Delhi District Court
Smt. Tej Kaur vs Delhi Development Authority on 23 September, 2013
Suit No. 253/2006
IN THE COURT OF MS. RICHA GUSAIN SOLANKI
CIVIL JUDGE(WEST):TIS HAZARI COURTS: DELHI
Suit No. 253/2006
1. Smt. Tej Kaur
Widow of Late Sh. Gyani Ram Singh
2. Sh. Rajinder Singh
S/o Late Sh. Gyani Ram Singh
3. Sh. Surjit Singh
S/o Late Sh. Gyani Ram Singh
through Special attorney
Smt. Devinder Kaur W/o Sh. Surjit Singh
All residents of 158, Village Mochi Bagh,
Nanakpura, New Delhi.
..............Plaintiffs
Versus
1. Delhi Development Authority,
Through its Vice Chairman,
Vikas Sadan, I.N.A.,
New Delhi110023.
...........Defendant
Date of institution : 08.11.2001
Arguments heard on : 21.08.2013
Date of decision : 23.09.2013
JUDGMENT: This is a suit for declaration and permanent injunction. The brief Tej kaur & Ors. Vs. DDA 1/16 Suit No. 253/2006 facts as averred in the plaint are as follows:
1. It is the case of the plaintiff that late Sh. Gyani Ram Singh was the owner of property bearing no. 158, Village Mochi Bagh, New Delhi which falls in abadi lal dora of Village Arakpur Bagh Mochi, New Delhi (hereinafter referred to as 'suit property') and he was in possession of this land since before 1950 and the suit property was being used for residential purposes. After his death the plaintiffs have became the owners of the suit property being legal heirs of Late Sh. Gyani Ram Singh. In the year 1966 a show cause notice in Form E under Section 7(2) of Public Premises (Eviction of unauthorized Occupants), Act 1958 was issued against Sh. Gyani Ram Singh for land measuring 200 sq. yds being used for residential purposes for the period 01.05.1952 to 31.03.1962 demanding Rs 2,640/ for suit property. In response to the said show cause notice Sh. Gyani Ram Singh filed his written objections stating therein that he was not liable to make the payment of damages to the DDA since the suit property did not belong to the DDA as it was situated in abadi lal dora of Village Arakpur Bagh Mochi. In this connection the statement of Halqua Patwari of Village Arakpur Bagh Mochi Estate was recorded who stated that the suit property under the occupation of Gyani Ram Singh was not under the control and management of DDA and the same fell in abadi lal dora of Village Tej kaur & Ors. Vs. DDA 2/16 Suit No. 253/2006 Arakpur Bagh Mochi, Delhi. Consequently the show cause notice regarding demand of damages was cancelled and withdrawn by the Ld. Estate Officer vide orders dated 23.03.1994. Again a show cause notice vide case No. D/ABM(15)79 for eviction of the suit property and demand of damages was issued by the DDA which was later withdrawn by then Estate officer. Again in the year 1985 a show cause notice under Public Premises Act for eviction was issued to the Manager Punjab National Bank, Nanakpura, New Delhi, Sh. Gyani Ram Singh, Smt. Tej Kaur/ plaintiff no. 1 and Sh. Surjit Singh/plaintiff no. 3. Objections were filed by the said persons and Halqua Patwari of Village Arakpur Bagh Mochi was examined by the DDA as witness who clarified that the land bearing no. 158 of Arakpur Mochi. Consequently the show cause notice dated 18.02.1986 issued to Manager PNB, Nanakpura who was a tenant under the plaintiffs and against the plaintiffs was withdrawn by the Ld. Estate officer and it was held that the premises under reference belongs to Smt. Tej kaur and Sh. Surjit Singh and Sh. Rajinder Singh vide orders dated 16.02.1988. Despite the cancellation of earlier show cause notices, defendant is still claiming damages from the plaintiffs and is unnecessarily causing harassment to the plaintiffs. A show cause notice dated 25.07.1995 in case No. D/ABM/95/1 was issued by the defendant demanding damages from the plaintiffs @ Rs. 2,200/ per month w.e.f. Tej kaur & Ors. Vs. DDA 3/16 Suit No. 253/2006 01.04.1983 to 31.03.1992 i.e Rs. 10/ per sq. yds and Rs. 2,750/ per month w.e.f 01.04.1992 to 31.03.1995 @ 1.50 paisa per sq. yds. for total area of 220 sq. yds. Thereafter a notice under Section 53 B of Delhi Development Act dated 22.08.2001 was issued by the plaintiffs but no reply was given.
The officials of DDA stated to be frequently visiting the suit property and pressurizing the plaintiffs to pay damages. On 01.11.2001 the officials of DDA visited the suit property and extended threats to the plaintiffs that in case they would not pay damages the suit property would be attached and sold for satisfaction of the arrears of damages. The plaintiffs requested some time to make the payment and the matter was averted. On 06.11.2001, the officials of the defendant again visited the suit property and started demanding arrears of damages and the matter was again averted on the request of plaintiffs by seeking more time for making payment.
2. Therefore, plaintiff filed the present suit praying that a decree of permanent injunction be passed in favour of the plaintiffs and against the defendant/DDA thereby restraining the defendant its officials, agents and other persons from collecting damages regarding suit property and further a decree of declaration be passed in favour of the plaintiff and against the defendant thereby declaring the suit property fall in lal dora Tej kaur & Ors. Vs. DDA 4/16 Suit No. 253/2006 Arakpur Bagh Mochi Estate and the same does not fall under the management and control of the defendant/DDA.
3. In the written statement filed by defendant/DDA, it is stated that statutory notice under Section 53 B Delhi Development Act, 1957 is mandatory but the same has not been served upon DDA. It is stated that suit property forms part of khasra no. 224 min. and 182 min. of Village Arakpur Bagh Mochi. It is a government land and transferred to DDA by virtue of nazul agreement, 1937. It is stated that Sh. Gyani Ram Singh was in unauthorised occupation of land measuring 40 sq. yds and was using the same for its commercial use. He was assessed for damages for the period from 18.01.1967 to 31.03.1985. Necessary notices regarding assessment of damages were issued on 25.08.1980, 07.07.1982 and 27.01.1986. The demanded amount on account of damages was also received upto the period 31.03.1981. It is further stated that all the notices for damages were issued in respect of land falling in khasra no. 224 min. The assessment of damages was for an area of 100 sq. yds (50 residential and 50 commercial) of premises no. 158 in the name of Sh. Surjit Singh S/o Sh. Ram Singh. Different notices dated 10.03.1966, 18.0.1968 and 21.02.1972 were issued regarding assessment of damages for the period from 01.01.1961 to 31.03.1971. It is further stated that the suit property was inspected by Tej kaur & Ors. Vs. DDA 5/16 Suit No. 253/2006 the Damages Collector on 22.01.1986 and found that the same ad measuring about 200 sq. yds is being used for commercial purposes and a branch of Punjab National Bank was found running there. Accordingly, a notice dated 18.02.1986 was issued to the Punjab National bank under the provisions of Section 4(1) of PP Act, 1971 for initiating eviction proceedings against bank. In response of that the objections were received from Bank and finally this notice was withdrawn vie orders dated 16.02.1988 of the then Estate OfficerIII Sh. Gurdev Singh (now retired). It is stated that the then Estate Officer holding the premises no. 158 as khasra no. 158 ordered the withdrawal of eviction proceedings initiated against the bank. In fact no eviction proceedings were pending in respect of khasra no. 158 Arakpur Bagh Mochi. The disputed land was falling in khasra no. 224 min. and 182 min. and not in khasra no.
158. It is further stated that an assessment of damages for the area measuring 220 sq. yds (commercial) was also made in the name of Smt. Tej Kaur, Sh. Surjit Singh and Sh. Rajinder Singh in respect of suit property. A notice dated 25.07.1995 was issued wherein the assessment of damages was made for the period from 01.04.1983 to 31.03.1995. In this notice the khasra no. of disputed land was clearly mentioned as khasra no. 224 min., 182 min and 225 min. In these proceedings Smt. Tej kaur appeared before the Estate Officer on Tej kaur & Ors. Vs. DDA 6/16 Suit No. 253/2006 02.06.1998 and stated on oath that she was an unauthorised occupant on DDA land and that she has no objection in making the payment to DDA provided the rates to be charged are reasonable.
4. It is stated that the position in respect of the land under disputed has been explained in detail. It is further stated that no record pertaining to the withdrawal of notice vide order dated 23.03.1966 of Estate Officer as stated by the plaintiff is available with the defendant. It is stated that plaintiff had manipulated the things and succeeded to get made the alleged statement of Halqa Patwari by confusing the position about premises no. 158 as khasra no. 158.
5. Vide order dated 08.05.2002 following issues had been framed by my Ld. Predecessor :
1. Whether suit is bad for want of notice under Section 53B Delhi Development Act? OPD
2. Whether plaintiff is entitled for the relief of declaration, as prayed for?
OPP
3. Whether the plaintiff is entitled for the relief of permanent injunction, as claimed for? OPP
4. Relief.
6. In his support plaintiff examined five witnesses. PW 1, plaintiff no. 1 herself, entered the witness box on 28.02.2003 and tendered her Tej kaur & Ors. Vs. DDA 7/16 Suit No. 253/2006 affidavit in evidence which states the same facts as were stated in the plaint. (It appears that due to recent amendment in the Civil Procedure Code in the year 2002, the affidavit was not formally tendered in evidence but only filed. Since the witness has been cross examined on this very affidavit, the error is merely technical.) Ex PW 1/1 is the site plan. Mark A is the copy of order dated 23.03.1966 under the Public Premises (Eviction of Unauthorized Occupation) Act. Mark B is the copy of withdrawal order of the notice dated 18.02.1986. Ex PW1/2 is the copy of notice under Section 53 B, Delhi Development Act, and Ex PW1/3 and Ex PW 1/4 are its postal receipt and AD card.
In her cross examination, she stated that she served notice to DDA nearly two years back. She admitted that the suit property fell in khasra no. 224 min. and 182 min. Village Arakpur Bagh Mochi. She could not say if the suit property was transferred to DDA by nazul agreement. She admitted that the suit property was being used for commercial purposes. She admitted that she had made a statement in the DDA office that the suit property belonged to DDA/government but added that her statement was recorded without disclosing true facts and by pressurizing her. She stated that her son was also present when her statement was recorded.
Tej kaur & Ors. Vs. DDA 8/16 Suit No. 253/2006
7. PW 2, Smt. Devender Kaur, entered the witness box on 28.02.2003 and tendered her affidavit in evidence which states the same facts as were stated in the plaint.(This affidavit was not also formally tendered in evidence but only filed. Since the witness has also been cross examined on this very affidavit, the error is merely technical.) Ex PW 2/1 is the special power of attorney executed by Sh Surjit Singh in favour of PW2.
In her cross examination, she stated that she was not aware about the present case or if the suit property fell in Lal Dora. She did not know any proceedings before Estate Officer of the year 1966 and 1967. She could not say if the suit property fell in khasra no. 224 min. and 182 min. Village Arakpur Bagh Mochi. She could not say if the suit property was transferred to DDA by nazul agreement.
8. PW 3, Sh. Rajender Singh, entered the witness box on 06.10.2004 and tendered his affidavit Ex PW1/3 (referred to as Ex P1/3 in testimony) which states the same facts as were stated in the plaint.
In his cross examination, he admitted that the suit property fell in khasra no. 224 min. and 182 min. Village Arakpur Bagh Mochi. He admitted that both these khasra are DDA land. He could not say if his possession over the suit property was unauthorized. He admitted that previously issued demand for damages was withdrawn holding that the suit property feel in khasra no. 158. He did not know what statement was Tej kaur & Ors. Vs. DDA 9/16 Suit No. 253/2006 made by Smt Tej Kaur in the DDA office but stated that he was told that her signatures were not obtained voluntarily.
9. PW 3A (wrongly referred to as PW 3 again), Sh. Ram Phal, Assistant, entered the witness box on 28.02.2003 with the copy of the summoned record i.e file bearing no. EB/ABM/85/38 and stated that the original was not available.
10. PW 4, Sh. Kundan Singh, Assistant, DDA, entered the witness box on 17.10.2003 but he did not have the summoned record, that is, record pertaining to khasra no 158, Village Mauchi Bagh Nanakpura.
11. In its support defendant has examined four witnesses. DW 1, Sh. Bijender Singh, Damage Collector, DDA entered the witness box on 31.08.2007 and tendered his affidavit Ex D1 in evidence. Ex D1 states the same facts as were stated by the defendant in the written statement. He relied on document Ex DW 1/1 which is the copy of nazul agreement. Ex DW 1/2 to Ex DW 1/4 are the copies of notices for assessment of damages. Ex DW 1/5 is the copy of notice dated 18.02.1986 and Ex DW 1/6 is the copy of withdrawal order of this notice. Ex DW 1/7 is the copy of notice dated 25.07.1995 and copy of statement of plaintiff no. 1 and order on this notice is Ex DW 1/8.
In his cross examination, he admitted the suggestion that Tej kaur & Ors. Vs. DDA 10/16 Suit No. 253/2006 notice dated 07.07.1982 was issued in respect of property falling in khasra no. 224 min. in the name of Sh. Giani Ram Singh. He filed copy of proceedings with respect to notice dated 18.02.1986 as Ex DW 1/P1. He admitted that vide Ex DW 1/P1 the Ld. Estate Officer had observed that premises no. 158 belonged to the plaintiff. He could not tell about the ownership of property being with DDA. He stated that the entire Village Arakpur Bagh Mochi belongs to DDA.
12. DW 2, Sh. Fakir Chand, A.D, DDA entered the witness box on 31.01.2011 and tendered his affidavit Ex DW 2/X in evidence. Ex DW 2/X states the same facts as were stated by the defendant in the written statement. He relied on documents already Ex DW 1/7 and Ex DW 1/8.
In his cross examination, he could not say if the suit property was a nazul land or not but later stated that the suit property was located in nazul land. He admitted withdrawal of show cause notice Ex DW 1/P1. He further admitted that earlier notice for damages for 01.0.1952 to 31.03.1962 was withdrawn on 23.03.1966. He denied the suggestion that Ex DW 1/8 was a procured statement of plaintiff no. 1 obtained by DDA by misleading her.
13. DW 3, Sh. Jai Pal Singh, Kanungo entered the witness box on 19.01.2012 and tendered his affidavit Ex DW 3/X in evidence. Ex. DW Tej kaur & Ors. Vs. DDA 11/16 Suit No. 253/2006 3/X states the same facts as were stated by the defendant in the written statement. He relied on copy of jamabandi for the year 197374 as Ex DW 3/1 and copy of aks sajra as Ex DW 3/2.
In his cross examination he did not know the name of the Patwari who had prepared aks sajra Ex DW 3/2.
14. DW 4, Smt. K.R. Chawla, Assistant Director, DDA, entered the witness box on 01.08.2012 and tendered her affidavit Ex DW 1/X in evidence. Ex DW 1/X states the same facts as were stated by the defendant in the written statement. It also states that khasra no. 543/150A and house No. 158 are two different properties located far away from each other. She relied on documents already Ex. DW 1/1 to Ex DW 1/7.
In her cross examination, she filed copy of file notings Ex DW 4/P1 to say that the damages in respect of the suit property were received by DDA upto 31.03.1981. She stated that copy of order dated 23.03.1966 Mark A was not available in the DDA records. She filed copy of letter dated 04.01.1988 issued by DDA to the Branch Manager, Punjab National Bank as Ex DW 4/P2. She admitted withdrawal of show cause notice Ex DW 1/P1.
15. I have heard both the parties and have perused the record.
16. Issuewise findings are as under:
Tej kaur & Ors. Vs. DDA 12/16 Suit No. 253/2006
Issue No. 1 : Whether suit is bad for want of notice under Section 53B Delhi Development Act? OPD The onus of proving this issue was on the defendant. No evidence has been led to show how the present suit for injunction is not covered under the exemption provided under Section 53 B, Delhi Development Act. On the contrary, plaintiff has relied on Ex PW1/2 to Ex PW1/3 to show that the statutory notice was indeed served on DDA.
Accordingly this issue is decided in the favour of plaintiff and against the defendant.
17. Issue No. 2 : Whether plaintiff is entitled for the relief of declaration, as prayed for? OPP The onus of proving this issue was on the plaintiff. It is the admitted case of parties that DDA had assessed the suit property for damages and a number of notices Ex DW1/2 to Ex DW1/5 were issued under the Public Premises (Eviction of Unauthorized Occupation) Act were issued which were later withdrawn. It is the case of plaintiff that the suit property falls in abadi lal dora of the Village Arakpur Bagh Mochi and therefore not under the management and control of DDA. It may be mentioned at the outset that plaintiff has not even once mentioned the khasra number of the suit property. No lal dora certificate issued by the Tej kaur & Ors. Vs. DDA 13/16 Suit No. 253/2006 revenue department has been filed. The only documents that the plaintiff has relied upon are the orders passed by the Estate Officer. Order Ex DW1/6 (also Mark B as relied upon by PW1) reveals that the proceedings under Public Premises (Eviction of Unauthorized Occupation) Act were dropped against "Punjab National Bank r/o kh. no. 158" because "kh. no. 158 of Village Arakpur Mochi Estate" fell in lal dora area. It also records that the halqa patwari in his statement recorded on 08.01.1988 has stated that "kh. no. 158" falls in lal dora village abadi. This however, is not the case of plaintiff. Plaintiff claims that the suit property is property no. 158 and not a property in khasra no.
158. On the contrary, PW1 and PW3 admitted that the suit property fell in khasra no. 224 min. and 182 min. Village Arakpur Bagh Mochi.
18. Order dated 23.03.1966 Mark A is only a photocopy. In any case it records that the proceedings under Public Premises (Eviction of Unauthorized Occupation) Act were dropped on the basis of the statement of Halqa Patwari. The statement of the Halqa Patwari however has not been filed. The facts of the present case are such that there is a confusion between khasra no. 158 and property no. 158 and even the orders by Ld Estate Officers have been passed on the basis that the suit property is situated in khasra no 158. Without going through the statement of the Halqa Patwari, no reliance can be placed on Mark Tej kaur & Ors. Vs. DDA 14/16 Suit No. 253/2006 A. Even notices DW1/2 to DW1/4 clearly record that the same are issued in respect of khasra no 224 min Village Arakpur Bagh Mochi. DW1 also admitted a positive suggestion put to him that notice dated 07.07.1982 was issued in respect of property falling in khasra no. 224 min. in the name of Sh. Giani Ram Singh.
19. Jamabandi Ex DW3/1 records that khasra no 224 and 182 are government land. Further while PW1 could not say if the suit property was transferred to DDA by nazul agreement, PW3 admitted that both khasra 224 and 182 are DDA land. PW3 did not deny the suggestion that his possession over the suit property was unauthorized. PW2 stated that she was not aware of the facts of the case and therefore her testimony is liable to be discarded.
20. It is therefore, clear that the suit property falls in khasra no 224 and 182 Village Arakpur Bagh Mochi which is government land. The previous orders passed by the Ld Estate Officers were in respect of and on the basis that the property in question is falling in khasra no 158. The order Ex DW 1/8 irons out the confusions and the errors committed in the previous withdrawal orders.
Accordingly, this issue is decided against plaintiff and in favour of the defendant.
Tej kaur & Ors. Vs. DDA 15/16 Suit No. 253/2006
21. Issue No. 3 : Whether the plaintiff is entitled for the relief of permanent injunction, as claimed for? OPP The onus of proving this issue was on the plaintiff. In view of the findings on issue no.2, plaintiff is not entitled to injunction against collection of damages in respect of suit property.
Accordingly, this issue is decided against plaintiff and in favour of the defendant.
22. Issue No.4 : Relief In view of the aforesaid discussion, suit of the plaintiffs is dismissed. In view of the facts of the case, parties to bear their own cost. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in the open Court on 23.09.2013.
(Richa Gusain Solanki) Civil Judge (West) THC, Delhi/ 23.09.2013.
Tej kaur & Ors. Vs. DDA 16/16