Masih Ul Mulk Hakim Ajmal Khan vs Govt. Of Nct Of Delhi And Ors.
2015 Latest Caselaw 3553 Del

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*       IN THE HIGH COURT OF DELHI AT NEW DELHI
+       W.P.(C) No. 8554/2005
        MASIH UL MULK HAKIM AJMAL KHAN            ..... Petitioner
                     Through  Mr. A.J. Khan, Advocate
                                  versus
        GOVT. OF NCT OF DELHI AND ORS.                           ..... Respondents
                                  Through        Ms. Zubeda Begum, Standing
                                                 Counsel for the Govt. of NCT of
                                                 Delhi with Ms. Sana Ansari & Ms.
                                                 Vanessa     Singh,       Advocates
                                                 alongwith Dr. Vivek Bhushan,
                                                 Prof./Vice    Principal,    Tibbia
                                                 College

                                                 Mr. Sandeep Sethi, Sr. Advocate
                                                 with Mr. Anupam Varma, Mr.
                                                 Nikhil Sharma & Mr. Rahul Kinsa,
                                                 Advocates for Review Petitioner/
                                                 BYPL
        CORAM:
        HON'BLE MR. JUSTICE KAILASH GAMBHIR
        HON'BLE MS. JUSTICE HIMA KOHLI

                                           ORDER

%                                          01.05.2015

KAILASH GAMBHIR, J. (ORAL)

Rev. Pet. No. 400/2011

1. The instant Review Petition has been preferred by the BSES

Yamuna Power Limited (hereinafter referred to as 'BYPL') under

Section 114 read with Order 47 Rule 1 and Section 151 of the CPC to

seek review, variation and modification of the order dated 19.07.2006

passed in the present Writ Petition.

2. The main grievance raised by the BYPL/Review Petitioner is that

the said order has restricted the applicant from supplying electricity to

anyone else but for the benefit of Tibbia College Hospital and its other

structure within the Tibbia College Complex and if the said order remains

in force, then it will adversely affect the other consumers in the localities

adjoining Tibbia College who are already suffering on account of

frequent interruptions in the supply of electricity. As per the applicant,

the Grid Sub-station which has been proposed to be installed at Tibbia

College will be a 33 kV Grid Station. The capital expenditure of

installation of the same in the year 2005 was approximately Rs.13.47

crores, out of which the applicant has already spent an amount of Rs.1.39

crores on the civil work and if the Sub-station is restricted in supplying

electricity only to Tibbia College, then it will remain grossly unutilised,

as otherwise, the installation of a 33 kV Grid Station can take the load of

approximately 4000 KW, which can not only meet the requirement of

Tibbia College but can also cater to the electricity requirements of the

residents of the adjoining localities.

3. Addressing arguments in support of the present Review Petition,

Mr. Sandeep Sethi, learned Sr. Counsel submits that the electricity

requirement of Tibbia College is 300 KW while the Sub-station in

question has a capacity of taking a load of approximately 4000 KW. If the

Sub-station is dedicated only to Tibbia College, then it shall be a gross

underutilization of the Sub-station, to the extent of a mere 3% (approx.).

It is pointed out that the Govt. of NCT of Delhi and the Tibbia College

have consented to the use of the present Sub-station for the consumers of

the adjoining areas aswell but with a rider that priority and preference

shall be given to the requirement of Tibbia College. Even the Delhi

Electricity Regulatory Commission (hereinafter referred to as the

'DERC') has opined that usage of the Sub-station only for the

requirement of Tibbia College will be an under utilisation of the

resources.

4. Learned Sr. Counsel gives an assurance that the space which has

been permitted to BYPL within the Tibbia College Complex, will only be

utilised for the installation of the said Grid, and not for any commercial

purposes or as a bill collection centre. He further submits that Quarter

B-1/C, which was earlier being used as bill collection centre by erstwhile

DESU, the predecessor of the applicant, has already been surrendered to

Tibbia College. Based on the above submissions, learned Sr. Counsel

for the BSES/ Review Petitioner strongly urges and fervently prays for

review or modification of the order dated 19.07.2006, so as to remove the

embargo placed on it by the order dated 19.07.2006, prohibiting the

applicant from supplying electricity to other consumers from the

proposed 33 kV Grid Sub-station.

5. In response, Ms. Zubeda Begum, learned Standing Counsel for the

Govt. of NCT of Delhi has referred to the minutes of the meeting dated

26.03.2014 and the affidavits dated 20.01.2012 and 29.01.2014.

6. Opposing the present Review Petition, Mr. A.J. Khan, learned

counsel for the non-applicant/ petitioner submits that there is no change

in the circumstances as were prevailing at the time of passing of the order

dated 19.07.2006 by the Court. He submits that the Government of NCT

of Delhi cannot be allowed to change their stand to come in support of the

applicant for the installation of the 33 kV Grid Station inside Tibbia

College Complex for catering to the needs of the residents of the locality.

Learned counsel also submits that the land of Tibbia College belongs to

the Trust and not to the Government of NCT of Delhi and by taking over

the administration and management of Tibbia College, Government of

NCT of Delhi has not become the owner of the land. It is contended that

if the applicant is allowed to install the said Grid of a high capacity which

could cater to the needs of a large number of the residents of the locality,

it would in itself tantamount to a commercial activity, for which even the

Government of NCT of Delhi has expressed their reservation.

7. We have heard the learned counsels for the parties at considerable

length and have given our conscious consideration to the arguments

advanced by them.

8. The main Petition was preferred by the petitioner (Masih Ul Mulk

Hakim Ajmal Khan), a society registered under the Societies Registration

Act, 1860 by the Registrar of Society, Govt. of NCT of Delhi. At the

time of filing the petition in the year 2005, the following reliefs were

sought by the petitioner:

"a. Issue writ, order or direction in the nature of mandamus or any other appropriate writ, order or direction directing the respondents to cease all activities on the land and premises taken over by the respondents pursuant to Tibbia College Take Over Act, 1997 which are not in the nature of promotion of Unani and Ayurvedic medicine and are against the objects of the society namely Board of Trustees Ayurvedic and Unani Tibbia College, Delhi and against the spirit under lying Tibbia College Take Over Act, 1997, and in particular to cease all construction activities aimed at inducting third

parties on any terms and stop plans for making public car parks on the said land or any other commercial activity.

b. Issue writ, order or direction in the nature of mandamus or any other appropriate writ, order or direction directing the respondents to demolish at their cost any premises constructed or partly constructed for purposes mentioned in Clause (a) above.

c. Pass any other and further order as this Hon'ble Court may deem fit, just and proper in the present facts and circumstances of the case."

9. As can be seen from the prayer para of the Writ Petition, the

petitioner had sought a direction to the respondents to stop all the

activities on the land and premises taken over by them inside Tibbia

College premises, pursuant to Tibbia College Take Over Act, 1997

having come into force and particularly to stop all construction activities

aimed at inducting third parties on any terms and also to stop plans for

making public car parking on the said land or any other commercial

activity. One of the initial orders passed by this Court, dated 09.09.2005

also refers to the aforesaid trepidation of the petitioner apprehending

misuse of land and property of Tibbia College by the respondents. For

better appreciation, the order dated 09.09.2005 is reproduced as under :

"Order 09.09.2005 This petition alleges misuse of the land and property of Tibbia College after its take over by respondent No.1.

Status report was sought from respondent on 18th May,

2005. Today, Ms. Zubeda Begum appeared and submitted some documents to show that some land was given to BSES for setting up of a power grid. This does not satisfy the requirement and we find that functionaries of the respondent government are taking the matter casually by not responding to the court notice and not informing the Court about the correct position of any encroachment or illegal construction going on in the alleged premises.

We are informed that Health Secretary, Govt. of NCT of Delhi is dealing with this. He is put to notice and is directed to file an affidavit in response to this petition indicating any misuse or unauthorised activity going on the alleged premises. The Director of the College is also required to file an affidavit in this regard. One week's time is granted to them for this purpose. Both the officers to ensure compliance and remain present in Court on the next date of hearing.

List on 20th September, 2005.

Dasti."

10. Pertinently, BSES was not made a party in the said Writ Petition.

Vide order dated 20.09.2005, it was directed to be impleaded as one of

the respondents in the Writ Petition. In the status report filed by Tibbia

College, they had stated that the land was allotted by Govt. of NCT of

Delhi to BSES Rajdhani Power Company Ltd. for setting up of a Sub-

station for augmenting the electricity supply to Tibbia College and

Hospital. Since the status report filed by Tibbia College did not clarify

the entire controversy, therefore, a direction was given to the Secretary,

Health to file an affidavit indicating inter alia as to whether the land

attached to Tibbia College and Hospital is owned by the Delhi

Government, whether some portion of it is allotted or rented or handed

over to BSES Rajdhani Power Company Ltd. and whether it is being used

only for raising an electric Sub-station. For ready reference, we may

reproduce the order dated 20.09.2005 as under:

"Order 20.09.2005 Health Secretary, Joint Director and Principal of

Tibbia College are present.

No affidavit has been filed by any of the officers. On the contrary, a status report has been submitted which is signed by the Executive Officer of Tibbia College stating that some land was allotted by NCT of Delhi to BSES Rajdhani Power Company Ltd. for setting up of a Sub-station and for augmenting the electricity supply to Tibbia College and Hospital. This status report does not meet the requirements and Secretary, Health is directed to file an affidavit indicating whether the land attached to Tibbia College and Hospital is owned by the Delhi Government, whether some portion of it is allotted or rented or handed over to BSES Rajdhani Power Company Ltd. and whether it is being used only for raising an electric Sub-station.

Two days time is granted for filing this affidavit. Similarly affidavits should be filed by the Joint Director and the Principal of the College also.

It is submitted that BSES Rajdhani Power Company Ltd. is a necessary party because the land is being used by the company. BSES Rajdhani Power Company Ltd. is, accordingly, impleaded as a party- respondent in this Writ Petition.

Mr. Jauhar waives notice for this company and is also required to file an affidavit indicating the circumstances in which BSES Rajdhani Power Company Ltd. is being allowed to use the land and for what purpose.

List on 27th September, 2005.

Copy of this order be given dasti to counsel for the respondents under signatures of the Court Master of this Court."

11. In compliance of the aforesaid direction given by the Court, the

Joint Director, Tibbia College, Principal Tibbia College and Principal

Secretary, Health Department, Govt. of NCT of Delhi had filed their

respective affidavits. After the Court had found that four questions that

were raised by it had been answered satisfactorily in the additional

affidavit filed by the Govt. of NCT of Delhi, vide order dated 19.07.2006,

the Writ Petition was disposed of. The order dated 19.07.2006 is

reproduced as under:

"Order 19.07.2006 In view of the additional affidavit filed by the respondent/ Govt. of NCT in compliance with the order dated 20.09.2005, the Writ Petition can be disposed of. The four questions which were raised by the Court have been answered satisfactorily. The same are at Page Nos.92 to 94 of the paper book. Leaned counsel appearing for the Govt. of NCT has also stated that no commercial activity shall be taken at 33 kV, Grid Station Building. The BSES has set up the grid to augment the electricity supply to the college and there is no transfer of land in favour of BSES. It has also been stated that already BSES has been instructed to give the electricity supply to Tibbia College Hospital and inside the complex of Tibbia College. In this regard a letter was also written by the Govt. of NCT dated 30.09.2005 to the BSES Yamuna Power Ltd. Counsel appearing for the BSES states that they will augment the electricity supply as they have been given the instructions to do so by the Govt. of NCT, Delhi. We make it clear that BSES is directed not to supply electricity to anyone else except for the benefit of the Tibbia College Hospital and its other structures within the Tibbia College Complex.

The Petition stands disposed of."

12. The last para of the above order is sought to be reviewed or

modified by the applicant herein. The Govt. of NCT of Delhi in the

present case has been vacillating in their stand. In the short reply dated

20.01.2012 filed by the Govt. of NCT of Delhi, their stand was that the

power grid to be installed at the Tibbia College was to be dedicated for

supplying electricity to Ayurvedic and Unani College and also to the

Hospital and the BSES cannot be permitted to supply electricity to the

entire area from the said grid station. The said reply also refers to one of

the meeting which was held on 13.10.2010 in the chamber of the

Secretary, Health & Family Welfare Department, Govt. of NCT of Delhi

wherein a decision was taken that Tibbia College would not have an

objection if the additional electricity is distributed to the other consumers

in the adjoining areas, after the requirements of the Institution are fully

met by the BSES. Then again, the decision arrived at in the said meeting

was reviewed and it was decided that the electricity to be generated from

the electric sub-station at Tibbia College will be used only to meet the

power requirements of the Institution and not for any other purpose.

13. During the pendency of the present Review Petition, further

meetings were held by all the stakeholders so as to discuss and bring a

possible resolution to the issue of installation of 33 kV Electric Grid Sub-

station at A&U Tibbia College. Tibbia College was a party to the said

meeting. The minutes of meetings dated 12.11.2013 and of 26.03.2014

are important in this regard and the same are reproduced as under:

"Minutes of meeting held on 12.11.2013 regarding the matter of 33 kV Electric Grid sub-station established at A&U Tibbia College.

A meeting was held on 12.11.2013 to discuss the possible resolution of the issue regarding electric grid sub-station at A&U Tibbia College. The following members attended the meeting.

1. Sh. Ankur Garg, Additional Secretary, Power Department,

2. Ms. Zubeda Begum, Standing Counsel (Civil), GNCTD,

3. Sh. Sanjay Gihar, Director (ISM&H),

4. Sh. Madhusudan, Dy. Secretary, Power Department

5. Ms. Geeta Grover, Esecutive Officer, A&U Tibbia College

6. Dr. Vivek Bhushan, Estate Officer, A&U Tibbia College

The above meeting was a sequel to the earlier meetings held on 13.06.2013 and 16.07.2013 with Power Department, Standing Counsel (Civil), Director (ISM&H) and A&U Tibbia College. Representatives of Masih-ul-Mulk Hakim Ajmal Khan Memorial Foundation were present and contributed to discussions in the first meeting.

It was noted that electric grid sub-station was steup on land admeasuring 1350 square meter at A&U Tibbia College in the year 2004 but could not be commissioned. The sub- station at Tibbia College is meant to transmit the electricity received from elsewhere in the grid. Electricity is a public good which, by its nature, cannot be stored. This 33/11 kV transformer of A&U Tibbia College is a transmission substation that does not generate electricity. Also in the particular case, resources has been invested by the agency in which Govt. has substantial share holding. So the present deadlock is leading to wastage of public resources.

Based on the broad understanding of the issues arrived at in the above meetings, the following action points were suggested:

(1) BYPL will unconditionally hand over to A&U Tibbia College vacant possession of 2 residential units occupied by them present in A&U Tibbia College campus.

(2) ISM&H Department will transfer only physical possession of the Sub-station land to Power Department for use of sub- station but the said land will permanently remain in ownership of A& U Tibbia College.

(3) Power Department will allow the use of the above land to BYPL on licensee basis, for grid substation and BYPL will not utilize the premises for commercial purposes. (4) The A&U Tibbia College, including hospital, hostel, residential quarters etc. will have the first charge of right on the power supplied through the sub-station. (5) Service charge as per Govt. prevailing rates shall be payable by BYPL.

It was recognized by all present that A&U Tibbia College, while availing of the stable power supply facility from this sub-station, would be saved of investing separately in dedicated line separately required by it otherwise.

Keeping the overall perspective in view, it was felt, that the stand of department taken on the issue through the affidavit submitted in the Hon'ble High Court in the case needs to be suitably clarified with due approval of the competent authority, and a common stand adopted by the Department of H&FW and Department of Power, GNCTD.

The meeting ended with a vote of thanks to the chair.

Sd-

(SCL Das) Secretary (H&FW) No. F.8(47)/79/TC/P-III/ 3554 dated 3/12/2013 Copy for information and necessary action to:- (1) PS to Minister (Health & Family Welfare), GNCTD (2) PS to Secretary (H&FW), Delhi Secretariat, GNCTD, Delhi (3) Sh. Ankur Garg, Additional Secretary, Power Department, Delhi Secretariat, GNCTD, Delhi (4) Zubeda Begum, Standing Counsel (Civil), GNCTD, (5) Sh. Sanjay Gihar, Director (ISM&H)

(Geeta Grover) Executive Officer

"Minutes of meeting chaired by Sh. Arun Goyal, Pr. Secretary (Power) on 26.03.2014 at 12.30 AM to discuss the issue of Court case in the matter of Review Petition No.400/2011 in W.P. (C) 8554/2005, tiled as Masih- Ul-Mulk Hakim Ajmal Khan Memo, Foundation v GNCTD & Ors. (i.e. A&U Tibbia College)

A meeting was held on 26.03.2014 to discuss the issue regarding electric grid sub-station at A&U Tibbia College. The following officers had attended the meeting.

                 (1)     Sh. S.C. L. Dass Secy. (H&FW)
                 (2)     Sh. Sanjay Gihar, Director (AYUSH)
                 (3)     Dr. K.K. Sijama, Tibbia College
                 (4)     M.Geeta Grover, E.O., Tibbia College
                 (5)     Sh. A.K. Sharma, Head (O&M), BYPL

There are some points raised by BYPL in their affidavit, which are contrary to the facts submitted in the compliance affidavits of Government. While submitting reply to the affidavit, under mentioned contentious issues need to be addressed as soon as possible.

(a) In the Departmental affidavit at para 4(a) it had been suggested that BYPL will unconditionally handover the vacant possession of 2 residential unit of A&U Tibbia College Campus occupied by them to the College Authorities. Whereas BSES in their affidavit at para 3(a) stated that they occupy only one residential unit and placed sought leave of Hon'ble Court to provide service to its consumers and facilitation of the existing arrangement for Bill payment from the proposed Grid Station.

(b) Though in the Departmental affidavit at para 4(c) it had been suggested that BYPL will use the land for grid sub- station and will not utilise the premises for commercial purpose. Whereas BYPL in their affidavit, on the pretext of public and consumer interest, sought leave of Hon'ble Court for facilitation of the existing arrangement for Bill payment from the premises of the proposed Grid Station.

(c) Department in its affidavit at para 4(e) suggested that service charge or any other Municipal taxes as per Govt. prevailing rates shall be payable by BYPL. But BYPL submitted at para 3(f) that they will address the issue of payment of service charges in accordance with law and its status of being a licensee to the properties handed over to the GNCTD under the provisions of the Delhi Electricity Reforms (Transfer

Scheme) Rules, 2001.

Following was discussed during the meeting:-

i) BYPL stated that they are having the physical possession of only one quarter, numbered B-1/C, which is being used as a bill collection centre. The other quarter No.B-2/13, which was allotted to Chief Acctt, DESU is not under the possession of BYPL as per their record. It was agreed by the officers of Tibbia College also that, this quarter is locked and they will take the further necessary action in this regard.

ii) Regarding the point (b) above, BYPL stated that their bill collection centre, which is operational in the campus of Tibbia College in the above referred quarter, which facilitates approx. 7500 consumers of nearby locations and a monthly collection of Rs. Four crores is done on monthly basis. However, BYPL agreed that they will shift this centre out of the campus of Tibbia College within 2-3 months time after the identification of new place as per the convenience of the consumers. Pr. Secretary (Power) asked BYPL to take immediate action to shift bill collection centre to new premises.

Meeting ended with a vote of thanks to chair.

Sd-

(Alka Sharma) Dy. Secretary (Power) No. F.8(47)/79/TC/P-III/1098 dated 02/04/2014

Copy for information and necessary action to:- (1) Secretary (H&FW), Govt. of NCT of Delhi (2) CEO, BYPL (3) Director (AYUSH) (4) Zubeda Begum, Standing Counsel (Civil), GNCTD,

Copy to:

Sr. PA to Pr. Secretary (Power)"

14. On a perusal of the decisions taken in the meetings held on

12.11.2013 and 26.03.2014, it is manifest that in the year 2004, land

admeasuring 1350 sq. meter was handed over to BSES at A&U Tibbia

College for setting up of a 33 kV Electric Grid Sub-station. The Sub-

station at Tibbia College is meant to transmit the electricity received

from elsewhere in the grid, and therefore, the same is the transmission

Sub-station that does not generate electricity. The applicant has already

spent an amount of Rs.1.39 crores for undertaking necessary civil work

and as per the applicant, a total cost of Rs.13.47 crores is involved

towards the installation of the 33 kV Grid Sub-station, as was assessed in

the year 2005.

15. The applicant has already taken various steps in terms of the

decision taken in the said meetings. The main apprehension of the Govt.

of NCT of Delhi was that the applicant may utilise the premises for

commercial purpose and same was the apprehension of the petitioner, as

can be seen from the averments of the Writ Petition and the reliefs prayed

for. This apprehension as expressed by the petitioner and the Govt. of

NCT of Delhi has been suitably dispelled by the applicant by making a

categorical statement that under no circumstances will it use the said

space either for any commercial purposes, or for setting up of a bill

collection centre.

16. The applicant has also given a statement that they will give due

priority and preference to Tibbia College for their electricity requirement

and therefore, the rights of the Tibbia College and the occupants within

the complex will not be compromised on the construction of the 33 kV

Sub-station. We fail to comprehend that once the applicant is able to

meet the requirements of Tibbia College, what advantage would the

petitioner gain if the said 33 kV Sub-station remains underutilized and is

singularly dedicated to catering to the requirements of Tibbia College.

This is all the more relevant when the said Sub-station can take the load

of 4000 KW approximately and can easily cater to other consumers in the

neighbourhood, whereas the requirement of Tibbia College is as

miniscule as 300 KW, i.e., 3% of the electricity generated.

17. Before we rest the case, it is imperative to lay an emphasis on the

role that electricity plays in our lives and how the life blood of the

economy i.e. electricity, should be optimally utilised. The famous

author, Oliver Rendchen had once said, electricity is our way of life and

without it, many would perish. Invention of electricity is one of the

greatest wonders. One can't fathom living in the absence of electricity.

There is hardly any walk of life where the importance of electricity is not

felt. It is one of the most powerful forces in our lives. As the well known

American comedian, George Gobel had said - "If it weren't for

electricity, we'd all be watching TV by candlelight". Therefore, it is of

utmost importance that electricity be used advantageously and to its

optimum capacity and it should be evenly distributed across the

populace.

18. In the light of the above position and keeping in mind the larger

interest of the residents of the localities adjoining to the Tibbia College

and also considering the fact that under no circumstance shall the interest

of the Tibbia College be compromised, we modify the order dated

19.07.2006 to the extent that the 33 kV grid station can be used to cater

to the load requirement of the residents of the adjoining localities, with a

rider that due priority and preference shall be given to Tibbia College for

their electricity requirements and that the rights of Tibbia College and the

occupants within the complex will be given primacy over others.

19. The review petition is accordingly allowed and disposed of.

KAILASH GAMBHIR, J.

HIMA KOHLI, J.

MAY 01, 2015 v/sk