Delhi District Court
Pushpa Auto Complex Welfare ... vs Dda & Anr on 25 February, 2012
Suit No. 356/2011
IN THE COURT OF MS. SHEFALI SHARMA
CIVIL JUDGE (WEST): TIS HAZARI COURTS: DELHI
Suit No. 356/2011
Pushpa Auto Complex Welfare Association
........Plaintiff
Versus
DDA & Anr.
....Defendants
Order:
Vide this order, I shall dispose off an application under Order
XXXIX Rule 1 and 2 CPC filed on behalf of the plaintiff against defendants.
The brief facts for the effectual disposal of the instant application are as
follows:
1. That this is a suit for permanent and mandatory injunction which has
been filed by the members of the plaintiff's association against the
defendant no. 1/DDA and against the defendant no. 2 Pushpa Builder
Private Ltd. It is the case of the members of the plaintiff's association
that they have been in occupation and possession of the premises
bearing commercial plot no. 160, admeasuring 464.5 square meters
situated at Rohtak Road, Transport Center, General store, Punjabi Bagh,
New Delhi110026 having occupied the same by virtue of an agreement
executed by the defendant no. 2 in favour of the members of the plaintiff
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Suit No. 356/2011
association. That defendant no. 2 / Pushpa Builders Pvt. Ltd. have been
alloted a plot bearing no. 160, Pushpa Auto ComplexI, admeasuring
464.5 sq. meter by virtue of a Perpetual Lease Deed in a public auction
held by DDA on 20.01.1987 whereby the bid was executed by DDA vide
letter dated 23.01.1987. Defendant no. 2 was thereafter allowed to enter
into the possession of the said property after making the entire payment
to DDA. Defendant no. 2 was desirous of constructing commercial Auto
work shop by the name of Pushpa Auto Complex and thus got the
building plan sanctioned by the DDA and raised the construction. By
virtue of the license agreement between defendant no. 2 and plaintiffs,
the individual spaces were alloted to each occupiers.
That the defendant no. 2 came out with an offer of selling
spaces and shops, showrooms and agencies etc on 24.01.1987 at site
camp on first come first serve basis at the rate of Rs. 15/ per square
foot at General Stores, Punjabi Bagh, Main Rohtak Road, New Delhi.
The members of the M/s Pushpa Builders Ltd./ defendant no. 2 got the
shops, spaces, offices booked by paying required amount by cash or by
cheque. That after receiving each payment the defendant no. 2 used to
issue receipts to the plaintiff members. That the plaintiff members came
in possession of the shop from 1988 onwards and the plaintiffs started
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Suit No. 356/2011
earning their livelihood after coming in possession of the property in
question. That after receiving full payment defendant no. 2 entered into
an agreement with the plaintiff who bonafidely purchased the said
spaces. That defendant no. 2 promised that subsequently he would
execute the sale deed in favour of the plaintiffs however, he failed to do
so. On the contrary, the plaintiffs were shocked to see a notice of
proclamation of the sale issued by Debt Recovery Tribunal, U.P. wherein
the plaintiffs filed their objections which are still pending. It is only then
that the plaintiffs came to know that defendant no. 2 had cheated them
and then they also filed a complaint against defendant no. 2 which is
pending before the court of Ld. M.M. Sh. Lovleen, West Distt. The
plaintiff also filed complaints against he defendant no. 2 before the
Economic Offences Wing.
That it was to utter shock of the plaintiff that on 17.10.2011,
two police men came to the office of the plaintiff and said that all the
occupants of Pushpa auto complex should remove their goods and
th
articles from the shops, offices by 19 October, 2011 because these
shops will be demolished and some of them will be sealed by defendant
no. 1 while taking police aid on 20.10.2011.
Pushpa Auto Complex vs. DDA & Anr. 3/14
Suit No. 356/2011
That the plaintiff then approached the local DDA office at
Pitampura, New Delhi, there they came to know that an office order
dated 19.07.2011 has been received by them from Vikas Sadan, INA,
New Delhi and they have been directed to seal the premises.
That the plaintiff then immediately moved to the defendant
no.1's office and submitted their request vide letter dated 17.10.2011
stating there in that the plaintiff did not receive any notice or letter from
the defendant no. 1 before hand for sealing and demolition etc. and no
reason whatsoever has been stated to them.
The aforesaid facts gave the cause of action to the plaintiff to
file the present suit and press the instant application under Order XXXIX
Rule 1 and 2 CPC seeking the relief that defendants no. 1 and 2 be
restrained from demolition and sealing the property no. 160, Pushpa
Auto Complex, New Rohtak Road, Transport Centre, New Delhi.
2. The plaintiff, in order to substantiate their contentions, have placed on
record the photocopy of brochure issued by the Pushpa Builders for
selling their property, copy of payment receipt, copy of sample
agreement, copy of letter dated 24.07.1991, copy of the complaint dated
10.03.2011, copy of notice of proclamation of sale of property issued by
the DRT, Lucknow, copy of objections filed before the DRT Lucknow,
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Suit No. 356/2011
cop of map of the site in dispute, copy of the complaint made to the
Economic Offences Wing, Copy of list of occupants, copy of request
letter dated 17.10.2011 along with its receipt, copy of DDA notice dated
19.07.2011 and the copy of registration certificate of plaintiff association.
3. In response to the present application, it is submitted on behalf of
defendant no. 1/ DDA that in the present case, sealingcumdemolition
order was issued way back on 31.12.1990 for various unauthorized
construction in the basement, Ground Floor, Mezzanine Floor of the
property in question and was sealed on 08.01.1991. Thereafter de
sealing order was issued on 31.08.1992 and the building was desealed
on 01.09.1992 for carrying out the rectification work and removing of
unauthorized construction. The property owner i.e. defendant no. 2
thereafter appealed to the Hon'ble High Court and the stay order was
granted in their favour against the Sealingcumdemolition order.
However, the Hon'ble High Court vide its order dated 29.11.1994
vacated the stay granted earlier. Accordingly, the implementation letter
dated 26.09.2003 was written to Deputy Director (LM), for taking
necessary action. The program for implementation was fixed on
12.11.2003 but it was again referred by the office of the DDA vide letter
dated 10.11.2003 for clarification as to whether any appeal against the
Pushpa Auto Complex vs. DDA & Anr. 5/14
Suit No. 356/2011
judgment dated 29.11.1994 has been received or not, in order to
safeguard the interest of the authority/ defendant no.1 against any
contempt proceedings. A similar letter dated 08.01.2004 was written to
Deputy Director (CL) and CLA (DDA), for clarification. Letter dated
03.11.2009 was again written to Deputy Director (LM) to implement the
sealingcumdemolition orders issued earlier and the same was again
written to Deputy Director (LM) on 19.07.2011.
4. In support of its contentions, defendant no. 1/ DDA has filed photocopy
of show cause notice dated 30.11.1990, photocopy of site inspection
report dated 30.11.1990, photocopy of the letter dated 11.10.2011 to
DCP, Rajouri Garden, photocopy of letter dated 19.07.2011, photocopy
of the letter dated 03.11.2009, photocopy of the order under Section 30
(1) dated 31.12.1990, photocopy of desealing order dated 31.08.1992,
photocopy of the order/ judgment dated 29.11.1994 and photocopy of
letter dated 22.06.2011.
5. Thereafter, an application under Order VIII Rule 1A CPC had been
moved on behalf of defendant/ DDA to file certain additional documents
which was allowed vide orders dated 17.02.2012. Thus defendant/ DDA
has filed additional documents viz. photocopy of the undertaking dated
22.01.1990, photocopy of the letter dated 22.01.1990, photocopy of
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Suit No. 356/2011
undertaking dated 12.06.1990, photocopy of occupancy certificate dated
19.06.1990, order under Section 31 (1) and 31 (A) on behalf of DDA,
letter dated 31.08.1992, letter dated 14.09.1992, letter dated 26.09.1992
and letter dated 20.10.1992.
6. It is pertinent to mention that despite service, none had appeared on
behalf of defendant no. 2 nor any written statement has been filed on his
behalf. Therefore, defendant no. 2 was proceeded against exparte vide
orders dated 09.02.2012.
7. I have heard Ms. M. K. Heena, Ld. Counsel for the plaintiff and Ms.
Beena Sharma along with Sh. Naresh Sharma, Ld. counsels for
defendant no. 1/ DDA and gone through the material available on record.
8. It is a settled law that a party is entitled to an order of injunction only if he
is able to satisfy the court that a strong prima facie case has been made
out in his favour, the balance of convenience also lies in his favour and
that refusal of injunction will cause an irreparable injury to him.
Prima facie case means that there is a likelihood of infraction
of a legal right of the plaintiff by the defendant. It means that the case of
the plaintiff raises a triable issue which needs investigation,
consideration and adjudication.
Pushpa Auto Complex vs. DDA & Anr. 7/14
Suit No. 356/2011
The plaintiff is also to establish that balance of convenience
lies in his favour. Balance of convenience connotes comparative
mischief likely to be caused to either party in case of grant or refusal of
relief of injunction.
The plaintiff is also to satisfy the court that noninterference by
the court would result in an irreparable injury and that there is no other
remedy available to him except one i.e. the grant of injunction in his
favour. Irreparable injury means an injury which is a material one and
one that cannot be adequately compensated by way of damages.
Further, it is a settled law that grant of temporary injunction is an
equitable relief wherein the plaintiff has to satisfy the court that he has
acted bonafidely.
9. The main point of controversy in the present case is that the
members of the plaintiff association claim themselves to be in settled
possession of the suit property bearing plot no. 160, Pushpa Auto
Complex, New Rohtak Road, Transport Centre, New Delhi having
occupied the same vide an agreement executed by defendant no. 2 in
their favour and by virtue of that they are running an auto shop and office
from the said premises since the year 1990.
Pushpa Auto Complex vs. DDA & Anr. 8/14
Suit No. 356/2011
Plaintiffs, in support of their contentions, have filed the Sample
Agreement which the defendant no. 2 entered with one of the member of
the plaintiff association and the receipts of payment.
On the other hand, defendant/ DDA have stated that
admittedly the plot no. 160 in question had been leased out to defendant
no. 2 however, he carried various unauthorized construction on the
basement, ground floor and mezzanine floor of the property in question
which was sealed on 08.01.1991. The property was thereafter de
sealed on 01.09.1992. Thereafter defendant no. 2 moved an appeal
before Hon'ble High Court and obtained a stay order however, the said
stay order was also vacated by the Hon'ble High Court vide orders dated
29.11.1994. Thus since there was no stay operating for demolition,
various letters had been written by the officials of DDA interse their
department to implement the sealingcumdemolition order dated
31.12.1990. In pursuance of that, the defendants seek to carry out the
sealingcumdemolition of the suit property and have thus argued that
the application of the plaintiff be dismissed.
The defendants/ DDA have placed on record various
documents which have been duly considered. There is an occupancy
certificate which was issued by the concerned official to defendant no. 2
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Suit No. 356/2011
Pushpa Builders Pvt. Ltd on 19.06.1990. On the perusal of the said
occupancy certificate especially on the bottom of the said occupancy
certificate, it is clear that there were certain conditions imposed
regarding the construction. It is categorically mentioned that the party,
defendant no. 2, shall not construct any intermediate floor. Or a ramp
beyond the public land portion against the DDA building byelaws. Yet
since unauthorized constructions were found as alleged by DDA, various
show cause notices were issued to Pushpa Builders Pvt. Ltd. (defendant
no. 2 herein) and eventually stay was vacated vide the order of Hon'ble
High Court dated 29.11.1994.
Thus prima facie, it is revealed that since the original lessee
i.e. defendant no. 2 had violated the terms and conditions of the lease,
therefore, the plaintiffs who claimed their right through original lessee i.e.
defendant no. 2 herein, do not have right to run the auto shop and office
in violation of the building plan and the terms of the original lease. Yet at
the same time it is not disputed by DDA that the said members of the
plaintiff association have been in settled possession of the suit property
and are running their business since 1990.
DDA has not afforded any justifiable explanation as to when
they were already in the knowledge that the stay had been vacated by
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Suit No. 356/2011
the Hon'ble High Court way back in the year 1994, why they did not take
immediate action of sealing and demolition of the unauthorized
constructions at the premises. It appears that they spent a lot of time in
interse departmental communication but no communication was sent to
the plaintiffs who were the actual occupiers. Owing to the lapse and
delay on the part of defendant department, they have on their own
permitted the running of the said shops for such a long period of more
than 18 years. On the other hand, the plaintiffs who are the bonafide
occupiers, have not been issued any show cause notice by the
defendant/ DDA. All the show cause notices which have been filed by
DDA have been issued against defendant no. 2, whereas the defendant
no. 1/ DDA were well aware that the members of the plaintiff association
are in occupation of the suit premises. It is also pertinent to mention that
plaintiffs were not parties in the matter before the Hon'ble High Court.
Vide the notice which had been allegedly affixed on the
premises on 19.07.2011, there are office orders to implement the
sealingcumdemolition order issued on 31.12.1992, the copy has been
sent only to Pushpa Builders Pvt. Ltd which is defendant no. 2 herein
and the plaintiffs were never afforded an opportunity of being heard.
Pushpa Auto Complex vs. DDA & Anr. 11/14
Suit No. 356/2011
It is a settled law that a person in the settled possession
cannot be dispossessed without due process of law. Despite the
knowledge that there are occupants in the suit property, no show cause
notice has been sent to the plaintiffs. Further DDA officials have
themselves delayed the matter for 18 years.
Through the various documents filed by the plaintiffs, they
have shown that they have been in settled possession in the premises
since the year 1990. Thus a prima facie case is made out in their favour.
Even otherwise, it has been held in the case of East India Hotels Ltd.
Vs. Syndicate Bank 1992 Supp (2) Supreme Court Cases 29, that
"it is to be noted that the case relates to the
tenant who is entitled to remain in possession
as tenant holding over after the expiry of his
lease but the ratio is significant that on expiry
of the lease or licence no one can take
possession unilaterally except in due course of
law through the respondent had no legal title."
Further, no irreparable loss shall be caused to the defendant/ DDA who as such has taken a time of 18 years to implement office orders but a major irreparable loss shall be caused to the plaintiff who are running their business from the suit property and earning their livelihood. Even the balance convenience thus lies in favour of the Pushpa Auto Complex vs. DDA & Anr. 12/14 Suit No. 356/2011 plaintiffs.
10.At this stage, it is pertinent to mention the case of Dhaneswar Vs. Ghanshyam, A 1940 A 185 and Bichharam Vs.Baldeo, A 1940 A 241, wherein it was held that in many cases it has been held that Order 39 is not exhaustive and apart from it the court has ample power to issue injunction ex debito justitiae for protection and security of the subjectmatter of suit or to prevent multiplicity of proceedings.
The law has been reiterated by the Hon'ble Supreme Court in the case of Manohar v. Seth Hiralal AIR 1962 SC 527 wherein it was held that the court has inherent power to issue temporary injunctions in circumstances not covered by the provisions of Order 39 CPC, if it is of the opinion that the interests of justice require the issue of such interim injunction.
11.In view of the aforesaid discussions, defendant/ DDA are restrained from demolishing or sealing the property bearing no. 160, admeasuring 464.5 square meters situated at Rohtak Road, Transport Center, General store, Punjabi Bagh, New Delhi110026 till the final disposal of the present suit in any manner whatsoever and at the same time, Pushpa Auto Complex vs. DDA & Anr. 13/14 Suit No. 356/2011 plaintiffs are restrained from creating any third party interest in the suit property till the final disposal of the suit property.
12.The application under Order XXXIX Rule 1 and 2 CPC is disposed off. Nothing stated herein shall tantamount to an expression of opinion on the merits of the case.
Pronounced in the open court today on 25.02.2012 (SHEFALI SHARMA) CIVIL JUDGE (WEST) THC, DELHI/ 25.02.2012 Pushpa Auto Complex vs. DDA & Anr. 14/14