Leila Gurcharan Singh And Anr. vs Lal Chand And Anr.
1992 Latest Caselaw 385 Del

JUDGMENT

Dalveer Bhandari, J.

(1) The controversy involved in this Suit is rather narrow and at the request of the parties, the Suit is being finally disposed of at this stage.

(2) The plaintiffs have filed a suit for permanent injunction in which they have prayed that a decree for permanent injunction be granted in favor of the plaintiffs and against the defendants, thereby restraining the defendants, their associates, servants, agents, friends, etc. from, interfering into the peaceful use enjoyment, and running of the petrol pump under the name and style of M/s R.K. Service Station at Yashwant Place, Vinay Marg, New Delhi, by the plaintiffs. The other prayer was that the defendants be restrained from entering into the house of the plaintiffs at E-18, defense Colony, New Delhi, and E-70, Greater Kailash Part Ii, New Delhi and cause any obstruction in the living of the plaintiffs in the said property.

(3) It is averred in the plaint that the land Along with the superstructure constructed thereupon was on leave and license basis by M/s Indian Oil Corporation in favor of the plaintiffs vide Agreement dated 28.8.1985, though the plaintiffs have been running the business since the year i982. The defendants were running a Kacha Khokha on the land belonging to the Land and Development Office. The land is situated on the rear side of the petrol pump and is contiguous to the land where the plaintiffs have been running their petrol pump business. The defendants were selling cold drinks, tea, coffee, cooked food stuffs like bread pakora, cheese pakora, butter toasts, etc. in the said khokha.

(4) The defendants in the year 1986 requested the plaintiffs to allow them to sell cold drinks only, with a counter in a small open space measuring about 100 sq. ft. on the front left corner of the plaintiffs' land. The defendants had expressed that they were in financial difficulties since their business of tea stall in the backside was p=09 not running well as it was away from the main road. In fact, the defendant no. 1 is an old man with the poor eye sight. He represented and requested the plaintiffs that he may be allowed to sit there and sell the cold drinks only, so that he could earn bread and butter for his family, as his son defendant no.2 was unemployed at that time. The plaintiffs permitted them to run the open counter for the sale of cold drinks only. It was made clear to the defendants that they would use this counter only for sale of cold drinks and shall never use any inflammable items like fire, gas. kerosene oil, etc. since the same was hazardous to the business of the plaintiffs and was also against the rules framed under Indian Petroleum Act. The defendants had agreed to the said condition and assured and undertook to the plaintiffs that they would always honour the terms and conditions and would never cook in the said place. Relying upon these assurances and undertakings given by the defendants, the plaintiffs had permitted them to sell cold drinks on the open land.

(5) From February, 1992, the defendants started cooking and preparing the stuffs like tea, coffee, bread toasts, bread pakora, samosa, etc. from the said site thereby using fire in the form of gas, kerosene oil, stove, etc. and have thus started causing breach to the assurances and undertakings given by them to the plaintiffs.

(6) It is further submitted that the defendants had also in the most unauthorised and illegal manner and in connivance with M/s Parle Products Pvt. Ltd., put up a wooden and tin sheeted stall with the Limca advertisements at the site in question unauthorisedly in the month of March, 1992.

(7) It may be relevant to mention that the defendants had filed a suit before the Senior Sub Judge, Delhi on 20th March, 1992 and prayed that the plaintiffs be restrained from dispossessing them from the site in question. In that suit, no stay had been granted by the court.

(8) It is mentioned in the plaint that the plaintiffs vide letter dated 26.3.92 and 31.3.92 also lodged the complaint with M/s Parle Products Pvt. Ltd. Bombay, thereby requesting them to remove the kiosk put up by them. On 1st April, 1992, the plaintiffs had again lodged a complaint with the Police that since M/s Indian Oil Corporation vide their letter dated 1st April, 1992 objected and protested to the existence of the aforesaid kiosk and had pressed the defendants to remove the same as it was in contravention and in infringement of the various terms and conditions of the Agreement dated 26.8.1985, as it was found that the business involving smoke, flames for cooking purposes, which is in serious violation of the specific rules. It was also mentioned that because of the illegal acts of the defendants, M/s Indian Oil Corporation had threatened the plaintiffs to terminate their agreement. The plaintiffs had also lodged a complaint with the Administrator, New Delhi Municipal Committee. It is further mentioned that the officials of the N.D.M.C. had visited the site on 3rd April, 1992 and on 9th April, 1992, and had completely removed the said kiosk from the ground. The N.D.M.C. officials also removed and took away the belongings like utensils, bottles, foodstuffs, etc. lying there. It is relevant to mention that it is the statutory duty of the Ndmc to remove the unauthorised kiosk in the Ndmc Area. The defendants in order to grab the possession of the site are threatening the plaintiffs that they would re-enter the premises and reconstruct the said wooden kiosk. It is mentioned in the plaint that there is a petrol storage in the premises having 70000 litres of petrol at a time.

(9) The Suit was registered on 10th April, 1992 and in the interim application, this court restrained the defendants from interfering or re-erecting the structure at the site. The defendants were further restrained from interfering in the residential premises of the plaintiffs. The court also appointed a Local Commissioner Ms. Punita Bhatia, Advocate to visit the site. She had mentioned that the kiosk as shown in the photographs submitted with the plaint by the plaintiffs has been completely demolished. The defendants have filed a detailed written statement and they have admitted in para 2 of the written statement that they were selling tea, coffee, cooked food stuffs like bread pakora, cheese pakora. butter toast, etc. in the said khokha. In para 3 of the written statement, it is mentioned that there was a clear agreement between the parties for the running of the kiosk under the name of R.K. Cafe and that the defendants had been selling all the eatables like bread pakora, cheese pakora, butter toast, tea coffee and cold drinks etc. from the said kiosk. It is denied that it was in the year 1986 that the defendants requested the plaintiffs to allow them to sell the cold drinks. The agreement of 1980 between the parties clearly shows that there had been a written agreement to that effect and that the defendants had been selling tea, coffee and other food stuffs for a long time. In the written statement, it is denied that the defendants in order to protect any unauthorised structure filed a false and frivolous suit on 20th March, 1992. In fact, the said suit was filed to protect the legal rights of the defendants. It is further mentioned in the written statement that it is unfortunate that even the Ndmc and Police have taken sides with the plaintiffs and demolished the kiosk without any show cause notice to the defendants. It has also been mentioned in the written statement that when the said kiosk was not allotted by the Ndmc people to the defendants, how did the Ndmc people acquire any right to demolish the said kiosk

(10) I have heard counsel for the parties and perused the documents filed Along with the plaint and the written statement. Though the defendants have mentioned in the written statement that the kiosk in question has been there even prior to the year 1977 and the same continued and again from 1980 onwards when the written agreement was signed between the parties. This fact has been denied by Mr. Mukul Rohtagi, learned counsel for the plaintiffs. He said that there has been no agreement whatsoever between the plaintiffs and the defendants and it is totally incorrect to say that the rate of rent was determined initially at Rs.450.00 per month and the same was later on enhanced to Rs.600.00 per month.

(11) Mr. Rohtagi further submitted the entire story of increasing the rent from Rs.600.00 to Rs.3000.00 is totally false and has been mentioned in order to establish some legal rights and win the sympathy of the court. The defendants filed a Civil suit no. 119/92 in the court of Senior Sub Judge, Delhi on or about 20th March, 1992. In that suit, not even a word has been mentioned about the written agreement between the parties. In case the agreement had been in existence, the defendants herein ought to have heavily relied upon that agreement.

(12) The conduct of the defendants in placing a totally forged agreement on record is reprehensible. The agreement dated 19.4.80 admittedly is not registered. It seems that the kiosk is totally an unauthorised construction on government land and the Ndmc was well within its rights to have demolished the unauthorised construction on the public street within the territorial limits of the NDMC.

(13) In any event, any kiosk of this kind where cooked food, tea and coffee are prepared and gas and stove are used, such a kiosk cannot be permitted near the petrol pump in the larger public interest. According to the relevant rules, Mr. Rohtagi appearing for the plaintiffs has mentioned that the Indian Oil Corporation vide letter dated 1.4.92 objected and protested to the existence of the aforesaid kiosk and had pressed the defendants to remove the same as it was in contravention and in infringement of the various terms and conditions of the agreement of the plaintiffs with the Indian Oil Corporation.

(14) It is also argued that Indian Oil Corporation had further mentioned that they had found the business involving smoke, flames for cooking purposes, which is in serious violation of the specific rules. M/s Indian Oil Corporation had also threatened the plaintiffs to terminate their agreement if this kiosk was not removed. It is further submitted that Indian Oil Corporation created continuous pressure and tension upon the plaintiffs and was repeatedly asking them to remove the said kiosk failing which the action for termination of the agreement could follow. Therefore, the plaintiffs had to approach the D.C.P., New Delhi the Administrator, New Delhi Municipal Committee and the Lieutenant Governor. The Ndmc has removed the kiosk on 9th April, 1992 because the same was totally unauthorised and illegal and the same could not be permitted on public street near the petrol pump. being violative of relevant rules.

(15) The defendants have not been able to establish the agreement between the plaintiffs and the defendants. The defendants further have failed to file or prove any rent receipt to establish that the defendants were the tenants of the plaintiffs. Shri R.K. Kapur. learned Counsel appearing for the defendants submitted that the kiosk has been removed by the Ndmc at the behest of the plaintiffs. The defendants have been running this business in the kiosk for a long time and they cannot be dispossessed in such an illegal manner.

(16) I have carefully examined the rival contentions, pleadings of the suit and documents on record. It seems that only sometime back permission was given to the defendants to sell only cold drinks, they gradually increased the sphere of their business and started preparing tea, coffee, bread pakora, cheese pakora, etc. from the said site thereby using fire in the form of gas, kerosene oil, stove, etc. and have thus started causing breach of the undertakings and assurances given by them to the plaintiffs. It would be hazardous and dangerous to allow the defendants to further permit them to carry on this business. The defendants had filed a suit on 20th March, 1992 before the Senior Sub Judge Delhi, being Suit No.1l9 of 1992. In that suit. the defendants did not mention about the agreement of April, 1980 between the plaintiffs and the defendants. If in fact the agreement had taken place, then it ought to have found place in the suit filed by the defendant before Senior Sub Judge. As a matter of fact, the agreement would have been the basis of the entire suit. No rent receipt has been filed by the defendants. From the totality of the facts and circumstances of this case, it is abundantly clear that, in fact there has been no agreement between the plaintiffs and the defendants and the agreement has been introduced for the First time before this court by the defendants to establish some legal rights. This conduct itself is sufficient to disentitle the defendants from any relief whatsoever from this court. The defendants in the written statement have prayed that they may be permitted to reconstruct the kiosk at the site, where it was originally constructed. In the facts and circumstances of this case, this permission cannot be granted to the defendants.

(17) Consequently, the plaintiffs suit for permanent injunction is decreed. The defendants are restrained from interfering with the peaceful use and enjoyment of the running of the petrol pump in the name and style of M/s R.K. Service Station, Yashwant Place, Vinay Marg, New Delhi.

(18) In the facts and circumstances. I leave the parties to bear their own costs. The Suit is accordingly disposed of.