situated at 9-10 Bahadurshah Zafar Marg,New Delhi-110002. (c) direct the defendant to pay the cost of this suit and"
(3) The plaintiff alongwith the suit also filed an inter locatory application (IA 14222/92) under Order Xxxix Rule 1 & 2 read with Section 151 Civil Procedure Code seeking interim relief till the final disposal of the suit. In the above said application it has been alleged by the plaintiff that going by the past conduct of said Shri Vivek Khaitan and other officers of the defendant it is most likely that the defendant would resort to disconnection of electricity supply which would cause immense loss embarrassment and harassment to the plaintiff. The above mentioned application(IA 14222/92) came up for hearing before the learned predecessor of this Court on 14.12.92 and the learned predecessor of this Court passed the following orders:- "IA14222/92 : Notice for 18th March, 1993. In the meanwhile, the defendant is restrained from disconnecting and/or altering the electricity supply to the office premises of the plaintiff and to the other occupants of the building constructed on 9 and 10, Bahadurshah Zafar Marg, New Delhi including the electric supply for centralised air conditioning plants, water pump-sets, lifts and lighting for passages, corridors, staircase, lift landings and other common areas. The defendant is in the meanwhile further restrained from deducting from the rent payable by it to the plaintiff any amount in excess of Rs. 10,000.00 per month by way of charges for electricity consumed by common facilities at buildings located at 9 and 10 Bahadurshah Zafar Marg, New Delhi. Dasti".
(4) Vide above mentioned application (IA 6182/96) the defendant has sought for the modification of the above order, passed by the learned predecessor of this Court on 14.12.92 mainly on the ground that at about 0200 hours on 7.6.96 a fire started in the first floor of the old building of 'Express Building" at 9-10, Bahadurshah Zafar Marg, New Delhi in possession of M/s Hindustan Lever Limited as a tenant of the plaintiff. It is stated in the application that the fire then spread partly through air-conditioning shafts and ducts, causing serious damage to third and fourth floor under the occupation of Mmtc and other tenants of the plaintiff. It is stated that the above said fire caused extensive damage inter-alia to the air-conditioning ducts, electrical cables and air-conditioning shafts etc. The defendant/applicant while relying on a letter dated 13.6.96 (extracted verbatim in the body of the application) from the Divisional Officer, Delhi Fire Service, has stated that extensive damage has been caused to the air-conditioning shafts, electrical cables, fire fighting equipment as also the fire alarms are also burnt, destroyed, exhausted and as such there is no effective in house fire fighting measures/equipment existing on the first, third and fourth floors of the building. As per the case of the applicant/defendant, the damaged 360 ton A.C. plant, which has been re- started by the plaintiff/non-applicant without necessary replacement/repairs is a fire hazard and danger to the occupants of the building. It has been prayed by the defendant/applicant that order dated 14.12.92, passed in Ia 14222/92, be modified so as to direct the plaintiff/non-applicant not to use/run the 360 ton A.C. plant till such time the entire old/damaged air- conditioning ducts, shafts, electrical wiring, fire fighting equipments are not replaced. In the alternative it has been prayed that the applicant/defendant be permitted to disconnect the electric supply to the 360 ton A.C. plant, being operated by the plaintiff/non- applicant till such time the entire old damaged air- conditioning ducts, shafts, electrical wiring, fire fighting equipment etc. are not replaced.
(5) The plaintiff/non-applicant, on whom a copy of the above mentioned application was served has filed a detailed reply. In the reply filed on behalf of the plaintiff certain preliminary objections have been taken. The plaintiff in the reply though has admitted the fact of the fire having occurred on 7.6.96 but has disputed the description of the fire as having spread in the manner alleged or causing serious damage to the third and fourth floors. It is stated in the reply that the above application, filed by the defendant is an attempt to harass the plaintiff and the application filed by the applicant/defendant deserves to be rejected as the applicant/defendant has wilfully suppressed material facts and has made false and misleading averments. It is further stated in the reply, filed on behalf of the plaintiff that the A.C. plant was commissioned and made operational with effect from 13.6.96 and as regards the other repairs the airconditioning plant in question was completely checked and the damaged cables, wires etc. were replaced. It is stated that the air-conditioning facilities were commenced after completely ensuring that the plant, cables etc. were in order and did not pose any hazard to life and property of the occupants or the general public. The plaintiff has denied that the old airconditioning equipment lacks effective fire fighting equipment posing hazard. It is stated that the defendant on the one hand is making all kinds of unfounded allegations about electrical wiring, safety, damaged equipment etc. and on the other hand the defendant is threatening other occupants/tenants with dis-connection of electricity if the same are being used to carry out the repairs etc. (6) The defendant/applicant has filed a rejoinder to the reply filed on behalf of the plaintiff, controverting the pleas taken by the plaintiff in the reply and re-iterating the averments made in the application. The plaintiff has filed a reply to the rejoinder. In the reply to the rejoinder, filed on behalf of the plaintiff, it is specifically stated that the plaintiff is maintaining the building, its fixtures, equipment and machinery in excellent condition and this was one of the main reasons why the 'Fire Service' was able to effectively contain the fire on 7.6.96. It is also stated that after the fire accident on 7.6.96 the non- applicant/plaintiff got all the damaged wiring replaced at its expense and as such the apprehension regarding any future accident is misplaced and mischievious. It is further stated that the electrical cables and controls of the airconditioning plant, including the plant itself have been tested by competent chartered engineer who has certified its safety after testing and inspecting the same immediately after the fire. In the reply it is also stated that the averments in the rejoinder show that the supply of electricity to the plaintiff was restored immediately after the fire which shows that the cables, contrary to the allegations, were not damaged. All the above assertions of the plaintiff/non- applicant have gone on record uncontroverted.
(7) I have heard the learned counsel for the parties at length and have also carefully gone through the documents/material on record. On behalf of the applicant/defendant arguments were advanced by Shri Arun Jaitley, Sr. Advocate who was assisted by Mr. Rajiv Nayyar, Mr. N.B. Joshi, Ms. Seema Sapra and Mr. Sandeep Mittal, Advocates, whereas on behalf of the plaintiff/non-applicant, arguments were advanced by Shri C.S. Vaidyanathan, Sr. Advocate, who was assisted by Mr. Ravinder Bhatt, Advocate. As per settled law, culled out from various judicial decisions, where an interim order has been made, such an order is ordinarily not to be discharged or varied unless such discharge or variation has been necessitated by a change in the circumstances or unless the Court is satisfied that the order has caused undue hardship. In the present case the order in question was passed by the learned predecessor of this Court on 14.12.92 and the same is being complied with by the defendant although since then. Now vide above mentioned application, the applicant/ defendant seeks modification of the above order on the ground that on 7.6.96 at about 2.00 a.m. there was an out break of fire in the first floor of the old Express Building, situated at 9-10, Bahadurshah Zafar marg, New Delhi, causing serious damage to the first, third and fourth floors of the said building and also to the airconditioning shafts and ducts. According to the applicant/defendant the damaged 360 ton A.C. plant re- started by the non-applicant/plaintiff on 1.7.96, without having the same repaired, is a fire hazard and danger to the occupants of the building. The applicant/defendant in support of his above contention has placed reliance on a communication dated the 13th June, 1996 from the Divisional Officer, Delhi Fire Service, addressed to M/s Express Newspapers Limited (reproduced .pa verbatim in the body of the application) which reads as under:- "GOVERNMENTOF National Capital Territory Of Delhi (HEADQUARTERS : Delhi Fire Service : New DELHI-1) No.F.1/GB/DFS/96-97/916 dated 13.6.96 To M/s Express News Papers Limited, Indian Express Building, Bahadurshah Zafar Marg, New Delhi - 110002. Sub: Copy of Fire Report Sir, Please refer to your office letter No. Nil dated 12.6.96 on the subject cited above. The Required informations are given as below:- 1. Date of Occurrence:7.6.96 2. Time of receipt of call: 02.35 hrs. 3. Property involved: The details of the properties involved under fire is given below:- i) Ground floor - (BTS room Indian Express) involving paper records. ii) Ist floor - (Hindustan Lever) : Involving furniture & fixture, false ceiling, air conditioning ducts, electrical cables, almirahs, computers, records etc. iii) IIIrd floor - (MMTC) : Air conditioner, furniture, photo copier, computer, telephone exchange etc. iv) IVth floor - (MMTC) : Furniture & fixture, wooden partitions, false ceiling, air conditioning ducts, electrical cables, almirahs, computers, records, ready made garments, yarn etc. Note : Building structure also damaged mainly terrace, walls, lift shafts, air conditioning shafts and interior of the effected floors. Name of Occupier/Land Lord M/s. Express News Paper Limited, Express Building, B.S.Z. Marg, New Delhi Yours faithfully, sd/- Divisional Officer, Delhi Fire SERVICE."
--- *** ---
(8) As already stated, an interim order, is ordinarily not to be discharged or varied unless such discharge or variation has been necessitated by a change in circumstance or unless the Court is satisfied that the order has caused undue hardship. In the present case modification/variation in order dated 14.12.92 is requested on the ground of change in the circumstance as a result of out break of fire in the building in question on 7.6.96. It is to be seen as to whether the alleged change in the circumstance, as represented by the applicant/defendant in the above application, can be a just and sufficient ground for varying/modifying the order dated 14.12.92, as prayed for by the applicant/defendant. The case of the applicant/defendant, as projected in the application is that as a result of the out break of fire in the building on 7.6.96 extensive damage has been caused and re commissioning of the 360 ton A.C. plant by the plaintiff without repairs/replacement is a fire hazard and danger to the occupants of the building. The above plea has been controverted by the non-applicant/plaintiff by saying that the A.C. plant, after necessary repairs, has been re-commissioned w.e.f. 13.6.96 and there is no fire hazard and no danger to the occupants of the building. In this connection it is worth mentioning that the Parliament with the object to enact more effective provisions for fire prevention and fire safety measures in buildings and premises in the Union territory of Delhi has enacted the Delhi Fire Prevention & Fire Safety Act, 1986 (hereinafter referred to as 'the Act') and in exercise of the powers conferred by Section 16 of the Act, the Administrator of the Union territory of Delhi has framed the rules known as the Delhi Fire Prevention & Fire Safety Rules, 1987 (hereinafter referred to as 'the Rules'). From the pare-amble of the Act it is apparent that the Act has been enacted by the Parliament in order to make more effective provisions for 'Fire Prevention & Fire Safety Measures' in the building and premises in Union territory of Delhi. The term 'Fire Prevention & Fire Safety Measures' has been defined in clause(g) of Section 2 of the Act as under:- "Fire prevention and fire safety measures" means such measures as are necessary in accordance with the building bye-laws for the prevention, control and fighting of fire and for ensuring the safety of life and property in case of fire;"
(9) Section 3, Section 4, Section 5 & Section 6 of the Act, which may also have some bearing on the point in issue read as under:- "3. Inspection of buildings, premises, etc. - (1) The nominated authority may, after giving three hours' notice to the occupier, or, if there be no occupier, to the owner of any building having such height as may be specified by rules framed under this Act, or premises, enter and inspect the said building or premises at any time between sunrise and sunset where such inspection appears necessary for ascertaining the adequacy or contravention of fire prevention and fire safety measures: Provided that the notified authority may enter into and inspect any building or premises at any time if it appears to it to be expedient and necessary to do so in order to ensure safety of life and property. (2) The nominated authority shall be provided with all possible assistance by the owner or occupier, as the case may be, of the building or premises for carrying out the inspection under sub-section (1). (3) When any building or premises used as a human dwelling is entered under sub-section (1), due regard shall be paid to the social and religious sentiments of the occupiers; and before any apartment in the actual occupancy of any women, who according to the custom does not appear in public, is entered under sub-section (1), notice shall be given to her that she is at liberty to withdraw, and every reasonable facility shall be afforded to her for withdrawing. 4. Measures for fire prevention and fire safety (1) The nominated authority shall, after the completion of the inspection of the building or premises under section 3 record its views on the deviations from or the contraventions of, the building bye-laws with regard to the fire prevention and fire safety measures and the inadequacy of such measures provided therein with reference to the height of the building or the nature of activities carried on in such building or premises and issue a notice to the owner or occupier of such building or premises directing him to undertake such measures as may be specified in the notice. (2) The nominated authority shall also give a report of any inspection made by it under section 3 to the Chief Fire Officer. 5.Power to seal buildings or premises (1) Where, on receipt of a report from the nominated authority under sub-section (2) of section 4, it appears to the Chief Fire Officer that the condition of any building or premises is dangerous to life or property, he shall, without prejudice to any action taken under section 7, by order, require the persons in possession of occupation of such building or premises to remove themselves from such building or premises forthwith. (2) If an order made by the Chief Fire Officer under sub-section (1) is not complied with, the Chief Fire Officer may direct any police officer having jurisdiction in the area to remove such persons from the building or premises and such officer shall comply with such directions. (3) After the removal of the persons under sub-section (1) or sub-section (2), as case may be, the Chief Fire Officer shall seal the building or premises. (4) No person shall remove such seal except under an order made by the Chief Fire Officer. 6. Provision regarding certain buildings and premises (1) Notwithstanding anything contained in any other law for the time being in force, the Chief Fire Officer may enter and inspect any building, the construction of which was completed on or before the 6th day of June, 1983(being the date on which the current building bye-laws had come into force) or any building which was under construction on such date if such inspection appears necessary for ascertaining the adequacy of fire prevention and fire safety measures in such building. (2) The entry and inspection under sub- section(1) shall be done by the Chief Fire Officer in the manner laid down in section 3. (3) The Chief Fire Officer shall, after inspection of the building or premises under sub-section (1), and after taking into consideration - (i)the provisions of the building bye- laws in accordance with which the plan of the said building or premises was sanctioned; (ii) the conditions imposed, if any, by the local authority at the time of the sanction of the plan of the said building or premises; and (iii) the minimum standards for fire prevention and fire safety measures specified such building or premises as may be specified by rules framed under this Act, issue a notice to the owner or occupier of such building or premises stating therein the inadequacy in regard to the fire prevention and fire safety measures in it and direct the owner or occupier to undertake measures for rectifying the said inadequacy within such period as he may consider just and reasonable. As already stated, the case projected by the applicant/defendant vide above mentioned application is that as a result of the out break of fire in the building on 7.6.96, the 360 ton A.C. plant, re-started on 1.7.96 without any repairs to the damaged A.C. shafts and ducts has been rendered a fire hazard and danger to the occupants of the building. In so far as the above aspect is concerned, the position is that the letter dated the 13th June, 1996, issued by the Divisional Fire Officer, Delhi Fire Service, which as per the case of the applicant/defendant is the basis of the present application nowhere states that either the building or the A.C. plant in question, as a result of the out break of the fire in the building on 7.6.96, has been rendered a fire hazard or dangerous or unsafe to the life and property of the occupants of the building. The same merely certifies the extent of damage caused as a result of fire to the building and to the installations, installed therein. Moreover, the power given by sub-Section(1) of Section 3 of the Act to the 'nominated authority' no doubt is restricted to the buildings, having such height as may be specified by the rules, but the proviso to the above said sub-Section of the Act is of much wider in its sweep so as to include 'any building' or 'premises' irrespective of any height or any other restriction whatsoever. Had the case been, as projected by the applicant/defendant, in that event the Divisional Fire Officer, would not have stopped merely by issuing letter dated 13.6.96 only certifying the extent of damage caused in the building and the installations as a result of the out break of fire but the concerned authority, whose attention was specifically invited by the plaintiff towards the fire incident which took place in the building on 7.6.96, would have decidedly discharged the statutory obligations as contemplated in the above said provisions of the Act and would have declared the building and/or the installations, as the case may be, hazardous or dangerous or unsafe for the life and property and thereafter would have taken the necessary follow up action in the matter as provided under the provisions of the Act and the rules framed thereunder. However, no such action under the provisions of the Act and the rules framed thereunder has been taken by the concerned competent authority either in respect of the buildings or in respect of the installations, installed therein including the A.C. plant in question and in the absence of any such action or indication by the concerned competent authority it is somewhat difficult to believe the assertions made by the applicant/defendant in the application. In view of the above discussion, in my opinion, the present application, filed by the applicant/ defendant for modification of order dated 14.12.95 passed in Ia 14222/92 is devoid of substance. The same merits dismissal. Accordingly the same is dismissed. No order as to costs.