Delhi District Court
Smt. Nirmala Devi vs Municipal Corporation Of Delhi on 17 January, 2014
IN THE COURT OF MS RASHMI GUPTA CIVIL JUDGE 19, CENTRAL
DISTT. DELHI
Civil Suit No. 375/13/07
Unique ID No. 02401C0507572007
Smt. Nirmala Devi
W/o Sh K.S. Dahiya,
WZ-231 C, Gali no. 7,
Sadh Nagar, Palam Colony,
New Delhi.
.........Plaintiff
vs
Municipal Corporation of Delhi,
Through its Commissioner,
Town Hall,
Delhi.
..... Defendant
Date of Institution of suit : 17.5.2007
Date on which reserved for judgment : 15.01.2014
Date of Judgment : 17.01.2014
SUIT FOR PERMANENT INJUNCTION AND DAMAGES
JUDGMENT
1. Vide this judgment I shall decide the suit for permanent injunction and damages filed by the plaintiff.
Smt Nirmala Devi vs MCD Suit no. 375/13/07 Page 1 of 132. The brief facts, as disclosed in the plaint, are as follows:-
3. The plaintiff is the owner of plot No. RZ-C-22/15A, measuring 80 Sq. Yards, carved out of Khasra No. 68/5/1, situated in the revenue estate of village Palam, abadi known as Sadh Nagar, Palam Colony, near Ram Chander Sanatan Dharam School, New Delhi, shown in red colour in the site paln annexed with the plaint. The plot of plaintiff is bound on west by road, having width of 20 feet, on the North and South, by the plot of other occupants and on East by a plot and Gali No. 8. The plot was having walls constructed on the East and West sides of the plot as well as iron gates. The plot of the plaintiff is the only plot which is vacant in the line of houses located in that street.
4. The plaintiff purchased the plot pursuant to registered documents like General Power of Attorney, Will etc. from one Sh. Anand Kumar Rajotia, resident of D-31A, Mangla Puri, Village Palam, New Delhi. The plaintiff has been in continuous possession of the plot since the date of its purchase. The plaintiff has also described the chain of owners through which the plot came to her. The neighbour of the plaintiff on the North side is one Smt. Suman Lata, who is the owner of plot bearing No. RZ-C-22/16, Gali No. 9, Sadh Nagar, Palam Colony, New Delhi. No doors or windows of Smt. Suman Lata are opening towards the plot of the plaintiff. Similarly, the neighbour on the South, ie, the owner of RZ-C-22/15, Gali No. 9, Sadh Nagar, Palam Colony, New Delhi has not opened any door or window towards the plot of the plaintiff.
5. The officials of defendant and other persons came to the property of the plaintiff on 25.5.2004 and demolished the boundary walls Smt Nirmala Devi vs MCD Suit no. 375/13/07 Page 2 of 13 and gates affixed on the boundary wall on the east and west side of the plot of the plaintiff. The debris were also removed from the site by the officials of the defendant. The plaintiff got served a legal notice dt. 31.5.2004 through her counsel to the defendant in the present case and other persons regarding the illegal demolition of the boundary wall constructed on the suit property and sought damages amounting to Rs. 1,30,000/- in this respect. The said notice was served upon the defendant through registered cover and under postal certificate on the notices.
6. The present suit has been filed to prevent the defendant from illegally extending Gali no. 8 and thereby covering the plot of the plaintiff in the said gali without any work order or any sanctioned plan or any site plan to show that the plot of the plaintiff is a part of gali no. 8. The officials of the defendant visited the property on 13.1.2007 and threatened the plaintiff that they were going to construct the road over the plot owned by the plaintiff and thereby threatened to illegally dispossess the plaintiff from the suit property without due process of law. In the absence of any work order, officials of the defendant went away without constructing any road. Thereafter, on 14.5.2007, some officials of the defendant again came to the suit property and started demarcating the portion where the road was to be constructed over the property of the plaintiff. The plaintiff has no other equally efficacious remedy other than the suit for permanent injunction and damages. Thus the plaintiff has prayed for a decree of permanent injunction restraining the defendant, its agents etc. from constructing illegal road over the plot owned by the plaintiff and for recovery of Rs. 1,30,000/- towards damages suffered by the plaintiff.
Smt Nirmala Devi vs MCD Suit no. 375/13/07 Page 3 of 137. The defendant has contested the present suit by filing the written statement wherein it has taken the preliminary objections such as the present suit is barred by the provisions of Section 477/478 of DMC Act 1957, it being barred under the provisions of Order 7 Rule 11 CPC etc. It has been averred by the defendant that the suit property was inspected by the officials on 7.8.2007 and during the course of inspection, it was noticed that the colony where the suit property is situated has been developed on agricultural /private land. It has been further stated by the defendant in its WS that as per the lay out plan of the colony/area known as Sadh Nagar, Part I, Palam, New Delhi, the suit property is an open land but it cannot be ascertained as to whether the suit property is a part of gali or not since the colony has been developed on the agriculture/private land by the colonizer and it has not been developed by the Govt. agencies.
8. In reply to para no. 6 of the plaint, stating about the demolition of the boundary wall and the gates affixed on the boundary wall on the suit property/property of the plaintiff. It has been stated by the defendant in para 6 of its WS in reply on merits that the alleged facts are matter of record and need no reply. The defendant has denied service of any legal notice upon it. The defendant has further denied that its officials neither have any work order nor have any lay out plan as alleged.
9. Replication has been filed on behalf of the plaintiff wherein the contents of the plaint have been reiterated and the assertions of the defendant to the contrary have been controverted.
10. On the basis of the pleadings of the parties, following issues have been framed vide order dt. 24.3.2012 :-
Smt Nirmala Devi vs MCD Suit no. 375/13/07 Page 4 of 13i Whether the suit of the plaintiff is barred under the provisions of Sec.
477/478 of the DMC Act? OPD ii Whether the plaintiff is entitled to decree of permanent injunction as prayed in the suit? OPP iii Whether the plaintiff is entitled to damages to the tune of Rs. 1,30,000/-
as prayed? OPP.
iv Relief.
11. Thereafter, the matter was listed for plaintiff evidence. The plaintiff in support of her case examined herself as PW1. She has deposed by way of an affidavit in lieu of examination in chief which is ExPW1/A. In her examination in chief, the plaintiff has reiterated the facts stated in her plaint. She has relied upon the documents which are ExPW1/1 to ExPW1/9. It has been stated by the PW1/plaintiff in her examination in chief that originals of ExPW1/2 to ExPW1/6 have been produced from the court of Ms. Ruchi Aggarwal, Ld. Civil Judge, Tis Hazari Courts, Delhi by the Ahlmad of that court from the case file bearing No. 215/07, titled as Nirmla Devi vs Suman Lata and anr. decided on 12.7.2010. ExPW1/1 is site plan, ExPW1/2 is General Power of Attorney, ExPW1/3 is Will, ExPW1/4 is affidavit, ExPW1/5 is receipt of the sale price, ExPW1/6 is Agreement to sell, ExPW1/7 legal notice sent to five persons including defendant in the case dated 31.5.2004, ExPW1/8 (colly) are postal receipts, ExPW1/9 is UPC receipt .
12. The plaintiff has also filed photocopy of the ownership Smt Nirmala Devi vs MCD Suit no. 375/13/07 Page 5 of 13 documents like general power of attorney, agreement to sell, affidavit, receipt, in respect of the plot owned by the plaintiff, executed by Smt. Prem Kapoor in favour of Sh. Anand Kumar Rajotia (seller of the plot/suit property to the plaintiff) and those executed by Smt. Bimla Batra in favour of Smt. Prem Kapoor.
13. Plaintiff has also examined Sh Kuldeep Singh Dahiya, her husband as PW2 and he has deposed by way of an affidavit in lieu of examination in chief which is ExPW2/A. He has also relied upon the documents exhibited by PW1 as ExPW1/1 to ExPW1/6.
14. The plaintiff has also examined Sh Sunil Kumar Gupta, her neighbour as PW3 and he has deposed by way of an affidavit in lieu of examination in chief which is ExPW3/1.
15. Plaintiff has also examined Sh. Anand Kumar Rajotia, who had sold the suit property to the plaintiff, as PW4. The aforesaid witnesses had been cross examined by the Ld counsel for the defendant. Thereafter plaintiff evidence was closed.
16. The defendant, in support of his case has neither examined any witness nor has produced any document.
17. I have heard the Ld counsels for the parties and perused the record.
18. My issue wise findings are as under :
ISSUE NO. 1.
Q Whether the suit of the plaintiff is barred under the provisions of Section 477/478 of the DMC Act?Smt Nirmala Devi vs MCD Suit no. 375/13/07 Page 6 of 13
19. The onus to prove this issue was on the defendant. The defendant except taking this objection in para 1 of preliminary objections of its WS has not mentioned anything about this objection in the pleadings or in evidence.
20. A legal notice was given by the plaintiff in the present case to the defendant u/s 478 DMC Act regarding claim for damages for Rs.
1,30,000/- in respect illegal demolition of boundary wall and gate installed at property bearing No. RZ-C-22/15A, gali no. 9, Sadh Nagar, Palam Colony, New Delhi, that is, the suit property. This legal notice dt. 31.5.2004 is ExPW1/7.
21. Section 477 of the DMC Act protects the corporation etc. from any action for anything which is done in good faith or intended to be done, under this Act, or any rule, regulation or bye-law made thereunder. In my view this provision is not applicable to the case in hand.
22. Section 478 of DMC Act provides for the mandatory requirement of giving at least two month's notice before the institution of the suit against the corporation. The present suit is for damages and permanent injunction. It does not fall under Sub Section 2 of Section 478 of DMC Act. The plaintiff had already given notice to the defendant u/s 478 of DMC Act regarding its claim for damages in the year 2004, however, the present suit has been instituted in the year 17.05.2007. Though no notice has been given by the plaintiff regarding permanent injunction u/s 478 of the DMC Act to the defendant, but the suit of the plaintiff is saved by Sub Section 3 to Section 478 of the DMC Act which provides that there is no requirement of giving notice under this provision Smt Nirmala Devi vs MCD Suit no. 375/13/07 Page 7 of 13 when the relief claimed is an injunction the object of which would be defeated by giving of the notice or postponement of the institution of the suit.
23. It is pertinent to mention here the observation of Hon'ble Delhi High Court in the case of Samiyar Khan vs. Usman Khan, 55 (1994) DLT 60, wherein it was observed that if the relief sought in the suit is one for injunction, no notice is required to be served as contemplated under Section 478 of the DMC Act.
24. In view of the above I am of the considered opinion that the suit of the plaintiff is not barred under the provisions of Section 477/478 of the DMC Act. Thus this issue is decided in favour of the plaintiff and against the defendant.
ISSUE NO. 2Q Whether the plaintiff is entitled to decree of permanent injunction as prayed in the suit?
25. The onus to prove this issue was upon the plaintiff. It is the case of the plaintiff that the plaintiff is the owner of the vacant plot of land, that is the suit property, purchased pursuant to registered documents like general power of attorney, Will, Affidavit etc. It is enclosed in north and south by the houses of neighbours and in east and west by boundary walls having gates affixed in it. On the west side of the plot, there is a road and on the east side of the plot there is a gali. MCD demolished the walls and gates on the plot of the plaintiff on 25.5.2004 without any work order or sanctioned plan or site plan under the garb of encroachment on the public Smt Nirmala Devi vs MCD Suit no. 375/13/07 Page 8 of 13 land. The defendant department wanted to extend the gali on the east side of the plot over the plot of the plaintiff. The defendant department extended the threat of construction of road over the plot of the plaintiff on 13.1.2007. On 14.5.2007, the officials of the defendant also started demarcating the portion where the road was to be constructed. Thus, the plaintiff filed the present suit for permanent injunction and recovery of damages to the tune of Rs. 1,30,000 against the defendant. Thus, the present suit was filed by the plaintiff to prevent the defendant from illegally extending gali on the east side of the plot and thus encroaching upon her plot.
26. The plaintiff is in the settled possession of the plot since 1997. The said plot has been purchased by the plaintiff from one Sh Anand Kumar Rajotia for a consideration of Rs. 2,05,000. The plaintiff has duly proved this fact by producing and proving on record registered documents like general power of attorney (ExPW1/2), Will (ExPW1/3), affidavit (ExPW1/4), receipt (ExPW1/5) executed by Sh Anand Kumar Rajotia on 23.05.1997 in her favour. The plaintiff has also examined Sh. Anand Kumar Rajotia as PW4 who has stated on oath in his examination in chief that the aforesaid documents bear his signatures. The plaintiff (PW1) has also stated in her examination in chief the chain of persons through whom the suit property, which is a vacant plot of land, came to her. PW1 has stated in her examination in chief that the original owner of the plot was one Sh. Radha Krishan, son of late Sh. Uma Shanker, resident of village Palam, Delhi, who had sold the plot measuring 5 biswas, that is, 250 square yards, out of khasra No. 68/5/1 situated in the revenue estate Smt Nirmala Devi vs MCD Suit no. 375/13/07 Page 9 of 13 of village Palam, New Delhi. Sh. Radha Krishan had inherited the said plot from his forefathers prior to the commencement of the Delhi Land Reforms Act. Sh. Radha Krishan had sold the plot to Sh. Hukum Chand Sharma, who had sold the plot to Smt. Bimla Batra, Smt. Bimla Batra sold 80 square yards out of the plot sold by Sh. Radha Krishan to Smt. Prem Kapoor, wife of Sh. G.S. Kapoor, who had sold the plot to Sh. Anand Kumar Rajotia. Besides this she has also placed on record the documents like GPA, will etc. showing the transfer of the suit property from Smt. Bimla Batra to Smt Prem Kapoor and from Smt Prem Kapoor to Sh. Anand Kumar Rajotia. Thus, the plaintiff has been able to prove successfully that she had purchased the suit property from Sh. Anand Kumar Rajotia and is in lawful possession of the same since 1997.
27. The plaintiff has alleged that the defendant demolished the walls and the gates on her property on 25.5.2004 and also threatened to construct the road over her plot by extending the gali on the east side of the plot of the plaintiff on 13.01.2007 and on 14.05.2007 the defendant started demarcating the portion on the plot where the road was to be constructed. Plaintiff has also substantiated these allegations in her examination in chief and cross examination.
28. The defendant in its WS has admitted that it had demolished the property of the plaintiff on 25.05.2004 by stating in reply to para 6 of the plaint, alleging about demolition, that it is a matter of record and needs no reply. The defendant has not placed on record anything to show that the demolition was done after any verification or inspection forming basis to the conclusion that the suit property was on encroached land.
Smt Nirmala Devi vs MCD Suit no. 375/13/07 Page 10 of 1329. The plaintiff has also alleged that the defendant had carried out the demolition without any work order or any sanctioned plan or any site plan to show that the plot of the plaintiff is part of gali no. 8. The defendant has denied this allegation in its WS evasively and baldly. It has not placed on record any work order etc. to justify the demolition on the plot of the plaintiff, when the defendant admits the fact of demolition in its WS.
30. On the other hand it has been stated by the defendant in its WS that inspection of the site was done on 7.8.2007 and it was found that the colony has been developed on private /agricultural land. It has further stated in its WS that the suit property is an open land and it cannot be ascertained as to whether the suit property is a part of gali or not since the colony is developed on private/agricultural land by colonizer and not developed by government agencies.
31. In view of the above, I am of the considered opinion that the demolition was carried out by the defendant on the plot of the plaintiff on 25.5.2004 without any justification. The defendant has not placed on record anything to show that the demolition was done after any verification or inspection. The defendant also threatened the plaintiff about construction of road on the plot of the plaintiff on 13.01.2007 and 14.05.2007. The plaintiff has placed on record and proved the documents through which she had purchased the plot/suit property from Sh Anand Kumar Rajotia whereas the defendant in its WS has just stated that it is not ascertainable as to whether the plot of the plaintiff, i.e, the suit property is part of gali or not.
32. It has been held by the Hon'ble Supreme Court in the case of Smt Nirmala Devi vs MCD Suit no. 375/13/07 Page 11 of 13 Prataprai N. Kothari v. John Braganza, AIR 1999 SC 1666 that a person who has been in long continuous possession of some property can protect the same by seeking an injunction against any person other than the true owner.
33. In the present case the plaintiff is not only in the long continuous possession of the plot, that is the suit property, but also has in its possession the registered documents through which she had purchased the said plot. Whereas on the other hand defendant is not having anything with it to show that the plot has been encroached and has just stated that it cannot be ascertained as to whether the suit property is a part of gali or not.
34. As the plaintiff has been able to prove the essential requisites for grant of permanent injunction in her favour as required by Section 38 of Specific Relief Act. So, the defendants, its agents, employees etc. are permanently restrained by way of permanent injunction from constructing road over the plot of the plaintiff. Thus, this issue is decided in favour of the plaintiff and against the defendant.
35. However, the finding on this issue shall not be construed in any way a finding or declaration or opinion on the title/ownership of plaintiff in context of the plot in question, that is, the suit property.
ISSUE NO. 3Q Whether the plaintiff is entitled to damages to the tune of Rs. 1,30,000/- as prayed ?
36. The onus to prove this issue was on the plaintiff. However, Smt Nirmala Devi vs MCD Suit no. 375/13/07 Page 12 of 13 the plaintiff has utterly failed in proving this issue. She has not stated anything on the said issue in her pleadings nor has led any evidence to show the damage caused to her by the act of the defendant. Thus, this issue is decided against the plaintiff and in favour of the defendant.
37. Thus the suit of the plaintiff has been partly decreed. It has been decreed in respect of the relief of permanent injunction and has been dismissed in respect of relief of damages.
Relief The suit of the plaintiff has been decreed in respect of the relief of permanent injunction and the defendant, its agents etc. are restrained from constructing road over the plot of the plaintiff bearing No. RZ-C-22/15A, measuring 80 sq. yards out of total land measuring 231 sq. yards, carved out of khasra No. 68/5/1, situated in the revenue estate of village Palam, abadi known as Sadh Nagar, Palam Colony near Ram Chander Sanatan Dharam School, New Delhi, marked in red in colour in the site plan annexed alongwith the plaint.
The claim of plaintiff for damages has been dismissed. No order as to cost. Parties to bear their own cost Decree sheet be prepared accordingly.
File be consigned to record room after due compliance.
Announced in Open Court
on 17.01.2014 RASHMI GUPTA
CIVIL JUDGE-07(CENTRAL)
DELHI
Smt Nirmala Devi vs MCD Suit no. 375/13/07 Page 13 of 13