Delhi High Court

Gurnam Kaur vs Bses Rajdhani Power Ltd. & Ors on 14 July, 2016

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*        IN THE HIGH COURT OF DELHI AT NEW DELHI
+        CS(OS) 2691/2015
         GURNAM KAUR                                           ..... Plaintiff
                               Through: Mr. Sameer Vashisht, Adv.

                               versus

         BSES RAJDHANI POWER LTD. & ORS.           ..... Defendants
                      Through: Mr. Deepak Pathak for D-1&3.
                      Mr. Jayendra, Adv for SDMC.

         CORAM:
         HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
                      ORDER

% 14.07.2016

1. The plaintiff has sued for mandatory injunction directing the

defendants BSES Rajdhani Power Limited, South Delhi Municipal

Corporation (SDMC) and Divisional Head (O&M) of the defendant

No.1 BSES Rajdhani Power Limited to remove the transformer and

the electric pole installed in the portion of the properties No. D1/20

and D1/21, Rajouri Garden, New Delhi of the plaintiff and for

recovery of arrears and future mesne profits/damages for the use and

occupation.

2. The suit was entertained.

3. The defendants No. 1 and 3 have filed a written statement inter

alia pleading that the subject transformer has been in existence for

over 30 years, though the said defendants are unable to locate the

documents executed by the then owner of the property permitting

installation of the said transformer and have sought the same from

Delhi Power Corporation Limited (DPCL) being the holding company

created while unbundling erstwhile Delhi Vidyut Board (DVB) during

whose regime the subject transformer and electric pole were installed.

4. Defendant No.2 SDMC has not filed any written statement and

the counsel for the plaintiff states that the defendant No.2 SDMC was

impleaded only because it was the stand of the defendant No.1 in

response to the legal notice preceding the suit that SDMC had to

allocate alternative place to them for shifting of the said transformer;

else no relief has been claimed against the defendant No.2 SDMC.

5. The suit is ripe for framing of issues, if any.

6. Counsel for the plaintiff states that the written statement of

defendants No. 1 and 3 does not disclose any defence to the suit in so

far as for the relief of mandatory injunction and the plaintiff is entitled

to decree forthwith.

7. On enquiry, the counsel for the plaintiff in support of the title of

the plaintiff to the subject property has drawn attention to the

judgment dated 10th April, 2015 of this Court in CS(OS)

No.1350/1995 titled Gurnam Kaur Vs. Pritam Singh Bhatia and in

Test.Cas. 81/2008 titled Administrator General Sanjay Dewan Vs.

State declaring the plaintiff as the owner of the properties and to the

judgment dated 14th August, 2015 of the Division Bench of this Court

in RFA(OS)70/2015 Sanjeev Bansal Vs Gurnam Kaur preferred

thereagainst. It is further informed that SLP preferred against the said

judgment of the Division Bench was also dismissed though copy of

that order has not been filed and is not available with the counsel

today. On further inquiry whether there is any challenge from any

quarter to the title of the plaintiff to the subject properties as of today,

the reply is in the negative. It is however informed that the plaintiff

has since sold property No.D-1/21, Rajouri Garden, New Delhi but

the transformer and the electricity pole qua which the suit has been

filed is in property No.D-1/20.

8. The counsel for the defendants No. 1 and 3 on inquiry confirms

that the transformer and the electricity pole are as shown in the site

plan filed by the plaintiff i.e. within the boundary wall of property

No.D-1/20. The said site plan, for identification, is Ex.C-1.

9. The counsel for the defendants No. 1 and 3 states that the

defendants No. 1 and 3 have sought details of the documents of

occupation of the property from the DPCL and the same are awaited

and seeks adjournment. It is argued that owing to the process of

unbundling of the DVB which had installed the subject transformer,

the documents are not immediately available. It is yet further

contended that the removal of transformer is a time consuming

process and subject to availability of alternative location and if the

transformer is removed immediately, the electric supply to the locality

would suffer.

10. I have considered the rival contentions. Merit is found in the

contention of the counsel for the plaintiff that the plaintiff, on the

pleadings of the parties, is entitled to a decree forthwith for the relief

of mandatory injunction.

11. Order XV of the CPC requires the Court to frame issues only

substantial disputed questions of law and the written statement of the

defendants No. 1 and 3 does not raise any substantial question of fact

which if proved would disentitle the plaintiff to the relief of

mandatory injunction.

12. As far as the pleas of the counsel for the defendants No. 1 and 3

of adjournment and of difficulty in removal of transformer are

concerned, suffice it is to state that the written statement was filed by

the defendants No. 1 and 3 as far back as in January, 2016 and if the

defendants No. 1 and 3 in the last about six months have been unable

to find any document, the suit cannot be kept pending indefinitely for

the said purpose and the plaintiff cannot be deprived of her property.

The question of the difficulty in shifting of the transformer even

otherwise is to be considered at the stage of execution of the decree

for mandatory injunction.

13. I may in this regard notice that with respect to transformers

similarly installed in other private properties, WP(C)s. No. 6032/2008

and 1035/2011 were filed and the directions for shifting of the

transformers to the alternative site issued.

14. I have in this regard enquired from the counsel for the

defendants No. 1 and 3 whether defendants No. 1 and 3 have initiated

the process for shifting of the transformer and the electricity pole.

15. The reply is in the negative.

16. The same is also indicative of the fact that till an order is

passed, the defendants No. 1 and 3 will not be spurred into action for

relocating the transformer.

17. The plaintiff, from certified copies of judgments supra of this

Court has proved her ownership of the property. The defendants No. 1

and 3 have not claimed any ownership right in the property. The only

possible right of the defendants No. 1 and 3 could be either of a

licencee or as a lessee. It is not the case that there is any registered

lease. For this reason also, the question of the defendants No. 1 and 3

having any right to continue with the transformer and electrical pole

in the property of the plaintiff does not arise.

18. The suit insofar as for the relief of mandatory injunction is

accordingly decreed and a decree for mandatory injunction is passed,

in favour of the plaintiff and against the defendant No.1 directing the

defendant No.1 to remove the transformer and the electricity pole in

property No.D-1/20, Rajouri Garden, New Delhi within three months

from today.

19. Decree sheet be drawn up.

20. As far as the claim of the plaintiff for recovery of

damages/mesne profit is concerned, the plaintiff has claimed the

arrears of damages of Rs.23,32,000/- and future damages / mesne

profits.

21. The counsel for the plaintiff on enquiry states that the plaintiff,

for the first time called upon the defendants No. 1 and 3 to remove the

transformer and electricity pole, on 15th April, 2015.

22. The claim for mesne profits/damages for use and occupation

can be thereafter only say w.e.f. 1st May, 2015.

23. On the pleadings of the parties with respect to the said claim of

the plaintiff, the following issues are framed:

1. To damages / mesne profits with effect from 1st May, 2015 at what rate, is the plaintiff entitled to from the defendant No.1 for not removing the transformer and electricity pole from Property No.D-1/20 Rajouri Garden, New Delhi of the plaintiff? OPP