Essex Farms Pvt. Ltd. And Anr. vs Delhi Transport Corporation
1995 Latest Caselaw 701 Del

JUDGMENT

Devinder Gupta, J.

(1) These are two applications, one by the plaintiffs under Order 39 Rules 1 and 2 of the Code of Civil Procedure (in short "the Code") for injunction directing the defendant to provide access to the plaintiffs, their agents, employees, patrons and other visitors to/from the South gate of the property on the street connecting Panchsheel Marg and Azad Apartment/Kalu Sarai Road and restraining them from, in any manner, interfering with and/or obstructing ingress and egress of the plaintiffs from the South gate up to the public street. The other application is under Order 39 Rule 4 of the Code filed by the defendant for vacating the ex parte order of injunction which was granted in mandatory form.

(2) The plaintiffs in the suit have alleged that plaintiff No. I and late Shri R.N. Goyle owned and possessed the premises bearing No. 4, Aurobindo Marg, New Delhi. Plaintiff No. 2 is one of the heirs of Shri R.N. Goyle. Plaintiff No. I is engaged in the business of manufacturing, processing and sale of food products and other allied products, retail outlet therefore, restaurant, conference facilities/banquet hall etc. from the property in question, which comprises of approximately 12,000 sq. yards and is open on three sides. On the North side the property opens to Aurobindo Marg (Mehrauli road); on the South side it opens unto a street connecting Panchsheel Marg(OuterRingRoad)and Azad Apartments/Kalu Sarai Road; (hereinafter referred to as "the Street") and on the East side it abuts a green area Along with the Panchsheel Marg. It is also claimed that plaintiffs are running a service oriented business for which unobstructed access to public roads is of vital importance especially considering the fact that the number of their patrons averages over 450 per day. For the last about four decades plaintiffs primarily have been using two gates, one opening on the Aurobindo Marg on the North of the property and to the road connecting to Panchsheel Marg on the South side.

(3) The dispute according to the plaintiffs as regards the South side gate which according to the plaintiff is very vital for its business, considering the fact that Aurobindo Marg is a heavy traffic main road, which is also part of Vip traffic movement. It is alleged that on the south side of the property, plaintiff had a heavy duty gate and has properly illuminated the area with halogen lights etc. for the convenience of those visiting the property. The gate in question has always been used as ingress and egress unto and from the property. Street towards South has always been and even presently been used by pedestrians, cyclists and all kinds of vehicular traffic for going to/from Panchsheel Marg and Kalu Sarai as a street. Even in the Revenue Records, the property of the plaintiffs has been shown to be comprising of Khasra Nos-127, 128, 131,286/133 and part of Khasra No. 126 i.e. 321/126and322/126 of which Khasra No. 127and286/133abutand open unto the street which is on the south side. Khasra No. 131 abuts and opens to Aurbindo Marg on the North side.

(4) It is further alleged that defendant is in occupation of property adjacent to and sharing a common boundary with the property on the North West side where there is a bus depot. Some time back, it is alleged, that defendant unauthorisedly and illegally encroached upon the street by constructing a super structure at the mouth of the street on the Western side, facing Azad Multi-storied Apartments up to Khasra No. 127 belonging to the plaintiffs on the South side. There is an entry point on the Azad Apartments/Kalu Sarai Road which is used by pedestrians, cyclists and vehicular traffic as an entrance to the street.

(5) In the morning of 18th April, 1995, it is alleged that 25 to 30 officers/ employees of the defendant, armed with lathis and iron rods, broke into the property of the plaintiffs from the south gate. This mob alleged to have been guided by Mr. Gupta, General Manager (T), who caused severe damage to the property and threatened the plaintiffs' employee with dire consequences. They also threatened to damage facilities of plaintiffs in the property including the restaurant and banquet hall etc. Part of the plaintiffs' gate on the south side was torn away by the defendant along with numerous other fixtures and fittings including halogen lights and sound system. For some time past, defendants have been threatening the plaintiffs that they would block plaintiffs' access through the South gate to the street onwards to Panchsheel Marg. Defendant is also desirous to encroach upon the entire street for its own use thereby depriving the plaintiffs of their right to use the street. Despite the fact that police had intervened in the matter on 18th April, 1995, the defendant again sought to take law into its hands by blocking and obstructing the South gate of the property by putting up right in front of it, a wooden kiosk on a steel frame. The matter was reported to the police by the plaintiffs who had the defendant's employees to shift the said kiosk to the side so as not to obstruct plaintiffs' access to and from the South gate. In the evening of 21st April, 1995, about 60 to 70 defendant's officers/employees after threatening plaintiffs' staff forcibly constructed a wall which has barricaded the South gate and put up barbed wire fencing, sand bags and the wooden kiosk which they had attempted to put. It is alleged that defendant has thus completely blocked/ obstructed plaintiffs' access to the street thereby causing grave damage to plaintiffs' interest including their business. In this background, plaintiffs have claimed a decree in the suit against the defendant for declaration that plaintiffs have a right to access to and use the street abutting the South gate of the property bearing No. 4, Aurbindo Marg, New Delhi, which street connects Panchsheel Marg and Azad Apartments. Decree for permanent injunction has also been claimed restraining the defendants from interfering or obstructing ingress and egress and mandatory ' injunction for removal of the wall constructed by defendant on 21st April, 1995 along with barbed wire fence, sand bags and kiosk barricading.

(6) The suit came up before the Court on 24th April, 1995. On the interim application moved by plaintiffs, keeping in view the allegations made, an ex parte order of injunction in mandatory form was issued directing the defendant to provide access to the plaintiffs from the South gate by making an opening in the wall of 3 ft. width.

(7) Defendant filed written statement and moved an application for vacation of ex parte order of injunction. Defendant has not disputed plaintiffs' ownership as regards 4, Aurbindo Marg or the factum of the activities being carried on by the plaintiffs in their property. Defendant has claimed that land with an area of 1.62 acres, shown as red in the plan attached to the written statement and depicted as khasra Nos. 321/126,322/126,326/2(part), 398/137 (part) and 285/133/2/1 was allotted to the defendant for construction of bus Stand/Terminal opposite 1.1.,T. on Mehrauli road near Essex Farms. After payment of the value of the land to Delhi Development Authority (in short "DDA"). the defendant received possession of the same on 13th March, 1974, as per DDA's Lay Out Plan, which has also been attached as Annexure-B to the written statement. Payment of the land is stated to have been made through letter dated 31st July, 1970. Subsequently, the rate of the land was revised. Intimation to hand over possession was given by the Dda through letter dated 28th February, 1974 and possession according to defendant was taken from the Dda on 13th March, 1974. It is alleged that in the year 1982 before the commencement of the Asian games the defendant decided to develop this plot for the purpose for which the same had been acquired and purchased from the Dda, namely, construction of Bus Terminus. It is further alleged that boundary wall around the plot was erected in 1982 and further construction comprising of Pass Section Building together with other facilities like toilet, bus shelter etc. were completed. On the outer Ring Road side two gates were put up for entry and exit. On the Azad Apartments side, only a wicket gate of about 4ft width was provided for ingress and egress of the employees of the defendant and the commuters.

(8) The defendant has alleged that no gate of the plaintiffs ever opened on to the land of the defendant till 17th April, 1995. Various bus routes commence from and terminate at this Terminus and the area is being used for parking of buses. At night also the buses used to be parked since there was Portage of space in the nearby depots. Both front and rear gates providing ingress and egress to the land used to be closed at night. In the year 1992, Delhi Tourism and Transportation Development Corporation Ltd. undertook the work of construction of fly-over at Sri Aurobindo Marg, Outer Ring Road inter Section and for that purpose it suggested modifications to be made in the Hauz Khas Bus Terminus of the defendant. Suggestions were communicated to the defendant through letter of Dttdc dated 5th June, 1992. These suggestions were made since the entry of the buses upon, construction and completion of the fly-over would not have been possible from the Outer Ring Road Side. Modifications as proposed were accepted by the defendant through letter dated 28th August, 1992, in consultation with D.C.P. (Traffic) and thereafter for entry of buses into the Terminus, a gate was provided at the rear side, opposite to Azad Apartments. Residents of Azad Apartments objected to the errection of the gate from the side of their building and made complaint to the Minister for Surface Transport on 10th September, 1992. A telegram was also sent by them on 12th September, 1992 slating that defendant be not permitted to open the gate in front of their Apartments. It is also alleged that similar complaint dated 10th September, 1992 was made by Navketan Co-operative Group Housing Society Ltd. Copies of all these documents have been placed on record.

(9) As regards the incident of 17th April, 1994, the defendant has alleged that the plaintiffs, with a view to encroach upon and to have an opening on to the land of the defendant, attempted to break a portion of that boundary wall which had been errected by the defendant around the entire Terminal. They in fact caused damage to the wall and broke the same. The matter was reported by the security staff of the defendant to the high officials on the same day, namely, 17th April, 1995. A report against such illegal acts on the part of the plaintiff was also given by the staff members of the defendant to the Station House Officer, Police Station, Malaviya Nagaron 18th April, 1995. It was reported that the employees of Essex Farms Pvt. Ltd. were breaking the boundary wall of the defendant and have attempting to put upagate there. A request was made to take necessary action to prevent the illegal acts.

(10) Subsequent to this complaint, another letter dated 20th April, 1994, in support of defendants title over the boundary wall and the land in question was sent to S.H.O. Police Station Malaviya Nagar, as per the lator's desire. The police authorities after satisfying defendant's title and existence of the wall helped the defendant to re-build the broken portion of the wall and to repair the same on 21st April, 1995.. Plaintiffs did not desist from its illegal designs to have an entry through the defendant's land and to utilise the same for parking of vehicles of their customers during night and with a view to achieve this illegal design, attempted to break open the wall. In order to set up a false story that the defendant had recently built the wall to block the entry of the plaintiffs into the ad joining land, the plaintiffs had errected a gate on their own land behind the wall, whereas no such gate existed earlier. After repairs of the wall on 21st April, 1995, a report was again lodged by the defendant with Police Station Malaviya Nagar expressing apprehension that plaintiffs might again break and damage the same. In this back ground it is alleged by the defendant that plaintiffs had no entry from the defendant's land, as alleged, from the alleged Sou th gate. No such gate ever existed till 17th April, 1995. The wall which had been errected in 1992 was broken by the plaintiffs to create an opening. Defendant has disputed that any part of its property is or has been used as a street.

(11) Parties placed reliance upon number of documents which they had filed along with their respective pleadings and addressed lengthy arguments.

(12) Learned Counsel for the plaintiff urged that street connecting Aurvindo Marg and Azad Apartments is 'a street' which has been shown as such in the Revenue Records to which presumption of correctness is attached. No public document, including Revenue Records, have been produced by the defendant to rebut this presumption. Land for which amount is alleged to have been paid by the defendant and of which possession is alleged to have been taken is different from the land which was subsequently allotted to the defendant. Plaintiffs always had a South gate of their property adjacent to the street from which the plaintiffs, their agents, employees, patrons and visitors had an access to and from the street. This street has been used for the past many decades and till 22nd April, 1995 had been used by the pedestrians, cyclists and vehicular traffic for going to and coming from the public road. Because of the closure of the gate by the defendant, the plaintiffs are likely to suffer irreparable loss and injury, which it is not possible to compensate. In view of the documentary evidence, plaintiff has got a very got prima facie case and injunction in mandatory form as prayed and granted deserves to be confirmed and further prohibitory injunction deserves to be granted restraining the defendant from interfering with the plaintiff's right of access to the street.

(13) Learned Counsel for the defendant submitted that ever since the defendant was put in possession of the property, no part of the same has been used or utilised as a street, either by the plaintiffs or by others, as alleged by the plaintiffs. Alleged South gate was not at all in existence. The plaintiff never had any access to or through any part of defendants' property. From 1982 onwards, the defendant started developing the property. One of the steps in developing the property has * been to enclose its property by erecting a wall. The two side gates provided by the defendant used to remain closed during night and opened during day time. For the first time an opening was created in the wall on 17th April, 1995 by the plaintiffs and with a view to claim a right overdefendant's property and to set up a false story the plaintiffs started putting up an old iron gate to the other side of the wall in its property. Learned Counsel for the defendant in sUpport of his submission about the existence of the wall has pointed out one of the photographs produced on record by the plaintiffs, namely, photograph shown as No. 17(B) on page 21 of the documents. It is contended that prior to creating of this opening in the wall, on 17th April, 1994, which continued from 17th April, 1995 till 21st April, 1995, there was neither any gate inside the wall nor any opening in the wall. It is further contended that though in the Revenue records, part of the land allotted to defendant and in defendant's possession has been described as a street, but such description in Revenue Record is meaningless especially, after the land was taken over by the Dda for development purposes. Though nature of a part of the property is described in the Revenue Records as a street, but on the spot, position is otherwise. No part of the property has been utilised as a street, eversince defendant came in possession of the property. Such entries in the Revenue Records are only conventional and cannot be relied upon for the purposes of showing that after the land had been taken over by Dda, the nature of the same continues to remain the same, as was described in the Revenue records. It has further been contended that on the date of filing of the suit there was no opening in the wall and in the facts and circumstances of the case, mandatory injunction ought not to have been granted, which deserves to be vacated.

(14) As noticed above, the suit was instituted on 22nd April, 1995 and it came up before the Court on 25th April, 1995. It has been urged by the plaintiff that on 17th April, 1995, defendant obstructed and blocked plaintiffs' access to and from South gate of the property by putting up a wooden kiosk in front of it, which was got shifted to one side, adjacent to the gate in question. Again on 21 st April, 1995, defendant's officers and employees constructed a wall, which has barricaded the South gate of the property on to the street and also put up barbed wire fencing. Sand bags and wooden kiosk have been kept by the defendant thereby blocking/ obstructing plaintiffs' access to the street. After making these allegations, plaintiff has in the suit prayed for a decree for mandatory injunction directing the defendant to remove the obstruction and allow access to the plaintiff through its South gate.

(15) In the application for interim injunction also a prayer has been made for grant of mandatory injunction in the same form. The point to be decided is whether in the facts and circumstances of the case, plaintiffs would be entitled to mandatory injunction in the form in which it is prayed, during the pendency of the suit. The law with regard to ad interim injunction is well settled. It is only in very rare cases that mandatory injunction is granted on an interlocutory application. Injunction itself is a form of an equitable relief. If a mandatory injunction is granted on an interlocutory application, it is granted only to restore the status quo and is not granted to establish a new state of things, from the state which existed at the date, when the suit was instituted. This principle, noticed in a judgment of a Division Bench of Calcutta High Court in Nandan Pictures Ltd. v. Art Pictures Ltd. and Others, , was approved by the Apex Court in Dorab Cawasji Warden v. Coomi Sorale Warden, , wherein the guidelines evolved in granting such injunction in some English and Indian decisions were reiterated saying saying :- "THE relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm. Courts have evolved certain guidelines. Generally stated these guidelines are: (1) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie that is normally required for a prohibitory injunction. (2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money. (3) The balance of convenience is in favor of the one seeking such relief."

(16) It was also observed that the guidelines are neither exhaustive nor complete or absolute rules and there may be exceptional circumstances needing action. Being essentially an equitable relief, the grant or refusal of an interlocutory mandatory injunction shall ultimately rest in the sound judicial discretion of the Court to be exercised in the light of the facts and circumstances of each case.

(17) Applying the principles and taking into consideration the guidelines and the facts and circumstances of the case, the plaintiffs' application would be liable to be dismissed. As per the allegations made in the plaint, the alleged gate already stood closed by the errection of wall by the defendant before the institution of the suit. Assuming that jurisdiction is vested in the Court even to grant mandatory injunction on an interlocutory application in such cases where the grant of injunction will have the effect of establishing a new state of things which existed from the date when the suit was instituted, such as in the present case, namely, by directing the defendant to make an opening or remove the blockade so as to enable the plaintiff to use of the passage, even in that case the circumstances of the case are such in which plaintiff will not be entitled to equitable relief. According to the since against plaintiffs' own showing there is another main gate, opening on the Aurbindo Marg, from which customers can approach the plaintiffs' property. There cannot be a question of irreparable loss or injury, which normally cannot be compensated in terms of money.

(18) Even on the question of existence of prima facie case, in view of various documents placed on record I do not find that the plaintiff has been successful in establishing the same for grant of mandatory injunction, what to say of a strong case. Though there is some difference in the plans produced on record as regards the property for which price is stated to have been paid by the defendant on allotment and of which the defendant is stated to have been put in possession, but that alone will not go to establish that prima facie case has been made out for grant of injunction. From the documents on record produced by the defendant, it can safely be inferred that defendant started development of the property in the year 1982 and prima facie it appears that defendant had enclosed its property, which is in its occupation by a boundary wall. Photographs on record do suggest that continuous wall existed without any opening in front of the alleged South gate. The photograph 17(b) at page 21 of the documents filed by the plaintiff fortifies the contention of the learned Counsel for the defendant that the wall was continuous 481 and had simply been broken at a place in front where the gate is shown to be in existence. It also fortifies the stand taken by the defendant that on 17th April, 1995, plaintiffs started breaking the wall with a view to create an opening and behind the wall, a gate had been errected earlier with a view to lend support to its case that gate already existed at that side. The nature of the wall on either side of the gate as also the existence and nature of the pavement at the place negatives the plaintiff's case of the existence of gate in question or use of this gate by the plaintiffs for the alleged purpose. Had the gate been in use by the plaintiff, there was no question of there being any pavement as is reflected in photograph 17(d) at page 25.

(19) There is no dispute that since land adjacent to plaintiff's property was allotted to the defendant by Dda after the same stood vested in the Dda on acquisition. Plaintiff has placed reliance upon entries in the Revenue records and it is contended that presumption of correctness is attached to the entries in the Revenue records, wherein the land in front of the gate is depicted as a street. Such a contention deserves to be repelled. There cannot be a question of continuation of such presumption, after the land stands acquired for development purpose in a city like Delhi, which is fast expanding city. After acquisition, continuance of the entries in Revenue records is only conventional and cannot be of any help or assistance in the matter of proof on the question of existence of any public street. Such submission made by the learned Counsel for the plaintiff would stand negatived, in case reference is made to the Aksh Shajra, which is at page 6 of the documents filed, on which reliance was placed during the course of arguments by learned Counsel for the defendant that on either side of the disputed property, the land already stands developed by errection of multi-storied apartments known as Azad Apartments. In case portion as shown in Aksh Shajra as street on either side of the land in possession of the defendant already stood developed, there is no question of presumption being attached to the entries in the Revenue records that this portion despite acquisition continues to retain its identity as a street.

(20) No doubt the plaintiff is carrying on its business activity on the property owned by it, but merely carrying on of business will not give rise to a presumption that there was an entry or passage available to its property from the alleged South gate. At this stage of the proceedings letters or certificates issued by various individuals, copies of which have been produced on record by the plaintiff, cannot be made use of by the plaintiff, wherein it is sought to be shown that those individuals had been making use of the alleged South gate, since such documents are not admitted and have yet to be proved during the course of trial. No presumption is attached to such letters or certificates. There is also no question of any irreparable loss or injury being caused to the plaintiff. Loss or injury, if any, occasioned, can very well be compensated in terms of money. Since there is an approach available to the plaintiffs' property from the front side, which is the main gate, balance of convenience also does not tie in grant of injunction.

(21) Accordingly, injunction granted deserves to be vacated. Plaintiffs' application deserves to be rejected by allowing defendant's application. Ordered accordingly.

(22) Since on the basis of an ex parte order of injunction, plaintiffs were permitted to create an opening in the wall in question, as result of dismissal of plaintiff's application, it will be permissible for the defendant to re-erect the wall and carry out necessary repairs thereto so as to maintain status quo as it existed on the date of institution of the suit. Stay vacated.