Gurnam Kaur v. BSES Rajdhani Power Ltd. & Ors.

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 2016:DHC:4951 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.