Anil Kumar Gupta & Ors vs M/S Bses Yamuna Power Limited & Ors
2017 Latest Caselaw 6366 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                            Date of Decision: 13.11.2017

+      LPA 360/2017 & CM Nos.18119-18120/2017

       ANIL KUMAR GUPTA & ORS              ..... Appellants
                    Through: Mr. D.K. Rustagi with
                    Mr. Mayank Rustagi, Advs.

                                 versus

       M/S BSES YAMUNA POWER LIMITED &
       ORS                                   ..... Respondents
                    Through: Mr. Manish Kumar Srivastava,
                    Adv. for R-1/BSES.
                    Ms. Sakshi Popli with Mr. Tarun, Advs. for
                    R-2/DJB.
                    Mr. Anuj Aggarwal, ASC, GNCTD with
                    Ms. Deboshree Mukherjee, Adv. for R-3 &
                    4.
                    Mr. Kirti Uppal, Sr. Adv. with Mr. Deepak
                    Anand, Adv. for landlady/Nisha Sharma.

+      CM Nos.40911-40912/2017 IN LPA 387/2016

       NISHA SHARMA                                     ..... Appellant
                                 Through: Mr. Kirti Uppal, Sr. Adv. with
                                 Mr. Deepak Anand, Adv.

                                 versus

       ANIL KUMAR GUPTA AND ORS             ..... Respondents
                    Through: Mr. D.K. Rustagi with Mr.
                    Mayank Rustagi, Advs. for R-1 to 4.
                    Mr. Manish Kumar Srivastava, Adv. for
                    BSES.




LPA No.360/2017 & conn. matter                                       Page 1
        CORAM:
       HON'BLE MR. JUSTICE S. RAVINDRA BHAT
       HON'BLE MR. JUSTICE SANJEEV SACHDEVA

S. RAVINDRA BHAT, J. (ORAL)

1. We have heard counsel for the parties.

2. The dispute in this case pertains to the disconnection of electricity to three premises i.e. 470-472 Chandni Chowk; one appeal has been preferred by Mr. Anil Kumar Gupta (hereafter referred to as "the tenant") and the other by Ms. Nisha Sharma (hereafter referred to as "the landlady").

3. The impugned order outlines that sometime in the year 2005 a Division Bench had recorded an undertaking by the tenant that within three months he would incorporate fire safety measures in accordance with law. Complaining that the undertaking was violated, the landlady approached this Court in contempt proceedings. The impugned order was made in the course of contempt proceedings, on 01.05.2017. In the meanwhile, on 24.03.2017, a Division Bench of this Court in LPA No.387/2016 (filed by the landlady) clarified that the water tank would be constructed under supervision of one Dr. Maqsud E. Nazar in view of the consensual order made in a previous contempt proceeding i.e. CC No.690/2010.

4. The impugned order recorded inter alia as follows:

"7. Today, learned counsel for Delhi Fire Service has handed over a status report dated 24th April, 2017. The said report reads as under:-

LPA No.360/2017 & conn. matter Page 2 "1. In pursuant to the order dated 23.02.2017 of the High Court of Delhi in WP (C) 2095/2016, Smt. Nisha Sharma vide letter dated 23.03.2017, Sarvshri Ramesh Kumar Yadav, Anil Kumar Gupta, Hari Om Aggarwal, Shiv Parkash Aggarwal AND Smt. Sunita Aggarwal vide letter dated 17.03.2017 submitted a formal request to this department for issue of NOC. The application was not in the time directed by the Hon'ble Court in its order dated 23.02.2017. However application was duly processed and the premises was inspected by the team of officers concerned of this department on 08.03.2017 and 06.04.2017. Ground floors shops and under ground water storage tank was inspected but inspection for upper floors was denied by Mr R.D. Sharma on behalf of Smt Nisha Sharma (landlord). However report is as under:

2. The under ground water storage tank has been constructed under two shops but the details of the tank such as capacity, dimensions, operational condition, structural stability certificate was not provided. In addition to this fire pump, draw off connection, proper manhole with cover, water replenishment arrangement are not yet made. The tank was lying empty.

3. The affidavit dated 10.08.2016 filed by the petitioner in WP (C) 2095/2016 reveals that the capacity of the water storage tank is only 47,100 ltrs as against 50,000 ltrs.

4. The department is neither competent nor qualified for ascertaining the structural stability of the building and tank. Accordingly the Hon'ble Court may be requested to either appoint qualified structural engineer or engage some professional from IIT etc. for ascertaining structural stability and exact capacity of water storage tank.

LPA No.360/2017 & conn. matter Page 3

5. In view of the above, the NOC/Fire Safety Certificate from fire safety point of view cannot be issued at this stage. Hon'ble High Court may be apprised accordingly."

(emphasis supplied)

8. From the aforesaid status report, it is apparent that the contention of the occupants Mr. Anil Kumar Gupta & Ors. that the underground water storage tank is operational, is not correct.

9. Consequently, as the underground water storage tank is not operational and for nearly twelve years the order dated 06th April, 2005 has not been complied with, this Court is of the view that public interest demands that the buildings in question be sealed and the electricity connection be disconnected till the buildings in question have been made fire compliant.

10. After all, it is settled law that inter se disputes between the occupants and the owner cannot hold the public interest to ransom.

11. If either the owner or the occupants is of the view that the buildings have been sealed due to neglect or failure to discharge a legal duty on the part of the other party, the aggrieved party is given liberty to file a suit for damages/compensation against the order.

12. In any event, this Court is of the view that in such matters it must adhere to the precautionary principle.

13. Accordingly, the Chief Executive Officer, BSES- YPL is directed to immediately give effect to the order dated 06th April, 2005 and the letter dated 22nd January, 2016 written by Mr. A.K. Sharma, Director, Directorate of Delhi Fire Service, Govt. of NCT of Delhi to the CEOs of BSES Yamuna and Delhi Jal Board."

LPA No.360/2017 & conn. matter Page 4

5. The Single Judge was of the opinion that directions were necessary and accordingly required the Chief Executive Officer, BSES-YPL to immediately give effect to the order of the earlier undertaking/order and the subsequent letter of 22.01.2016 by the Director of Delhi Fire Services.

6. During the pendency of these proceedings, apparently the landlady had approached the Supreme Court, which recorded on 06.10.2017 as follows:-

"Mr. Rakesh K. Khanna, learned Senior Counsel appearing for the petitioner, submits that High Court has wrongly recorded that the construction of water tank was substantially completed by the time judgment dated 24.03.2017 was passed by the High Court and if a local commissioner is appointed to verify the above observation at this stage, then, in that event, it would be appropriate for the petitioner to approach the High Court with the aforesaid submission.

In view of the above, the Special Leave Petition is dismissed.

Pending application(s), if any, stand(s) disposed of."

7. It is highlighted on behalf of the tenant that the tenor of the order of the Supreme Court shows facially that the landlady suppressed the fact that a previous inspection by a Structural Engineer had been undertaken pursuant to the orders of the Court. The order of this Court in this context is of 19.07.2017 in the tenant's appeal. The said order reads as follows:-

"C.M. No.25049/2017 in LPA No.387/2016

LPA No.360/2017 & conn. matter Page 5 Issue notice. Counsel for the appellant accepts notice. We have heard learned counsels and perused the record. We are satisfied that the underground water tank had substantially been constructed by the time the judgment dated 24.03.2017 came to be passed in the present appeal, and this aspect could not be informed to the Court since, arguments were heard on 19.07.2016 and the judgment was pronounced on 24.03.2017. Accordingly, the application is allowed in terms of the prayer made in the application."

8. We notice that on 19.07.2017 both appeals i.e. of the landlady and the tenant were listed. The Court made the order in the tenant's appeal requiring inspection by a Structural Engineer. It is quite evident that the Supreme Court was unpersuaded by the landlady's submission that the previous order of 24.07.2017 was not appropriately or properly taken into account. It is quite evident that both appeals were listed together; the Court which made the order did so in both appeals; it was fully apprised of both the status reports, the observations of the Single Judge and more importantly the submission of the parties.

9. Furthermore, this Court is of the opinion that given the circumstance that there is no finality to any interim order, the fact that one of the parties i.e. the landlady felt aggrieved per se does not mean that there is any infirmity in the order of the Division Bench in the tenant's appeal (LPA No.360/2017 made on 19.07.2017).

10. The report of the Structural Engineer, appointed by the Division Bench in the presence of the parties i.e. S.M. Adnan, made pursuant to

LPA No.360/2017 & conn. matter Page 6 the inspection of the premises reads as follows:-

"As per Honorable Justice Mr. Vipin Sanghi's & Honorable Justice Ms. Rekha Palli's LPA 360/2017 myself had visited the shops bearing nos.470, 471 & 472, Chandni Chowk, New Delhi on 16th September 2017 along with Mr. Anil Kumar Gupta and others (Appellant) but Mr. Ram Dev Sharma (Landlord) refused to come to site and I was unable to look into the adjacent shop no.

469. Mr. Ram Dev Sharma's presence was necessary as shop no. 469 is also his property and I was to look into the space for placing the fire water pumps. During my site visit I found the underground water tanks in the shops of 470, 471 & 472 and were in good condition along with pipes connectivity. It is clearly evident and seen at site that only the fire water pump has to be installed along with the electricity connection to the pump and the fire water tanks will be operationalised. This is to bring to the Honorable Court's notice that due to the non-cooperation of the landlord (Mr. Ram Dev Sharma) I was unable to complete my job. I telephoned him on two occasions and he refused to meet me and visit the site along with me. Further he told me that he has already applied for stay against this order in Honorable Supreme Court and I should also wait for the Supreme Court order. That is when he also refused to pay his part of fees as per your directions. For the record Mr. Anil Kumar Gupta and others (Appellant) already paid the half of the said amount in the form of cheque. To substantiate the evidence, attached are the photographs of the underground fire water tanks below shops 470, 471 & 472.

This is for your information and record."

11. Having regard to the above, it is quite evident that the

LPA No.360/2017 & conn. matter Page 7 observations with respect to the status report were on the basis of the information available with the parties. Now, the structural stability of the premises has been established. We further notice that so far as the installation of the water connection and water pump, etc. are concerned, the obligation to do so is that of the landlady; there is no dispute that the landlady owns the premises and the appellant in LPA No.360/2017 is a tenant.

12. On 30.03.2016, an order was made by the learned Single Judge, outlining the conditions; the detailed requirements which the occupant/tenant was to comply with, are contained in Paragraph 16 of the order. The said extract of the order reads as follows:-

"16. I am therefore of the view that the petitioners should be given an opportunity to construct the water tank. However some conditions need to be imposed including of deposit of certain amount in this Court as security for constructing the water tank within time, in a good-workman like manner and without causing a harm / damage to the remaining property and for complying with undertaking given to the Court. Accordingly, the petitioners are permitted to construct the water tank only under their shops and subject to the following conditions:

(i) that if the petitioners within the period of 90 days from today do not complete the work of construction of underground water tank, the respondents no.1&2 would be entitled to disconnect the electricity and water supply to the shops in possession of the petitioners;

(ii) the petitioners in carrying out the said work will not cause any disruptions to the egress and ingress

LPA No.360/2017 & conn. matter Page 8 to the other shops or to the upper floors of the property;

(iii) the petitioners will carry out the work in non commercial hours and on holidays;

(iv) the petitioners shall on or before 6th April, 2016 deposit a sum of Rs.10,00,000/- in this Court and on or before 19th April, 2016 deposit the balance sum of Rs.15,00,000/- in this Court as security aforesaid;

(v) the said sum when deposited be kept in a maximum interest bearing deposit for a period of three months;

(vi) if the amount is not deposited, the petitioners shall immediately stop all the works in the shops in their possession and the permission granted to the petitioners shall stand withdrawn; and,

(vii) the petitioners shall be jointly and severally liable for all consequences of the work to be so carried out."

13. That order i.e. of 12.05.2017 further records as follows:-

"23. The above noted record and order sheets would show that the appellants had appeared to have made every effort to ensure that all requisite fire safety installations are installed. The underground water tank of huge capacity stands constructed. The amount of Rs.25 lakhs is lying deposited by the appellants. The appellants have expressed their willingness to even bear the cost of such installations as is required to be installed by the landlady. It would appear that the installation has been obstructed by the respondent no.5-landlady.

24. We therefore, accept the undertaking given by the appellants to install the remaining fixtures as are required by the Delhi Fire Service. This installation

LPA No.360/2017 & conn. matter Page 9 shall of course be without prejudice to the right of the appellants to recover the cost for the same from Smt. Nisha Sharma.

25. It cannot be denied that in order to enable the installation of the pump etc., access has to be had to portions of the property which are in power and possession of the landlady. Appropriate orders in this regard can be made in the presence of the landlady Smt. Nisha Sharma."

14. The Court was informed that pursuant to the interim orders and directions made in these proceedings, the BSES has restored the electricity supply. In these circumstances, a direction is issued to the Delhi Fire Services, having regard to the above parameters, to inspect the premises and decide the issue; in the event it is held that the premises are safe, to issue the no objection certificate, based upon the decision within two weeks thereafter.

15. The Letters Patent Appeals are disposed of in the above terms.

Order Dasti under the signatures of the Court Master.

                                        S. RAVINDRA BHAT, J



                                        SANJEEV SACHDEVA, J
NOVEMBER 13, 2017
kks




LPA No.360/2017 & conn. matter                                     Page 10