Delhi District Court in Shakur Pur Jatav Samaj Kalyan Samiti vs. Surender Kumar Chadha & Ors. [13.10.2022]

IN THE COURT OF SH. VIKRAM, ADDL. SESSIONS 

JUDGE-02-CUM-SPECIAL JUDGE-NDPS ACT, NORTH 

WEST DISTRICT, ROHINI COURTS, DELHI 

Misc. Criminal No. 09/2019 

SHAKUR PUR JATAV SAMAJ KALYAN SAMITI 

(Through Sh. Jaipal Singh, Vice President 

& Authorized Representative) 

WZ-101, Shakurpur Village, 

Delhi-110034.                                                                                                                     .... Complainant 

Vs. 

1. Sh. SURENDER KUMAR CHADHA M/s. Shakti Timber 

2. Smt. GULSHAN CHADHA W/o Sh. Surender Kumar Chadha Sector-8, Rohini, Delhi-110085. 

3. Sh. RAVI ANAND S/o Late Sh. Ayodhaya Nath Anand Shakti Timber Store 

4. Sh. BRIJ MOHAN ANAND S/o Late Sh. Ayodhaya Nath Anand Shakti Timber Store 

All At : 

WZ-333, Shakurpur Village, 

Near Yadav Market, 

Delhi-110034.                                                                                                      .... Respondents/Accused

Date of Institution : 27.03.2019 

Date when judgment was reserved : 13.10.2022 

Date when judgment is pronounced : 13.10.2022 

ORDER ON SUMMONING

1. This is a complaint filed by the complainant under Section 200 Cr.P.C for summoning the accused persons namely Sh. Surender Kumar Chadha, Smt. Gulshan Chadha, Sh. Ravi Anand and Sh. Brij Mohan Anand for the commission of offence punishable under Section 3 (1) (iv) (v) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 read with Sections 420/506/34 IPC.

2. The allegations of the complainant are that the property/land bearing No. WZ-333, out of Khasra No. 30/4/11 measuring about 500 sq. yards, situated in the abadi of Lal Dora, Village Shakurpur, Delhi (land in question) was alloted to Harizan Gram Sabha in the year 1954 and after allotment of land to Gram Sabha, the said land remained under the physical possession and use of Harizan Gram Sabha duly represented by Harizan Sudhar Samiti Society. However, the accused persons through their associates wrongfully got a part of land in question transferred in their names in connivance with the then President of Society and thereby, grabbed the land of the complainant society. The complainant also submitted that some civil suits were also filed against the respondents/accused persons which were later on withdrawn and some other litigations are pending.

3. The main crux of the matter is that the accused persons by making false and fabricated documents had grabbed the land of Harizan Gram Sabha which had been specially alloted for SC members, therefore, the accused persons have committed an offence under Section 3 (1) (f) and (g) of SC/ST Act through forged and fabricated documents.

4. In the present complaint case, the complainant has examined only one witness in pre-summoning evidence and this witness is the AR of the complainant namely Sh. Jaipal Singh who has proved the resolution in his favour along with caste certificate and registration certificate of the society to represent Shakur Pur Jatav Samaj Kalayan Samiti.

The complainant has also brought on record the Khatauni for the year 2009-2010 issued on 07.02.2013 received through RTI application which shows that the land in question belongs to Harizan Sudhar Samiti, Shakurpur Village, Delhi.

5. I have heard Ld. Counsel for the complainant who has also placed reliance on the judgment of Hon'ble Supreme Court in Jagpal Singh & Ors. v. State of Punjab passed in Civil Appeal No. 1132/2011 dated 28.01.2011 as per which any land which is vested to Gram Sabha and is non-transferable, cannot be allowed to be un-authorizedly occupied by any means. Even if, there is long duration of such illegal occupation or huge expenditure in making constructions, it must not be treated as a justification for condoning this illegal act or for regularizing the illegal possession.

6. The complainant has not produced any document on record to show through which document the accused persons had entered into the land in question, however, he has filed the copy of order of civil suit as Mark A. Along with that, complainant has also filed the copy of written statement of accused No.1, 3 and 4. As per written statement, this land was initially alloted to Harizan Gram Sabha in the year 1954 and was in possession and control of Harizan Sudhar Samiti Society who issued an SPA in favour of Sh. Kanhaiya Lal, President of the society on 25.01.1975 and thereafter, on the basis of said SPA, Sh. Kanhaiya Lal sold the said land to Sh. Raj Singh Malik and Sh. Ram Kumar Malik on 07.02.1975 vide registered documents. The accused No. 1, 3 and 4 purchased this property from Sh. Raj Singh and Sh. Ram Kumar Malik vide notorized documents on 05.04.1980 and since then they are in possession of that property.

The testimony of CW-1 Sh. Jaipal Singh in pre-

summoning evidence only shows that the land in question was initially alloted to Gram Sabha and it is alleged that the accused persons had illegally encroached upon the land in question and thereby they had committed an offence under Section 3 (I) (f) and (g) of SC/ST Act. However, this land was sold by Samiti itself not directly to the accused persons but to one Sh. Raj Singh Malik and Sh. Ram Kumar (as gathered from the written statement filed on record in the suit filed by the complainant/petitioner) and the accused persons came into possession of this property in the year 1980 through notorized documents executed in their favour by Sh. Raj Singh and Sh. Ram Kumar Malik.

7. The allegations against accused persons are of conspiracy with the President of Harizan Sudhar Samiti Society to grab the land in question. However, it is beyond any stretch of imagination to assume or accept that the alleged accused persons who came into land in 1980 could have conspired with the President to grab the land in 1975 when he sold the property to Sh. Raj Singh and Sh. Ram Kumar Malik. The accused persons are not the first one who had taken land from Sh. Kanhaiya Lal. This land was initially sold to Raj Singh Malik and Ram Kumar and it is not alleged that they were part of any conspiracy. If Raj Singh and Ram Kumar had not done any illegal act, as they are not made an accused in this case, the purchase of property by the respondents/accused persons from Raj Singh and Ram Kumar cannot be termed illegal to attract the offence under Section 3 (i), (f) and (g) of SC/ST Act.

It is true that as per the judgment of Hon'ble Supreme Court in Jagpal Singh Vs. State of Punjab, every claim/occupation over Gram Sabha land by any person through any means is illegal and they need to vest back to Gram Sabha and authorities must act in that respect, however, if all such transfers are held to be an offence under Section 3(i) (f) and (g) of SC/ST Act, thousands of purchasers who have purchased land in such manner will have to be prosecuted. The Act was passed not to be used as a tool to attack the transactions between innocent buyers and sellers but to defend the right of the people belonging to SC/ST community.

Therefore, I do not find any material in the complaint or in the testimony of CW-1 sufficient enough to summon the accused persons. As there is no sufficient ground to proceed, the present complaint, in view of Section 203 Cr.P.C, is dismissed.

File be consigned to record room.

Copy of the order be given dasti.

(Vikram) 

Announced in Open Court 

ASJ­02­cum­Special Judge (NDPS), on 13th Day of October, 2022 

North­West District, Rohini Courts, Delhi.

Delhi HC: Tehbazari right does not entitle occupant to raise pucca construction & usurp Govt land [22.08.2022]

IN THE HIGH COURT OF DELHI AT NEW DELHI 

Reserved on: 08.08.2022 

Pronounced on: 22.08.2022 

W.P.(C) 8206/2016 

VED PRAKASH MANCHANDA                                                                                         ..... Petitioner 

Through: Mr. N. Tripathi and Divyanshu Priyam, Advocates 

versus 

DELHI URBAN SHELTER IMPROVEMENT BOARD & ORS.                                   ..... Respondents 

Through: Mr. Parvinder Chauhan, Advocate 

CORAM: HON'BLE MR. JUSTICE GAURANG KANTH 

JUDGMENT

GAURANG KANTH, J.

1. The Petitioner filed the present Writ Petition, inter alia, seeking the following reliefs:

"(i) to pass appropriate Writ, Order, Direction, in the nature of Mandamus, commanding upon the respondents to regularize the long and continuous occupation of the petitioner for the last more than 25, by executing a Lease Deed / any other requisite document of title, in favour of the petitioner in respect of the 'suit premises' i.e. C - 14, Shiv Shankar Market, Madangir, New Delhi.

(ii) to quash the order dt. 24.08.2016 as passed by the Hon'ble Lieutenant Governor of Delhi, being contrary to law.

(iii) To quash the order dt. 29.11.2011, which is contrary to the principles of promissory estoppel and issue directions to the respondents, not to disturb the petitioner from use and enjoyment of the property bearing no. C -14, Shiv Shankar Market, Madangir, New Delhi in the Interest of Justice;

(iv) to pass such further order(s) / direction(s), as this Hon'ble Court may deem fit, proper and appropriate in the circumstances of this case."

2. It is the case of the Petitioner that he has been in use and occupation of premises No. C-14, Shiv Shankar Market, Madangir, New Delhi ("Property in dispute"), ever since 1990-91. It is the case of the Petitioner that since then he was enjoying this site as a Tehbazari site. The Respondents used to collect License Fee / Damages / Penalty from the Petitioner from time to time. Electricity connection was sanctioned in favour of the Petitioner based on the 'No Objection Certificate' issued by the Respondents.

3. The Petitioner received a Regularization Notice dated 05.08.2002 by the then Slum & J. J. Department, whereby the Petitioner was called upon to pay the regularization charges @ Rs. 6,39,418/-, as per L.&D.O. rates of 01.04.1999, within a period of 30 days. The Petitioner deposited a sum of Rs. 6,39,418/- vide receipt no. 338976, dated 07.08.2002 towards the regularisation charges. However, despite the payment and completion of all other formalities, no Lease Deed was executed by the Respondents.

4. Aggrieved by the inaction of the Respondents, the Petitioner vide representation dated Nil approached the Secretary, Public Grievances Commission, Government of N.C.T. of Delhi seeking a direction to direct the Slum & J. J. Department of MCD to execute the sale deed in favour of the petitioner pertaining to Shop No. C-14, Shiv Shankar Market, Delhi. The Respondents vide letter dated 27.12.2002 informed the Petitioner that it has been decided that the Department will charge Rs. 44,472/- per square meter from the petitioner as cost of land equal to average auction price including the damage charges for 10 years, the property in question will be sold to the Petitioner as per Rules and Regulations. Later, vide letter dated 16.11.2004, the competent authority asked the Petitioner for completion of formalities so that the Lease can be executed subject to payment of auction rates prevalent at present and after approval of the Hon'ble Lieutenant Governor, Delhi. The Petitioner completed all the formalities and deposited the amount as demanded by the Respondents, however, no Lease Deed was executed in his favour.

5. The Petitioner filed W.P.(C) No. 1102/2010 which was disposed of by this Hon'ble Court vide order dated 14.03.2011 with a direction to the Respondent/DUSIB to treat the writ petition as representation of the petitioner and to take a decision either to execute the sale deed or to pass a speaking order of rejection. Hence in compliance of the order of this Court, the Respondent/DUSIB passed a speaking order dated 29.11.2011 rejecting the claim of the Petitioner and held that the petitioner herein has tresspassed Government land and is required to be evicted from the said Land. Subsequently, the premises of the Petitioner was sealed on 23.02.2016 pursuant to an order dated 01.02.2016 passed by the Respondent/DUSIB. The Petitioner preferred W. P. (C) No. 2007/2016 challenging the said action of the Respondents, however, the said Writ Petition was withdrawn with liberty to file appropriate legal proceedings. The Petitioner preferred an appeal against the order dated 01.02.2016 passed by Director (Vig.), DUSIB before the Hon'ble Lieutenant Governor of Delhi. Later on vide order dated 24.08.2016, the said Appeal No. 38/2016 preferred by the petitioner was dismissed by the Hon'ble Lieutenant Governor, Delhi. By way of the present writ petition, the Petitioner has challenged the order dated 24.08.2016 passed by Hon'ble Lieutenant Governor of Delhi.

6. Respondent Nos. 1 & 2 has filed the Counter Affidavit in the present proceedings raising preliminary objection regarding the maintainability of the Writ Petition. It is the stand of Respondent Nos.1 & 2 that the Petitioner is an encroacher on the public land and the Petitioner has no right to retain the possession of the land in question. The property in occupation of the Petitioner was earmarked and earlier was being used as community lavatory/toilet. However, the same was encroached upon by the Petitioner whereupon a multi- storied building has been constructed by him.

7. Mr. N. Tripathy, learned counsel for the petitioner contended that the impugned order dated 24.08.2016 passed by Hon'ble Lieutenant Governor of Delhi is perverse and has been passed without taking into consideration the fact that the Respondent/DUSIB vide demand notice dated 05.08.2002 has asked the Petitioner to deposit an amount of Rs.6,39,418/- for regularization which has been duly deposited by the Petitioner. Learned counsel further contended that as per Principles of Promissory estopple, the respondents are bound to execute the lease deed in respect of the suit property when the appellant had acted and complied with the directions issued vide letter dated 05.08.2002.

Learned counsel further relied on the Tehbazari licence issued in his favour contending that he is not a trespasser. Learned counsel further contended that the impugned order is violative of Article 14 of the Constitution of India, and discriminatory, as the persons similarly placed to the petitioner, have been granted a relief, akin to that as claimed by the petitioner herein.

8. Mr. Parvinder Chauhan, learned counsel for the respondent/DUSIB contended that the Petitioner is claiming his right over the property in question based on the demand notice dated 05.08.2002 raised by Slum & J. J. Department, Municipal Corporation of Delhi. The said demand notice was issued in pursuance of the Resolution No. 372 dated 15.10.2001 passed by the House of the Municipal Corporation of Delhi. However, the implementation of the said Resolution was kept in abeyance vide Circular dated 21.07.2002. Subsequently vide Resolution No. 396 dated 25.10.2004, the House of the Municipal Corporation of Delhi carried out an amendment in its earlier Resolution No. 372 dated 15.10.2001 to the following effect: -

"Resolved further that the following clause dealing with the trespasser be also incorporated:-

A trespasser shall not be entitled to be considered for payment of damage charges or license fee in regard to Slum Properties/ Slum Rehabilitation tenements/ flats including the JJR Properties/ tenements, plots whether commercial, residential or institutional, stalls/kiosks, tharas existing not only in the walled city but also all over Delhi. This conditions shall be applicable in respect of the corporation Resolution No. 372 dated 15.10.2001 also such trespasser shall be evicted. However, he/she shall be liable to pay damage charges in respect of the Slum Properties, as aforesaid, for the period during which the land/premises remained under his/her occupation. The recovery of Such damage charges shall be effected in accordance with law".

9. From the amended Resolution No. 396 dated 25.10.2014, it is evident that the benefit of Resolution No. 372 dated 15.10.2001 cannot be extended to the trespassers of the Government Land as the same was withdrawn. Learned counsel for the Respondents further pointed out that Resolution No. 372 dated 15.10.2001 was kept in abeyance vide Circular dated 21.07.2002 that is prior to the issuance of the demand letter dated 05.08.2002. It is further the submission of the Respondents that the demand letter dated 05.08.2002 was issued based on a Resolution which was contrary to Section 200 of the Delhi Municipal Corporation Act, 1957 ("DMC Act"). As per Section 200 of the DMC Act, property of the Corporation could be disposed of only by the Commissioner that too with the sanction of the Standing Committee/Corporation, as the case may be and subject to a further condition that the same shall not be sold, leased or otherwise transferred at a consideration less than which it could have fetched in normal and fair competition. Further it is contended by the Respondents that as held by this Court in the case of B.S. Khurana Vs. Municipal Corporation of Delhi reported as (2000) 7 SCC 679, the property of the Corporation could not be sold/transferred even by the unanimous resolution of the house of the Corporation if the same is contrary to the provisions contained in the said Section 200 of the DMC Act.

10. This Court heard the arguments advanced by the learned counsel for the parties and examined the documents placed on record by the parties.

11. It is the specific case of the Respondent/DUSIB that the Petitioner is an encroacher of the Government Land. The land was earmarked and earlier was being used as community lavatory/toilet. However, the same was encroached upon by the Petitioner whereupon a multi- storied building has been constructed by him. No title documents are produced by the Petitioner to establish his right over the property in question. The Petitioner preferred the present Writ Petition based on his possessory rights as he is claiming to be in possession of the land in question from 1991-1992. Hence it is evident that the Petitioner is neither the owner nor tenant qua the land in question, rather he is an illegal and unauthorised occupant of the Government Land. Mere possession of a Tehbazari right does not entitle the occupant to usurp the Government land. Tehbazari right does not entitle the occupant to raise pucca construction. In the present case, record reveals that the Petitioner has encroached upon the public utility land and has raised pucca construction which cannot be permitted.

12. It is well settled principle of law that no order can be passed to protect the possessory rights of an illegal encroacher of the Government Land. The Hon'ble Apex Court in the case of Jagpal Singh and others Vs. State of Punjab and others reported as 2011 (11) SCC 396 has taken judicial notice of the fact that since independence, in large parts of the country, unscrupulous persons using muscle powers, money power and political influence have systematically encroached on public utility land. The Hon'ble Supreme Court has also observed that this has been done with the active connivance with the State Authorities. The Hon'ble Apex Court deprecated the action of the State Authorities either in allotting the public utility land in favour of a person or in permitting an encroacher to occupy such public utility land. In another case, titled as M.I. Builders (P) Ltd. Vs. Radhey Shyam Sahu reported as 1999 (6) SCC 464; the Hon'ble Supreme Court ordered restoration of a park after demolition of a shopping complex constructed at the cost of over Rs.100 Crores. Hence while exercising the discretionary Jurisdiction under Article 226 of the Constitution of India, no relief can be extended to the encroacher of Government land to protect his possessory rights.

13. The Petitioner's case is predicated on the premises that the Respondents, based on the Resolution No.372 dated 15.10.2001 of the Municipal Corporation of Delhi, raised a demand vide letter dated 05.08.2002 for the regularization of the property in question. Since the Petitioner deposited the said demanded amount and completed all formalities as required by the Respondents, the Petitioner is claiming that he has a right to claim regularization. In this regard, it is relevant to quote the dicta of the Hon'ble Supreme Court in its recent Judgement in the case of Joginder & Anr. Vs. State of Haryana & Ors. reported as (2021) 3 SCC 300 which reads as follows:

"8. It is required to be noted that the persons in illegal occupation of the Government Land/Panchayat Land cannot as a matter of right, claim regularization.

Regularization of the illegal occupation of the Government land/Panchayat Land can only be as per the policy of the State Government and the conditions stipulated in the Rules. If it is found that the conditions stipulated for regularization have not been fulfilled, such persons in illegal occupation of the Government Land/Panchayat Land are not entitled to regularization. ............."

14. In the present case, it is the case of the Respondent/DUSIB that the Resolution No.372 dated 15.10.2001 was amended vide another Resolution No.396 dated 25.10.2004 and as per the amended resolution, the trespassers are not entitled to be considered for the payment of damage charges or license fee qua the Slum Properties/ Slum Rehabilitation tenements/ flats including the JJR Properties/ tenements, plots whether commercial, residential or institutional, stalls/kiosks, tharas. It is also pertinent to note here that the Resolution No. 372 dated 15.10.2001 was kept in abeyance vide Circular dated 21.07.2002, even prior to the issuance of the demand letter dated 05.08.2002. Hence the Respondents ought not to have been issued the demand letter dated 05.08.2002. The Petitioner, who is a trespasser of the Government Land, is not entitled for the benefit of the said Resolution. Therefore, in view of the law laid down by the Hon'ble Supreme Court in Joginder & Anr. (supra), the Petitioner, who is an illegal encroacher of the Government Land, has no right to claim regularisation of his possessory rights.

15. The Petitioner filed the present Writ Petition invoking the principle of promissory estoppel against the Respondents to claim his right over the property in question. As held by the Hon'ble Supreme Court in UOI & Ors Vs Godfrey Philips India Ltd & Ors., reported as 1986 AIR (SC) 806, the relevant portion of which reads as follows:

"...It is equally true that promissory estoppel cannot be used to compel the Government or a public authority to carry out a representation or promise which is contrary to law or which was outside the authority or power of the officer of the Government or of the public authority to make. We may also point out that the doctrine of promissory estoppel being an equitable doctrine it must yield when the equity so requires, if it can be shown by the Government or public authority that having regard to the facts as they have transpired, it would be inequitable to hold the Government or public authority to the promise or representation made by it, the Court would not raise an equity in favour of the person to whom the promise or representation is made and enforce the promise or representation against the Government or public authority. The doctrine of promissory estoppel would be displaced in such a case, because on the facts, equity would not require that the Government or public authority should be held bound by the promise or representation made by it......."

16. This Court finds that the letter dated 21.07.2002 and the amended Resolution No.396 dated 25.10.2004 are in the public interest and in accordance with law. Benefits of the Government Policies should be extended to the law-abiding citizens and not to the illegal trespassers. Hence as held by the Hon'ble Supreme Court in Godfrey Philips India Ltd. (supra), the principle of Promissory Estoppel cannot be extended to the Petitioner.

17. Learned counsel for the Petitioner alleges discrimination against him based on the Judgment dated 26.07.2007 passed by this Court in W. P. (C) No. 9192/2006 titled as Chandra Shekhar Vs. MCD & Ors. A perusal of the said Judgment shows that the said order was passed in the peculiar facts and circumstances of the said case. Hence the Petitioner cannot take any benefit from the said Judgment and as such this argument of the Petitioner holds no ground.

18. In view of the discussion herein above, this Court finds no merits in the present Writ Petition. No interference in the impugned order dated 24.08.2016 passed by the Hon'ble Lieutenant Governor of Delhi is called for. Writ Petition is hereby dismissed. The Respondents are directed to refund the amount deposited by the Petitioner, if any, after deducting the damage charges for using the said property. The Respondents are further directed to take immediate steps to retrieve the possession of the property in dispute from the Petitioner being the Government land and further put the same to use for the benefit of public at large as per the permissible land use.

GAURANG KANTH, J.

AUGUST 22, 2022

Delhi District Court in Afzal & Ors. vs. DDA [23.12.2021]

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.

Delhi District Court in Hari Singh vs. Om Prakash [21.10.2021]

In the Court of Ms. Rishika Srivastava, Civil Judge (West)- III, Tis Hazari, Delhi

CS No. 60844416

CNR No. DLWT030004422013

 Hari Singh Vs. Om Prakash 

1. Hari Singh s/o Shri Bhagwan Dass R/o V.P.O, Mundka, New Delhi

2. Surat Singh, S/o late Shri Udmi Ram R/o V.P.O Mundka, New Delhi 

3. Ram Kumar s/o late Sh. Harsaroop R/o V.P.O, Mundka, New Delhi 

4. Zile Singh s/o late Shri Bhim Singh R/o V.P.O, Mundka, New Delhi 

5. Umed Singh s/o Sh. Gokal Chand R/o V.P.O, Mundka, New Delhi 

6. Nafe Singh s/o Sh. Mir Singh R/o V.P.O, Mundka, New Delhi 

7. Satbir Singh s/o Shri Fateh Singh R/o V.P.O, Mundka, New Delhi 

8. Jai Prakash s/o Sh. Ram Mehar R/o V.P.O, Mundka, New Delhi 

9. Parveen Kumar s/o Sh. Om Prakash R/o V.P.O, Mundka, New Delhi 

10. Anil Kumar s/o Sh. Dhir Singh R/o V.P.O, Mundka, New Delhi 

11. Balraj s/o Shri Ganeshi R/o V.P.O, Mundka, New Delhi 

12.Rajinder Kumar s/o Mohan Lal R/o V.P.O, Mundka, New Delhi 

13.Satpal s/o Shri Mir Singh R/o V.P.O, Mundka, New Delhi 

14.Rajpal s/o Shri Neki Ram R/o V.P.O, Mundka, New Delhi 

15.Fateh Singh s/o Shri Baldeva R/o V.P.O, Mundka, New Delhi 

16.Kartar Singh s/o Shri Ram Phal R/o V.P.O, Mundka, New Delhi 

17.Braham Parkash R/o V.P.O, Mundka, New Delhi 

18.Suresh Kumar s/o Shri. Hardatt Singh R/o V.P.O, Mundka, New Delhi 

...... Plaintiffs 

Vs. 

1. Om Parkash S/o late Sh. Hukmi R/o Village Hiran Kudna New Delhi 

2. Ram Kumar Singh s/o Late Sh. Pratap Singh R/o House No. 472, V.P.O Mundka New Delhi 

3. Sh. Rambir Singh S/o Sh. Pratap Singh R/o V.P.O Mundka New Delhi 

4. The Gaon Sabha Mundka Through its B.D.O (West) B.D.O Compex, Rohtak Road Nangloi, New Delhi-110041 

.... Defendants 

Date of Institution : 07.10.2013 

Date on which reserved : 05.10.2021 

Date of Judgment: 21.10.2021 

SUIT FOR PERMANENT & MANDATORY INJUNCTION 

JUDGMENT

1. The present suit for permanent and mandatory injunction has been filed by the abovementioned 18 plaintiffs, all of whom claim to be residents of Mundka village, against the defendants.

PLAINTIFFS' VERSION:

2. The case of the plaintiff in brief is that:

a. The plaintiffs are residents of village Mundka, New Delhi and are in joint use, occupation and possession of plot bearing no. 776/1/2/2 area measuring 2 biswas, situated in the area of extended lal dora, Village Mundka, New Delhi (hereinafter referred as 'suit property');

b. The suit property comprises of a well which is used by the plaintiffs along with the other villagers; c. The members of the Julaha samaj/scheduled caste community specifically used this well for religious purposes;

d. Defendant No. 1 has conspired with defendant No. 4 to usurp the suit property and a collusive suit (bearing No. 362/09) has been filed by the defendant no. 1 through defendant No. 2 against the block development officer; e. The abovementioned collusive suit is with respect to plot bearing No. 776/1/2/1, Village Mundka, New Delhi but the present suit property has also been included in the side map filed therein with a view to unlawfully grab the well which is reserved for public purposes; f. Defendant no. 3 has illegally installed an electricity connection in his own name in the suit property; g. The ownership of the suit property vests with the gram sabha and not with defendant No. 1,2, and 3; h. The well is situated on the suit property and the same is evident from the revenue records and demarcation report prepared by the revenue department;

i. The grievance of the plaintiff is that the defendant no. 4, SDM, BDO and SHO concerned are not taking any action against defendant No.1,2, and 3 and defendant No. 4 is conspiring with the other defendants so as to enabled them to grab the land;

j. Moreover, on 15.09.2013, defendant 1, 2 and 3 along with certain unidentified mussel man reached the suit property and tied to encroach upon it.

3. Therefore, the plaintiff was constrained to file the present suit seeking permanent and mandatory injunction.

VERSION OF DEFENDANT NO. 2:

4. The case of the defendant no. 2 as stated in his written statement is as follows:

a. The plaintiffs are neither the owners nor in possession and occupation of the suit property and thus have no locus standi to file the suit;

b. As per the plaintiffs' own case, defendant no. 4 Gaon Sabha is the owner of the suit property;

c. Defendant No. 2, and 3 are also residents of the same village and have the same right as the plaintiffs to use the suit property;

d. The well situated on the suit property has not been in use since the last 30 years and the water in village Mundka is supplied by Delhi Jal Board;

e. There is no collusion among any of the defendants and defendant no. 1 is the co-owner of property in khasra no. 776/1/2/1, Village Mundka, New Delhi and has been in possession of the same since 35 years;

f. The defendants have not wrongfully and deliberately included the suit property in the site map filed in the suit bearing No. 362/09;

g. The plaintiffs has not filed any document showing that the suit property was used by members of Julaha Samaj or any weaker section /schedule caste community; h. Defendant no. 1 never tried to encroach upon the suit property.

Therefore, it has been prayed that the suit of the plaintiff be dismissed with cost.

VERSION OF DEFENDANT NO. 4:

5. The case of defendant No. 4 in brief is:-

a. The plaintiffs have no locus standi as they are neither the owners nor in possession of the suit property; b. As per the revenue records (aks sizra, demarcation report and khatoni) of the suit property, the land belongs to gaon sabha and the gaon sabha has not acted as collusion with the defendants;

c. The plaintiffs have not filed any document to show that the well on the suit property was used by the Julaha Samaj/Schedule Caste community;

Therefore, it has been prayed that the suit of the plaintiff be dismissed with cost.

REPLICATION:

6. In the replication to the written statements of defendant No. 2 and 4, the plaintiffs denied the averments therein and reaffirmed the case as stated in the plaint. The plaintiffs further asserted that they have a right to file the present suit as they are the members of the Gaon Sabha.

DEFENDANT NO. 1 AND 3 PROCEEDED EX-PARTE:

7. No written statement was filed by defendant No. 1 and 3 and vide order dated 26.02.2014, they were proceeded ex-parte.

ISSUES:

8. From the pleadings, the following issues are framed:

1. Whether the plaintiff has no locus standi to file the present suit? OPD

2. Whether the suit is not maintainable in the present form and nature? OPD

3. Whether the suit is bad for non-joinder and mis joinder of necessary parties? OPD

4. Whether the plaintiff is entitled for the decree of permanent injunction as prayed for against defendant No. 1 to 4? OPP

5. Whether the plaintiff is entitled for decree of mandatory injunction as prayed for? OPP

6. Relief.

EVIDENCE

9. Plaintiff No. 3 was examined as PW-1 who placed reliance upon the following documents:- Ex. PW-1/1 (OSR) Voter I Card of PW-1 Ex. PW-1/1A Certified copy of order dated 20.12.2013 in CS No. 362/09 Ex.PW-1/2 Site map Ex.PW-1/3 Demarcation report 

10. Certain other documents i.e. Mark A to Mark P were also relied upon by PW-1. However, since they were only photocopies, defendant No. 2 objected to their admissibility on the ground of mode of proof.

11. Thereafter, PW-2 Sh. Dharmanand, Patwari from office of SDM, Punjabi Bagh, New Delhi was examined. He relied upon the following documents:

Ex.PW-2/1 (OSR) Khatoni of Khasra No. 776/1/2/2 for the year 2005-2006 Ex. PW-2/2 (OSR) Aks sizra for the year 1976-1977 for village Mundka Ex.PW-2/3 Certified copy of demarcation report dated 13.12.2016 Ex. PW-2/4 Certified copy of the report stating that demarcation report dated 19.11.2008 is in the record of suit No. 362/09

12. Both the witnesses were duly cross examined and discharged. Thereafter PE was closed and the matter was fixed for DE.

13. In DE Sh. Rajesh Kumar, Patwari from SDM Office, Punjabi Bagh, Nangloi, Delhi was examined as DW-1. He placed reliance upon only one document i.e. Khatoni of Khasra No. 776/1/2/2 for the year 2005-2006 (Ex DW-1/1). Defendant No. 2 was examined in chief as DW-2 who placed reliance upon his evidence affidavit Ex. DW-2/A. Thereafter, DW-3 Sh. Chhedi Lal Maurya, JA, Record Room, Tis Hazari, Delhi was examined as DW-3 and he has placed reliance upon certified copy of appeal and judgment order dated 31.10.2016 in RCA No. 11/2014 (Ex. DW-3/1 (colly)). Lastly, Sh. Narender Kumar, Record Keeper from Revenue Department, Tis Hazari, Delhi was summoned and examined as DW-4. He placed reliance upon only one document i.e. Khasra girdawari of khasra no. 776/1/2 pertaining to the year 1988-1989 (Ex. DW-4/1). All the witnesses were duly cross examined and discharged and thereafter, DE was closed.

ISSUE WISE FINDINGS Issues nos. 1 and 2:

Whether the plaintiff has no locus standi to file the present suit? OPD Whether the suit is not maintainable in the present form and nature? OPD

14. Both these issues are being taken up together as they involve common appreciation of evidence and law and because similar arguments have been advanced by both the parties with respect to both of them.

15. On behalf of the defendant no. 2, it has been argued that the plaintiffs have no personal right over the suit property as they neither own it nor are in possession of the same. It has been further argued that the suit property vests with the defendant no. 4 (Gaon Sabha) and the plaintiffs themselves have only claimed to have a right to use the well situated therein, in common with the other villagers, and hence the suit is not maintainable as the plaintiffs lack the locus standi to file it. Reliance has been placed upon Section 91 CPC in this regard and it has been submitted that neither did the plaintiffs obtain the leave of the court to file the present suit nor have they made any averment regarding any special damage which has been caused to them because of the defendant's allegedly unlawful act. Therefore, the suit is liable to be dismissed on this ground alone. The defendant no. 2 has additionally also argued that the plaintiffs have failed to comply with the requirements in Order I Rule 8 CPC and hence the suit is liable to be dismissed on this ground as well.

16. Ld. counsel for defendant no. 4 has advanced arguments on similar lines as the defendant no. 2 and has submitted that the plaintiffs have no right or interest over the suit property and have not suffered any special damage. It has been further argued that the well situated on the suit property is for common use of all the villagers and was not specifically used by the Julaha samajh or any other community, as alleged by the plaintiffs.

17. On the other hand, ld. counsel for the plaintiffs has argued that the plaintiffs are residents of the village Mundka and therefore by virtue of Section 151 of Delhi Land Reforms Act, 1954, they are members of the Goan Sabha and have the right to use the lands vested in it. It has been further submitted that the suit has not been filed in a representative capacity and therefore, Order 1 Rule 8 CPC is not applicable. With respect to the locus standi of the plaintiffs as well the merits of the case, reliance has been placed upon Jagpal Singh and ors v. State of Punjab [(2011) 11 SCC 396].

18. At the outset, it must be stated that the suit has not been filed by the plaintiffs in representative capacity and hence the question of non-compliance with Order I Rule 8 CPC does not arise. Merely because multiple persons have joined hands as plaintiffs before this court, does not imply that the suit has been filed on behalf of all the residents of the village.

19. It is settled law that nuisance is of two types: public and private. With respect to public nuisance or other wrongful acts affecting the public, a suit can be filed only after compliance with Section 91 CPC. However, a suit which is based upon private nuisance or where there is infringement of any special personal right, or threat of such infringement, can be instituted by the person aggrieved directly without having to resort to Section 91 CPC.

20. Before proceeding forward, it is necessary to consider the law contained in Section 91 CPC which reads as under:

91. Public nuisances: (1) in the case of a public nuisance or other wrongful act affecting, or likely to affect, the public, a suit for a declaration and injunction or for such other relief as may be appropriate in the circumstances of the case, may be instituted,"

(a) by the Advocate General, or

(b) with the leave of the Court, by two or more persons, even though no special damage has been caused to such persons by reason of such public nuisance or other wrongful act.

Nothing in this Section shall be deemed to limit or otherwise affect any right of suit which may exist independently of its provisions.

21. Thus, as apparent from the sub-clause (2), the right of the plaintiff to file a suit has not been taken away and it is not otherwise affected by sub-clause (1) and can be exercised independently of it. In Suresh Chander Goyal v. Davinder Singh [2016 SCCOnline Del 3899] it was held that:

"A plain reading of section 91 makes it very clear that there are two modes of escape from the special restriction of section 91 namely proof of special damage and proof of invasion of the special rights of a limited class which will give an independent right of action. If the suit is treated to be in the individual capacity, what would be required of the plaintiffs would be the proof of the nuisance causing damages or violation of any personal or private rights."

22. The Court will now proceed to analyze whether the present suit deals with infringement of private rights or with public nuisance. In the present suit, the plaintiffs have claimed to have a common right to use the well situated on the suit property by virtue of being members of the Goan Sabha and by virtue of being residents of Mundka village. They have not claimed to have any personal right over the suit property or over the well. All that has been averred in the plaint is that the members of the Julaha samaj, a scheduled caste community, used the well for religious purposes. However, the plaint is conspicuously silent upon what exactly this religious purpose is. There are no details about what religious rites or ceremonies the well is/was used for by members of the Julaha community and on what occasion was it so used. PW-1 has also failed to provide these necessary details in his examination in chief by way of affidavit Ex PW-1/A. Further, a meticulous perusal of the entire documentary evidence led by the plaintiffs also reveals that there is absolutely no material on record which shows that the plaintiff has any special right over the suit property or has suffered any special damage on account of its alleged infringement. Thus, no infringement of private right or occurrence of any constituting private nuisance is made out. All that has emerged from the pleadings as well as the evidence of the plaintiffs are allegations of public nuisance and violation of a right available to all the residents of the village Mundka.

23. In these circumstances, it was imperative for the plaintiffs to comply with Section 91(1)(b) CPC and to seek the leave of this Court for instituting the suit. No such leave was taken at the initial stage of institution of the suit or at any later stage. An application under Section 91 and Order I Rule 8 CPC was filed by the defendant no. 2 seeking dismissal of the suit but the same was not pressed and was therefore, kept pending, as noted in order dated 05.04.2016.

However, merely because the defendant no. 2 did not press his application at an earlier stage, does not cure the defect in the suit attributable to the plaintiffs.

24. At this stage, it is also essential to analyze the law laid down in Jagpal Singh (supra). Since the ld. counsel for the plaintiff has strongly relied upon this judgment, the Court deems fit to deal with it in some detail. The factual matrix in Jagpal Singh (supra) was that the Gram Panchayat had filed an application under Section 7, Punjab Village Common Lands (Regulation) Act, 1961 for eviction of certain unauthorized occupants and trespassers from common village land consisting of a pond. The concerned Collector, instead of ordering the eviction, ordered that the Gram Panchayat should recover the cost of land from such trespassers. Against this order, an appeal was filed by certain persons before the Commissioner concerned, who allowed the appeal and held that since the pond was meant for public purpose, no person could be allowed to encroach upon it and that it appeared that the Gram Panchayat was in collusion with the trespassers. This order of the ld. Commissioner was challenged before the Hon'ble High Court of Punjab and Haryana by way of an appeal which was disallowed. The matter thereafter reached the Hon'ble Supreme Court wherein the Supreme Court affirmed the decision of the Hon'ble High Court. While deciding upon the appeal, the Hon'ble Apex Court stated that lands meant for common use of villagers cannot be encroached by anyone and such illegal acts cannot be regularized.

25. Having thoroughly considered the facts of the case in Jagpal Singh (supra) and the law laid down therein, this Court finds that it does not buttress the case of the plaintiffs for reason that it does not deal with Section 91 CPC at all. Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 allows any inhabitant of a village to file an application for ejectment of any unauthorized occupant from any land in the shamalat deh of the village which vests or is deemed to vest with the Panchayat. There is no such corresponding provision in the Delhi Land Reforms Act 1954, nor has the plaintiff pointed out any other law which authorizes him to file a civil suit without obtaining the leave under Section 91(1) CPC. Hence, Jagpal Singh (supra) does not rescue the plaintiff from the rigours of Section 91 CPC.

26. Thus, the suit is liable to be dismissed for non-compliance with mandatory provision of Section 91(1) CPC and issues no. 1 and 2 are decided in favour of the defendants.

Issue no. 3:

Whether the suit is bad for non-joinder and mis joinder of necessary parties? OPD

27. With respect to this issue, no evidence has been led by either of the parties. The sole argument advanced by the defendant no. 2 with respect to this issue is that suit property consists of a well, which is a water body, and therefore the Delhi Jal Board is a necessary party. No further argument was advanced either orally or in writing on this aspect.

28. A necessary party is a person who ought to have been joined as a party and in whose absence no effective decree can be passed. In the present suit, the entire suit property vests with the defendant no. 4 Gaon Sabha and there is nothing on record to show that the well situated therein vests with the Delhi Jal Board. Further, the grievance of the plaintiffs is against the four defendants only and not against the Delhi Jal Board, which is why no relief has been sought against the latter. Hence, on the basis of the material before this court, it cannot be said that the Delhi Jal Board is a necessary party and that the suit is bad for its non-joinder. Issue no. 3 is accordingly decided against the defendants.

Issue nos. 4 and 5:

Whether the plaintiff is entitled for the decree of permanent injunction as prayed for against defendant No. 1 to 4?OPP Whether the plaintiff is entitled for decree of mandatory injunction as prayed for?OPP

29. Since the plaintiffs have not instituted the suit properly after obtaining permission under Section 91(1) CPC, the reliefs sought by the plaintiffs cannot be awarded to them. In light of the findings on issues no. 1 and 2, issues no. 4 and 5 are liable to be decided in the negative.

30. Additionally, the first part of the decree of permanent injunction sought by the plaintiffs against defendant No. 1,2, and 3 is for restraining them from "encroaching upon the land of the well towards southern side by illegally erecting way thereby putting hindrance in the common use of the CS No. well and also from the land of well specifically shown red in the site plan attached". However, the plaint makes no mention of any alleged activity taking specifically from the southern side and only comprises of general allegations regarding actual as well as attempted encroachment. In these circumstances, the specific injunction as prayed for by the plaintiffs cannot be awarded on account of absence of relevant material information.

31. The decree of mandatory injunction sought by the plaintiffs against the defendant No. 4 is partly for directing the latter "to protect the common land of the well and to remove the door and the wall in the eastern side of the land of the well, which is installed/raised illegally, unauthorized with arbitrary manner by the defendants No. 1,2, and 3". Once again, the plaint is silent on the construction of any wall specifically on the eastern side, because of which the decree sought cannot be awarded.

32. Lastly, in the absence of any private interest, the injunctions as sought by the plaintiff cannot be awarded by virtue of Section 41(j) of the Specific Relief Act, 1963 which states that an injunction cannot be granted when the plaintiff has no personal interest in the matter.

33. Issues nos. 4 and 5 are accordingly decided against the plaintiffs.

Relief

34. From the above analysis and determination of the issues, this Court holds that the plaintiff has failed establish their case on the basis of preponderance of probabilities. Accordingly, the suit of the plaintiff stands dismissed. No orders as to cost. Let the decree sheet be prepared. File be consigned to record room.

Announced in Open Court today i.e. 21.10.2021