Sanjeev Sonia Industries And Ors. vs Phool Chand And Ors.
2001 Latest Caselaw 1687 Del

JUDGMENT

V.S. Aggarwal, J.

1. M/s. Sanjeev Sonia Industries and Ors. have filed the present suit for possession, permanent injunction, recovery of mesne profits and declaration. It has been asserted that the plaintiffs M/s. Sanjeev Sonia Industries and four others are the perpetual lessees of plot No. A-138 situated in Wazirpur Industrial Area, near Tool Room and Training Centre, Wazirpur Industrial Area. The Delhi Development Authority had announced auction of various plots in Wazirpur Industrial Area including the above said plot. The plot was put to auction. Plaintiff No. 1 through its partners was the highest bidders. The bid of the plaintiffs was accepted. The plaintiffs in pursuance of the order deposited the earnest money amounting to Rs. 20,875/- on the spot. The plaintiffs were called upon to deposit the balance amount of Rs. 62,735/- and it was deposited on 15th June, 1973. After receiving the total amount towards the bid amount defendant No. 2 (Delhi Development Authority) intimated the plaintiffs for handing over the possession. A perpetual lease deed was executed dated 14th January, 1986. The plaintiffs had set up a barbed wire boundary along the wall.

2. The grievance of the plaintiffs is that the defendant No. 1/1 to 36 in connivance and collusion with the local politicians and leaders have occupied the said plot and constructed huts on it. They have been assuring the plaintiff but have not vacated the premises. Because of the encroachment the plaintiff could not set up the construction on the said plot. The plaintiff made requests to be police and even to DDA but without any effect. The plaintiff claims that they have illegally been deprived for the possession of the said plot. Hence the civil suit has been filed for declaring the plaintiffs are the lessees with exclusive right of possession of the plot referred to above. It is also claimed that decree be passed against the defendants 1/1 to 36 to hand over vacant possession of the said plot to the plaintiff. Further directing defendant No. 1/1 to 36 to pay mense profits to the plaintiff and plea has also been raised to direct the Delhi Development Authority to take proceedings against defendant No. 1/1 to 36 for illegally occupying the plot and directing defendant No. 3 i.e. Delhi Electricity Supply Undertaking to disconnect the electricity and remove the poles and pillars from the plot.

3. In the written statement filed by defendant No. 2, Delhi Development Authority, it has been pleaded that it is not aware if defendants 1/1 to 36 is in possession of the plot and if so under which capacity. It is not in dispute that lease alleged by the plaintiffs was executed and possession had been delivered. However, the DDA pleaded that the plaintiffs had violated the terms of Clause II (4)(9) of the Lease Agreement. Notice of 10th November, 1987 was served on the plaintiff stating that if building is not constructed the lease shall be determined.

4. Written statement has further been filed by defendants 1/1 to 36. It is denied that they are trespassers. It was pleaded by the said defendants that they migrated from their home villages in different districts in same state or from different States out of sheer distress arising out of their individual distress circumstances. These persons have found some work in nearby industrial units and other establishments like cement godown etc. and therefore, they occupied the premises but they cannot be termed as trespassers but helpless human beings. They are entitled to alternative government plots.

5. The Delhi Vidyut Board, defendant No. 3 also filed a separate written statement. It is denied that the Municipal Corporation had acted illegally or exceeded its jurisdiction. It was admitted that electricity poles for providing street lights have been installed in the plot but no electric connection was stated to have been given to any of the individual. It was admitted that several jhuggies have been constructed on the plot in question. On 19.4.1995 defendants 1/1 to 36 were proceeded ex parte. Learned counsel for the plaintiffs stated that no relief is sought against defendant No. 2. As against Municipal Corporation of Delhi this court framed the following two issues:

1. Whether the suit against defendant No. 3 is not maintainable as pleaded in paras 1 and 2 of the preliminary objections?

2. Whether the plaintiff is entitled to grant of mandatory injunction against defendant No. 3 to disconnect the electricity and remove the polls of the electricity and remove the polls of the electricity and remove the polls of the electricity on flat No. A-138 Wazirpur Industrial Area, New Delhi? If so its effect.

3. Relief.

6. The evidence had been led by filing of the affidavits.

7. Delhi Development Authority has admitted in the reply that the plaintiff firm through its partners was given a perpetual lease with respect to plot in question. Lease deed had been executed and registered. The said lease deed is also on the record as Ex. PW 1/21. This clearly shows that the plaintiff is perpetual lessee and therefore has a right to claim the possession.

8. So far as defendant 1/1 to 36 are concerned in the written statement themselves they have not claimed in right. If they claim any alternate or any alternative plot it cannot be enforced against a private individual like the plaintiff. Therefore when the plaintiff is the perpetual lessee and defendants 1/1 to 36 are in occupation without any right, title or interest obviously the plaintiff is entitled not only to a declaration but also for possession of the said plot.

9. Plaintiff also claims mesne profits/damages against defendant 1/1 to 36. But there is little evidence on the record as to what would the normal payment for occupation of such a plot. The same cannot be arrived at on guess work. In the absence of any specific evidence on that account of similar premises so far as this claim is concerned it must fail.

10. As against the Municipal Corporation of Delhi relief of the plaintiff is to a mandatory injunction to disconnect the electricity and remove the poles and pillars. Indeed if electricity has been given to the persons in occupation the plaintiff cannot have any grievance in this regard. It is not his case that the sanction of electricity has been without his consent. So far as the poles and pillars are concerned it is not shown by the plaintiff as to when defendant No. 3 had made encroachment by installing electricity poles on the plot. There is precious little evidence to show that procedure as such as prescribed in law has not been followed while installing poles etc. In the absence of it being so shown it is not possible for the court to grant the mandatory injunction.

11. For these reasons suit as against Delhi Development Authority keeping in view of the statement made on 19.4.1995 is dismissed. Suit is also dismissed against defendant No. 3 for the reasons recorded above.

12. It is decreed for a declaration that plaintiffs are the perpetual lessees of the plot mentioned above and it is also decreed for possession of the same against defendants 1/1 to 36. Suit for mesne profits also fails and is dismissed.