IN THE COURT OF SH. LALIT KUMAR:
ADDITIONAL DISTRICT JUDGE
SOUTH EAST
DISTRICT, SAKET COURTS, NEW DELHI.
In the matter of:
CS No. 206966/2016
1. Afzal
2. Iqbal
3. Intizar
4. Hameed
5. Khalid
(All are sons of Sh. Maksood and
residing at H. No.427, Sant Nagar,
New Delhi - 110003). ....Plaintiffs
VERSUS
Delhi Development Authority
Through Vice Chairman
1st, Floor, B-Block,
Vikas Sadan, INA,
New Delhi. ....Defendant
Date of Institution : 12.02.2014
Date of Arguments : 20.12.2021
Date of Judgment : 23.12.2021
CS No. 6966/16 dated 23.12.2021
SUIT FOR PERMANENT AND MANDATORY
INJUNCTION AND DAMAGES
JUDGMENT:
Brief summary of the case :-
1. The present suit has been filed by the plaintiffs for permanent and mandatory injunction and damages with the following prayers:
a) Pass a decree of permanent injunction in favour of the plaintiffs and against the defendant thereby restraining the defendant, its agents, employees, survives, executors, attorneys, assigns and any other person acting for and on behalf of the defendant from removing the goods lying in the premises in question bearing no.G-66/4, measuring 100 sq. yards situated at Masjid Moth, Gautam Nagar, New Delhi as shown in red colour in site plan.
b) Pass a decree of mandatory injunction in favour of the plaintiffs and against the defendant thereby directing the defendant, its agents, employees, survives, executors, attorneys, assigns and any other person acting for and on behalf of the defendant to restore back the premises bearing no. G-66/4, measuring 100 sq. yards situated at Masjid Moth, Gautam Nagar, New Delhi as shown in red colour in site plan.
c) Pass a decree of damages in favour of the plaintiffs and against the defendant thereby directing the defendant to pay a sum of Rs.5,00,000/- as damages for losses caused on account of demolition, mental agony and humiliation.
d) Cost of the suit be also awarded in favour of the plaintiffs and against the defendant.
Plaintiff's Version :
2. It is the case of the plaintiffs that they are the lawful owners in possession of the suit property bearing no. G-66/4, measuring 100 sq.yds situated at Masjid Moth, Gautam Nagar, Khewat no.8/34 of Gautam Nagar by virtue of documents Ex.PW-1/1 (colly) (sold by Smt. Shankari Devi to Sh. Mehmood), Ex.PW-
1/2 (colly) (sold by Sh. Mehmood Sh. Maksood) and Ex.PW1/3 (colly) (sold by Sh. Maksood to his sons/plaintiffs). There are GPA, Will, Receipt, etc. The suit property was being used as a shop under the name and style of Maksood Paper Retail Shop, which was sealed in the year 2007 by the MCD during sealing drive of commercial premises and residential areas. The suit property was de-sealed but was again sealed in the year 2012 by the MCD. When DDA had demolished the suit property on 31.01.2014 the same was lying in the sealed condition. The DDA had to demolish the properties no. G-66/1 and G-66/3, however the property of the plaintiffs was demolished inadvertently. The DDA had never passed a demolition order in respect of the suit property and no prior statutory notice was ever issued to the plaintiffs by the DDA. DDA is not the owner of the property in question. The plaintiffs are the rightful owner in possession of the property in question. The plaintiffs are in possession of the suit property in the capacity of a true owner and their possession is hostile, uninterrupted, continuous, along, peaceful, recognised, admitted and acknowledged by entire world including government agencies. The plaintiffs have filed various documents like water bills, house tax receipt, telephone bills, electricity bills, mobile bills, ID proofs and other notices issued by the government agencies.
3. Summons of the suit was issued to the defendant and upon service defendant had filed WS.
Case of the defendant
4. In reply to the present suit, defendant filed Written Statement and denied the allegations. It is averred that plaintiffs are the encroachers and trespassers on the government land and have no right, title or interest in the suit property. The suit land is part of khasra number 113 (3-01) of village Masjid Moth, which was acquired by the Award number 1351 and the possession of the said land was taken over by the LAC/L&B Department on 11.07.1962 and thereafter the said land was placed at the disposal of DDA by notification under Section 22(1) of Delhi Development Act on 14.06.1972. The said land is being used as a public park. The Hon'ble Lieutenant Governor had approved the transfer of the land of the park measuring 1197.72 sq.m from DDA to MCD. Various complaints were received regarding encroachment on the park in the form of buildings and a kabari shop. The demolition action was taken on 31.01.2014 to remove two structures which included the structure of the plaintiffs herein. The photographs were taken and the property was not lying sealed at the time of taking action by the DDA. The plaintiffs were using the suit property at the time of demolition. The plaintiffs had tried to re-encroach upon the suit property after demolition and the complaint was made by the DDA officials to the police station on 01.02.2014. The undertaking was given by the plaintiff no.3 that they would advocate the suit property within 10 days. The layout plan of Gautam Nagar does not include any properties no.G-66/1 to G-66/4. The encroachment has been pinpointed in the layout plan by the DDA officials. These numbers are not municipal numbers but self assigned numbers.
Replication
5. Replication was filed by the plaintiffs / in response of the written statement of the defendants. The plaintiffs denied the preliminary objections as well as the material averments contained in the written statements. The averments contained in the plaint were reiterated as correct in the replications.
Identification of issues :
6. On the pleadings of the parties, following issues were framed :
(1) Whether the suit property i.e. premises bearing no. G- 66/4 measuring 100 sq. yards situated at Masjid Moth, Gautam Nagar, New Delhi as shown in the red colour in the site plan is situated on the acquired land belonging to DDA? OPD (2) Whether the suit of the plaintiff is barred as in the garb of this suit they are challenging the acquisition proceedings? OPD (3) Whether the plaintiff is entitled for the decree of permanent injunction as prayed in para (a) of the prayer clause? OPP (4) Whether the plaintiff is entitled for the decree of mandatory injunction as prayed in para (b) of the prayer clause? OPP.
(5) Whether the plaintiff is entitled for damages as prayed in para (c) of the prayer clause? OPP (6) Relief?
Plaintiff's Evidence:
7. Plaintiffs examined Sh. Afzal as PW1 who has relied upon following documents : Sl. Document / Particulars Exhibits (s)
No
1. Sale documents in favour of Sh. Mehmood Ex.PW1/1 (colly)
2. Sale documents in favour Sh. Maksood Ahmad Ex.PW1/2 (colly)
3. Sale documents in favour of the plaintiffs Ex.PW1/3 (colly) 4. Water bills Ex.PW1/4 (colly)
5. House tax receipt Mark D (Ex.PW1/5
(colly) in affidavit)
6. The telephone bills Ex.PW1/6 (colly)
7. The electricity bills Ex.PW1/7 (colly)
8. Mobile bills Ex.PW1/8 (colly)
9. The ID Proof/address proof of the father of the Mark F (Ex.PW1/9
plaintiff i.e. (election ID, Ration Card, Driving (colly) in affidavit) License etc)
10. The NCR No.3181/2012 Ex.PW1/10
11. The notices u/Sec. 133 of MV Act Ex.PW1/11 (colly)
12. The quotation dated 26.04.2010 Mark E (Ex.
PW1/12 (colly) in affidavit
13. The tax invoice dated 08.12.2010 Ex.PW1/13 (colly)
14. The Delivery challan dated 13.11.2009 Mark G (Ex.PW1/14 in affidavit)
15. The life insurance payments receipts Ex.PW1/15 (colly)
16. The copies documents of de-sealing of the suit Mark A (colly) property in the year 2007-2008
17. The copies of the documents for the registration of Mark B (colly) the suit property under mixed land use
18. The notice u/Sec. 345A of DMC Act dated Ex.PW1/16 (colly) 21.07.2012
19. Documents of de-sealing of the suit property in the Ex.PW1/18 (Mark year 2012 C (colly) in affidavit).
20. Photographs Ex.PW1/17 (colly)
8. In order to prove their case the plaintiffs have also examined summoned witnesses, viz PW2 Constable Murari Lal, PW3 Sh. Surinder Dagar from SDMC, PW4 Sh. Jitendra Kumar from Delhi Jal Board, PW5 Sh. Suresh Kumar from Property Tax Department of SDMC and PW6 Sh. Manoj Kumar from BSES Office.
All these witnesses were cross examined by the Ld. Counsel for the defendant.
Defendant's Evidence
9. The defendant has examined only single witness Sh. Om Prakash Sharma as DW1, Kanungo who has relied upon following documents: Sl. Documents Exhibit
No.
1. Copy of Award no.1351 Ex.DW1/1A (mentioned
as Mark-A in the
affidavit)
2. Copy of possession proceedings dated Ex.DW1/1B (mentioned
11.07.1962 as Mark-B in the
affidavit)
3. Copy of Notification u/Sec. 22 (i) dated Ex.DW1/C (mentioned as
14.06.1972. Mark-C in the affidavit)
4. Copy of Part Aks Shijra Plan of village Ex.DW1/1D (mentioned
Masjid Moth. as Mark-S in the
affidavit)
5. Extracts from the demolition file of DDA. Mark-DW1/1 (mentioned as Ex.DW1/1 in the affidavit)
6. Letter dated 14.06.2013 along with letter Mark-DW1/2 (mentioned dated 27.05.2013 as Ex.DW1/2 in the affidavit).
7. Letter dated 08.05.2013. Mark-DW1/3 (mentioned as Ex.DW1/3 in the affidavit)
8. Letter dated 25.11.2013 from SDMC Mark-DW1/4 (mentioned as Ex.DW1/4 in the affidavit)
9. Letter dated 03.12.2013 Mark-DW1/5 (mentioned as Ex.DW1/5 in the affidavit)
10. Performa for fixing demolition program Mark-DW1/6 (mentioned with rough sketch plan. as Ex.DW1/6 in the affidavit)
11. Letter dated 08.01.2014 to DCP Ex.DW1/7 (OSR)
12. Demolition report dated 31.01.2014 Ex.DW1/8 (OSR)
13. Letter dated 31.01.2014 by Sh. Ajay Garg. Mark-DW1/9 (mentioned as Ex.DW1/9 in the affidavit)
14. Undertaking given by Intezar Ahmed Already Ex.PW1/D1.
(mentioned as Ex.DW1/10 in the affidavit)
15. Two Photographs before demolition. Ex.DW1/11
16. Two photocopies after demolition. Ex.DW1/12
17. Complaint dated 01.02.2014. Mark-DW1/13 (mentioned as Ex.DW1/13 in the affidavit)
18. Letter dated 04.02.2014. Mark-DW1/14 (mentioned as Ex.DW1/14 in the affidavit)
19. Part layout plan. Mark-DW1/15 (mentioned as Ex.DW1/15 in the affidavit) This witnesses was cross examined by the Ld. Counsel for the plaintiffs.
10. I have heard the arguments advanced before me by Ld.
Counsel for both the parties and gone through the material on record.
11. PW-1 Sh. Afzal, plaintiff in his testimony, deposed that plaintiffs are the lawful owner in the position of the suit property bearing no. G-66/4, measuring 100 yds situated at Masjid Moth, Gautam Nagar, care BOT number 8/34 of Gautam Nagar and he reiterated averments made in the plaints. During cross examination, PW1 deposed that he did not see any document of ownership in respect of the suit property. He stated that his father is alive. He admitted that he did not have any revenue records showing that the said property is situated in Khasra no.8534 of Gautam Nagar nor any registered document in respect of the suit property. He further stated that suit property was sealed by MCD during sealing drive, which was got de-sealed but was again sealed in year 2012 and remained sealed up to the date of demolition by DDA Officials. He stated that there was an open gate in the suit property which was removable and every day they used to close the shop by putting the removable gate in the evening and at the time of sealing the gate was not there. It is stated that he had not used property since it was sealed in 2012 but used to visit the suit property and sit outside the same. This witness deposed that the utility services were not closed by the concerned agencies after sealing of the premises. He denied the suggestion that he was using the property despite the same being sealed by the MCD. He has further denied that on the day of demolition by the DDA Officials, the property was not lying in the sealed condition. PW1 further deposed that at the time of demolition on 31 January 2014, DDA Officials had forced the plaintiff no.3 (Intezar, his brother) to give in writing that the suit property would be vacated within few days. The said document is exhibited as Ex. PW1/D1. He further deposed that he was not aware whether the number of suit property had been assigned by the MCD. He admitted that suit property had been demolished by the DDA Officials. He stated that he did not know whether the suit land and the adjacent land had been acquired and placed at the disposal of DDA. He further stated that he knew about the code number but not the Khasra number of the suit property.
12. PW-2 Const. Murari Lal, from traffic headquarter, brought the same and record of various notices issued to the plaintiff no.1 at the address 66-G/4, H-Block, Gautam Nagar, New Delhi. In the cross-examination, this witness stated that the address at which the notices were sent, is as per the address of the owner of the vehicle mentioned in the registration certificate.
13. PW-3 Sh. Surinder Dagar, dealing assistant, building department SDMC had also brought the same on record which included letters sent to Sh. Maqsood Ahmed for de-sealing the suit property. In the cross-examination, this witness stated that the building department of SDMC was not concerned with the ownership of the premises in question. A notice dated 21.07.2012 was issued to Intezar Ahmed in respect of Kabadi Shop.
14. PW-4 Sh. Jitender Kumar, UDC, Delhi Jal Board, brought the record of the water connection installed at the suit premises, which was sanctioned on 13.09.1990. In the cross-examination this witness deposed that the area in question is a rural area and the department do not insist upon the ownership document but sanctioned the water meter on the basis of indemnity bond and affidavit.
15. PW-5 Sh. Suresh Kumar, Zonal Inspector, Property Tax, SDMC appeared and deposed that the summon records of the house tax in respect of the suit property was not available in the records of the property tax department.
16. PW-6 Sh. Manoj Kumar from BSES Office, brought the same on record of the electric meter installed at the suit premises.
17. DW-1 Sh. Om Pal Sharma, Kanoongo, DDA appeared on behalf of the DDA and stated that the plaintiffs were the unauthorised encroachers and trespassers on the public land. The suit property falls in Khasra No.113(3-01) of Village Masjid Moth, which was acquired vide Award no.1351 and possession of the land was taken over by the LAC / L&B Department on 11.07.1962. The acquired land was placed at the disposal of DDA by notification dated 14.06.1962 under Section 22(1) of Delhi Development Act. He further stated that after acquisition, any sale / purchase of the said public / suit land is illegal and void ab initio. The Hon'ble Lieutenant Governor of Delhi had given approval on 10.01.2010 for transferring of the land of the Park measuring 1197.72 sq.m from DDA to MCD for the construction of the Community Hall on the Park of DDA, Gautam Nagar. The plaintiffs have encroached on part of this park which is required for the public purpose. There were several complaints regarding encroachment of DDA Park including encroachment made by the plaintiffs in the form of Kabari Shop. Accordingly, the encroachment removal action in Khasra no.113 was fixed for 31.01.2014 to remove two structures namely the structure of the plaintiffs in the shape of a shed wherein the plaintiffs were running a kabari business and a multi-storey building. The demolition action was taken in the presence of the police force and the photographs were also taken before carrying out the demolition action and also after demolition. The photographs show that the suit property was not in a sealed position / condition.
This witness stated that the demolition in respect of property in question is not by property number but in the demolition order it is mentioned amongst other, one kabariwala in an area of 117 sq. yards, encroached the acquired land of Khasra no.113, Masjid Moth, New Delhi. This witness denied the suggestion that the suit property is neither a kabari shop and nor is known as a Kabariwala property. This witness admitted that no prior notice was issued to the plaintiff before demolition, however, he voluntarily deposed that there is no such provision to issue any prior notice on encroached land.
Finding on issues
18. I have meticulously gone through the pleadings, evidence, material / record and heard arguments address by Ld. Counsel for the plaintiffs and Ld. Counsel for the defendant / DDA and gives my issue-wise findings as under:
19. Issue No.1: Whether the suit property i.e. premises bearing no. G-66/4 measuring 100 sq. yards situated at Masjid Moth, Gautam Nagar, New Delhi as shown in the red colour in the site plan is situated on the acquired land belonging to DDA? OPD The onus to prove this issue was upon the defendant. To prove this issue, the defendant's witness Sh. Om Pal Sharma DW-1 was examined as a witness who tendered his evidence by way of affidavit Ex.DW-1/A. He deposed that the suit property falls in Khasra no.113(3-01) of Village Masjid Moth, which was acquired vide Award No.1351 and possession of the land was taken over by the LAC/L&B Department on 11.07.1962. The acquired land was placed at the disposal of DDA by Notification dated 14.06.1962 under Section 22(1) of Delhi Development Act. The Award no.1351 is exhibited as Ex.DW-1/A, possession proceedings as Ex.DW-1/B, notification dated 14.06.1962 issued under Section 22(1) of Delhi Development Act as Ex.DW-1/C and part Aks Shijra Plan as Ex.DW-1/D. The location of Khasra no.113 which includes the suit property has been shown by the witness in Ex.DW-1/D. It is clear from the examination of this witness that the location of the suit property has not been disputed by the plaintiffs in Aks Shijra Plan and thus as far as the location is concerned, it is proved by this witness that the property falls in Khasra no.113 and is acquired and placed at the disposal of DDA. The same is being maintained as a park by DDA. In the cross examination, DW-1 denied the suggestion that the suit property falls in Khewat no.8/34 which was not acquired. It was further denied by this witness that Shijra and site plans are fabricated documents. This witness further added that in this document the kabariwala has also been marked. It was denied by this witness the suggestion that the suit property is neither a kabari shop or kabariwala property. This is a contrary stand taken by the plaintiffs. The plaintiffs themselves have filed certain documents showing that the suit property was being used as a Kabari shop and on the other hand the contrary suggestion has been given to the witness DW-1 that the suit property is neither a Kabari shop of Kabariwala property. The plaintiff is trying to blow hot and cold in the same breath. Be that as it may, the location of Kabariwala shown in this document Mark DW-1/5 has not been disputed by the plaintiffs.
The plaintiffs have averred that the suit property falls in Khewat No.8/34 in the area of Gautam Nagar, but they have failed to prove this and not an iota of evidence has been brought in the court regarding suit property falling in Khewat no.8/34. The plaintiffs' witness PW-1 in his cross examination, has admitted that he did not have any revenue records showing that the said property is situated in Khewat No.8/34 of Gautam Nagar nor any registered document in respect of the suit property. Therefore, the averments made by the plaintiffs regarding Khewat no.8/34 are not proved in evidence. The plaintiffs have miserably failed to prove the existence of any Khewat nu.8/34. Therefore, no reliance can be placed on the mere averments made in the plaint without there being any evidence in support of such averments. It is the settled law that the plaintiff has to stand on his own legs and prove his case. The plaintiffs, during oral arguments, have raised the issue that no demarcation report has been filed by the DDA to suggest the actual area and location of Khasra no.113. Reliance has been placed on the judgment of Swaran Kaur Vs. DDA 123 (2005) DLT 484.
I have gone through the said judgement and found that the facts are distinguishable from the present facts of the case and the reliance placed by the plaintiffs on the judgment is misconceived. Moreover, the plaintiffs have not taken this plea of demarcation in any of the pleadings or evidence. This plea was taken for the first time of final arguments and hence cannot be entertained at the stage of final arguments. It is also noted that during the trial, the plaintiffs have not brought any revenue documents to prove that the property falls in Khewat No.8/34. In his cross examination, PW-1 had stated that "I know Khewat number but not the khasra number in which the disputed land falls". He has further stated that "I do not have any revenue records showing that the said property situated in Khewat No.8/34 of Gautam Nagar". Therefore, it is crystal clear that the issue of demarcation of the suit property was never raised nor was there any requirement to get the demarcation done in order to ascertain the Khasra number of the suit property. Thus, there is no merit in the submissions of the counsel for the plaintiffs that the demarcation was required to be done by DDA before taking demolition action in the suit property.
In view of the aforesaid discussion, I have no hesitation in holding that the defendant has succeeded in proving that the suit property falls in Khasra no.113, Village Masjid Moth, which has been acquired and placed at the disposal of DDA by notification dated 14.06.1962 issued under Section 22(1) of Delhi Development Act. The issue is accordingly decided in favour of the defendant / DDA and against the plaintiffs.
20.Issue No.2- Whether the suit of the plaintiff is barred as in the garb of this suit they are challenging the acquisition proceedings? OPD The onus to prove this issue was also upon the defendant. I have already decided in issue no.1 that the suit property falls in Khasra no.113, Village Masjid Moth, which has been acquired and placed a the disposal of DDA by Notification dated 14.06.1962 issued under Section 22(1) of Delhi Development Act.
It has been argued on behalf of the plaintiffs that vide Award no.1351, land measuring 198 Bighas situated in Masjid Moth was notified for acquisition. In the said award, area of Khasra No.113 has been shown as 3 Bighas 1 Biswas, whereas in possession proceedings it is mentioned that out of 198 Bighas only 104 Bighas was taken into possession and the area of Khasra no.113 possessed by DDA is shown to be of 2 Bighas and 8 Biswas. It has been argued on behalf of the plaintiffs that the entire area of Khasra no.113 was not taken into possession and as per Section 24(2) of The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, the acquisition proceedings are deemed to have been lapsed in respect of land, the possession of which was not taken. It is noted that this argument has been raised by the plaintiffs for the first time during final arguments without there being any averments in the pleadings to that effect. Therefore, this argument is liable to be rejected outrightly, however it would be noted that it is not the case of the plaintiffs that the suit property falls in that part of Khasra No.113, possession of which, according to the plaintiffs, was not taken. It is also not the case of the plaintiffs that they or their predecessors in interest were the landowners of Khasra No.113. Therefore, in any case, it does not lie in the mouth of the plaintiffs that the acquisition proceedings have been lapsed due to non-taking of possession of part of Khasra No.113 by DDA. It is also an admitted position that the plaintiffs have not filed any writ petition for claiming any benefits under Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, for seeking any declaration thereunder. The Constitutional Bench of Hon'ble Supreme Court has in SLP(C) Nos. 9036-9038 of 2016, titled as "Indore Development Authority Vs. Manohar Lal & Ors", in its judgment dated 06.03.2020, has laid down that the mode of taking possession under the Land Acquisition Act, 1894 and as contemplated under Section 24(2) of The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, is by drawing of possession proceedings / memorandum after passing of acquisition Award and thereafter the land vests in State and there is no lapse under Section 24(2) of the said Act.
Therefore, in the light of the judgment in Indore Development Authority (supra), the argument of acquisition having been lapsed in the present case, is liable to be rejected. In "Commissioner, Bangalore Development Authority Vs. Brijesh Reddy & Anr. (2013) 3 SCC 66, the Hon'ble Supreme Court, held as follows:
"18. It is clear that the Land Acquisition Act is a complete code in itself and is meant to serve public purpose. By necessary implication, the power of the civil court to take cognizance of the case under Section 9 CPC stands excluded and a civil court has no jurisdiction to go into the question of the validity or legality of the Notification under Section 4, declaration under Section 6 and subsequent proceedings except by the High Court in a proceeding under Article 226 of the Constitution. It is thus clear that the civil court is devoid of jurisdiction to give declaration or even bare injunction being granted on the invalidity of the procedure contemplated under the Act. The only right available for the aggrieved person is to approach the High court under Article 226 and this court under Article 136 with self-imposed restrictions on their exercise of extra ordinary power".
In the light of foregoing discussions and the settled law, it is held that the suit of the plaintiffs is barred as in the garb of the present suit, they are challenging the acquisition proceedings. This issue is thus decided in favour of the defendant and against the plaintiffs.
21.Issue No.3- Whether the plaintiff is entitled for the decree of permanent injunction as prayed in para (a) of the prayer clause? OPP and Issue No.4- Whether the plaintiff is entitled for the decree of mandatory injunction as prayed in para (b) of the prayer clause? OPP.
These two issues no.3 & 4 are taken up together being interlinked with each other. The onus to prove these two issues was upon the plaintiffs.
I have already decided in issue no.1 that the suit property falls in Khasra no.113 which is the acquired land and has been placed at the disposal of DDA. Therefore, I proceed to decide these two issues in the light of the fact that the suit property is the govt acquired land and whether the plaintiffs can be given any relief of permanent and mandatory injunction PW-1 in his testimony relied upon sale documents Ex.PW-1/1(colly) in the form of GPA, Agreement to Sell, Will, Receipt of consideration, all dated 26.05.1986 alleged to have been executed by Smt. Shankari Devi in favour of Sh. Mehmood (uncle of the plaintiffs). Another set of such documents dated 18.03.1992 Ex.PW1/2 (colly) purported to have been executed by Sh. Mehmood in favour of Sh. Maksood (father of the plaintiffs). Ex.PW1/3 (colly) is another set of sale documents dated 15.07.2004 alleged to have been executed by Sh. Maksood in favour of his sons (the plaintiffs in the present suit).
22. The Ld. Counsel for the defendant has argued that these sale documents etc forged and fabricated as these are not the registered documents, do not bear license number of the Notary Public and also do not contain the number of registration of the document in the register of the Notary Public. In addition to this, it has been pointed out that the witnesses to these documents are common in these three sets of sale documents. I am in agreement with the contentions raised by the counsel for the defendant in this respect. Therefore, these documents do not inspire confidence and their genuineness is highly doubtful. Moreover, it is a settled law that after issuance of notifications under Section 4 and 6 of the Land Acquisition Act, 1894, all sale transactions entered into, are illegal and void ab initio. Therefore, these documents are of no help to the plaintiffs for seeking injunction against the defendant in respect of the suit property. On the contrary, it is proved that the plaintiffs are the trespassers / encroachers on the government acquired land. The plaintiffs have also relied upon few documents to show that they are the owners of the suit property and the possession is uninterrupted, peaceful, long, continuous, unfettered and undisputable. These are documents in the shape of water bills, house tax receipts, telephone bills, electricity bills, mobile bills, ID proofs (election ID, Ration Card, Driving License), etc. PW-5 Sh. Suresh Kumar, Zone Inspector, Property Tax, SDMC appeared and stated that the summoned record of house tax in respect of the suit property was not available in the records of the Property Tax Department. Therefore, the house tax receipts have not been proved as per the Indian Evidence Act. Moreover, payment of house tax does not confer any rights in favour of the person having receipts thereof.
Ld. Counsel for the defendant has placed reliance on the judgment passed in "Pushpendra Singh & Ors Vs. LG of Delhi & Ors." WP(C) No.2525/2003 decided by the High Court of Delhi vide judgement dated 28.03.2012, wherein it has been held that the documentary proof, i.e. Voter Identity Cards, Ration Cards, allotment of house numbers by MCD to the petitioners' houses, etc does not indicate their possession upon the subject land. The Hon'ble Apex Court in Jagpal Singh & Ors Vs. State of Punjab & Ors. MANU / SC /0078 / 2011, has reiterated that long duration of illegal occupation on the Gram Panchayat's land or huge expenditure in making construction thereon, must not be treated as justification for condoning / regularisation of the illegal occupation thereon. Therefore, the documents produced by the plaintiffs would not authorise them to encroach upon or lay their claims on the acquired government land and seek permanent and mandatory injunction against the true owner. The plaintiffs are the trespassers on the land owned by the DDA.
I would like to refer to the observations of the Hon'ble Supreme Court in its judgement in the case of Rame Gowda (dead) by LRs & Anr (2004) 1 SCC 769 wherein it has been held in para 9 of the judgment that a person cannot claim to be in settled possession unless the possession of the person is acquiesced to, by the true owner and there is a right to every owner to use reasonable force to throw out a person who is not in settled possession.
The plaintiffs have asserted that at the time of demolition of the suit property by DDA on 31.01.2014, the suit property was lying sealed by the MCD. In this regard, it is noticed that the plaintiffs have miserably failed to prove this averments in evidence. On the contrary, the photographs filed by the defendant show that the property was not lying in sealed condition but was being used as a Kabari Shop. There was admittedly no gate affixed on the suit property. The plaintiff no.3, Intezar Ahmed had given an undertaking to DDA officials on the date of demolition action on 31.01.2014 that he will vacate the suit property within 10 days and his goods and men were staying there in the suit property and he will make some alternative arrangement and till then he requested that he may be allowed to stay there in the suit property. The said undertaking exhibited as Ex.PW1/D1. The demolition action was undertaken by the defendant on 31.01.2014 and the demolition report Ex.DW1/8 filed by DDA shows that one Kabariwala was removed with the help of JCB and an area of 117 sq.yds had been reclaimed by DDA. Hence, it cannot be concluded that the suit property was lying in sealed condition at the time of demolition. On the contrary, the documents and the photographs filed by the DDA proves that the demolition was carried out on 31.01.2014 and the plaintiffs were removed from the suit property. The plaintiffs were trying to re-encroach upon the suit land which is reflected from the complaint made by DDA to the concerned police station which is Mark DW-1/13.
The plaintiffs have also raised the plea that no notice was served upon the plaintiffs before demolition. In this respect the reliance has been placed by the Ld. Counsel for the defendant on judgement dated 03.11.1993, passed by Hon'ble Delhi High Court in "Rajinder Kakkar and Ors Vs. DDA", reported as 54(1994) DLT 484, wherein it has been held that the petitioners being rank trespassers or encroachers on public land, having constructed buildings without obtaining any approval from the MCD, are not entitled to any relief against the non-compliance of the provisions of Section 30 of the Delhi Development Act. In the light of the said judgement, it is held that the plaintiffs in the present case are not entitled to be served with the notice prior to the demolition action, being the trespassers and encroachers on the government land. The action of DDA in the present circumstances is fully justified. The suit land is part of the park and is required for public purpose and hence no injunction can be granted being the trespassers and encroachers on the government land. The action of DDA in the present circumstances is fully justified. The suit land is part of the Park and is required for public purpose and hence no injunction can be granted.
The plaintiffs have instead of proving its own case has tried to find faults in the defence taken by DDA in the present case. In the matter of "R. Hanumaiah & Anr Vs. State of Government of Karnataka and Ors." (2010) 5 SCC 2003, Hon'ble Apex Court specifically held that it is for the claimants to establish their entitlement to suit properties and weakness of Government's defence or absence of contest, are not sufficient to decree suits against the Government. The present suit is a simplicitor injunction suit without there being any declaration of ownership. The defendant has raised cloud on the title of the plaintiffs qua the suit land and therefore in the light of the settled law laid down in Anathula Sudhakar Vs. P. Buchi Reddy (dead) by ORs & Ors., (2008) 4 SCC 594, by the Hon'ble Supreme Court, the present suit is not maintainable in the present form.
In the light of the above discussions and case laws, it is established that the petitioners being the trespassers and encroachers of public land, are not entitled to any relief from this court much less the relief of permanent and mandatory injunction. Accordingly, the issues no.3 and 4 are decided in favour of the defendant and against the plaintiffs.
23.Issue No.5- Whether the plaintiff is entitled for damages as prayed in para (c) of the prayer clause? OPP In view of the aforesaid discussion and findings on issues no.1 to 4, it is held that the plaintiffs being the encroachers and trespassers on the government land, have no right, title or interest in the suit property and thus, are not entitled for damages as prayed in para-C of the prayer clause. The DDA was within its rights to protect its land from encroachers and use the land as per its requirement. Accordingly, the issue no.5 is decided in favour of the defendant and against the plaintiffs.
24. In the light of discussion made herein above and in view of my findings on issues no.1 to 5, suit of the plaintiffs is dismissed with costs of Rs.5 Lakhs (Five Lakhs). In addition to this, in view of the plaintiffs having encroached upon the government land and enjoyed the illegal and unauthorised possession over the government land for the last more than 30 years (since 26.05.1986, the time when uncle of the plaintiffs Sh. Mehmood had allegedly purchased the suit property and subsequently by their father). The cost of Rs.5 lakhs (Five Lakhs) is imposed on the plaintiffs to be paid to the defendant.
25. Decree sheet be prepared accordingly.
26. File be consigned to Record Room after due compliance.
Announced in the open Court on 23.12.2021
(LALIT KUMAR)
Additional District Judge 04(SE),
Saket Courts, New Delhi.
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