Delhi District Court
M/S Purana Bardana Merchant ... vs Delhi Development Authority on 2 June, 2015
IN THE COURT OF SH. SHAILENDER MALIK
SCJCUMRC (N/W) : ROHINI COURTS : DELHI
Suit No. 130/13/11
M/s Purana Bardana Merchant Association (regd.)
Through its Secretary and Authorized
Representative Sh. Bhim Prakash
S/o Sh. Durga Dutt,
Having main office at H4/1719,
Jahangirpuri, Delhi110053 Plaintiff
Vs
1. Delhi Development Authority
Through its Vice Chairman
Vikas Sadan, INA
New Delhi
2. The Director
APMC
9, Institutional Area,
Pankha Road, Janakpuri,
New Delhi
3. The Secretary
APMC
Sarai Pipal Thala
Azadpur Fruit Mandi
Azadpur, Delhi Defendants
Date of institution: ....... 08.03.2011
Date of reserving order: ....... 02.06.2015
Date of announcing order: ....... 02.06.2015
Page No. 1/10
JUDGMENT
1. I propose to adjudicate upon following preliminary issues framed on 28.04.2014:
1. Whether the suit is bad for want of prior notice under Section 53 B of DD Act, if so to what effect?
2. Whether the suit is barred under Section 9 CPC as property in question is acquired land under Land Acquisition Act and civil suit is not maintainable?
2. Facts necessary for deciding above mentioned 2 preliminary issues are that plaintiff i.e. M/s Purana Bardana Merchant Association has filed the present suit through its authorized representative Sh. Bhim Prakash for decree of permanent injunction. It is stated that the plaintiff society is registered under the Societies Registration Act and is engaged in the business of old wooden boxes. Members of the plaintiff association were earlier running their business of bardana in Old Subzi Mandi and thereafter shifted to Azadpur Subzi Mandi in 197576. It is stated that the members of plaintiff association are occupying their respective portion at Block of land as shown in red in the site plan which is adjacent to Azadpur Subzi Mandi and they have been occupying the said land(suit property) since the day of shifting from Old Subzi Mandi. It is stated that respective portion of suit property is under possession of different members of plaintiff society and is the only source of their livelihood. Plaintiff society through its secretary Sh.
R.P. Singh have been making representation to DDA and other Govt. department submitting their grievances and for redressal of the same as per law. Plaintiff's society also put proposal for allotment of suit land to it by charging market rate of the same since the work of plaintiff society is very ancillary and part and partial of functioning of Subzi Mandi therefore Page No. 2/10 plaintiff society made many representation to the planning wing of DDA and they have even made survey of the suit property and prepared a site plan by demarcating the suit land. It is stated that DDA at best can allot the suit land or the adjoining area by charging market rate of the land. It is stated that suit land belongs to DDA and same is at its disposal whereas member of plaintiff society are doing their commercial work at the suit land which is totally in co relation to the work of subzi mandi. It is stated that member of plaintiff society are engaged in bardana business since long and are willing to pay the market rate of the suit land. The DDA if it agreed to allot the same to plaintiff society. Plaintiff society is in settled possession of the respective portion of the suit land and is neither the encroacher nor the tress passer whereas some official of the DDA are bent upon to remove the member of the plaintiff society. Hence the present suit was filed with the prayer for decree of permanent injunction to restrain the defendants (DDA and APMC) from creating any hindrance in running of work of bardana from the suit premises and also from dispossessing the member of the plaintiff society.
3. WS has been filed on behalf of deft. no.1/DDA taking the objection that suit is not maintainable for want of prior notice u/s 53B of DDA Act and moreover member of plaintiff association are tress passer at the Govt. land. As such have no locus standi to file the present suit. It is stated that the suit is not maintainable as the suit is in respect of a land which has already been acquired under the Land Acquisition Act which is self code in itself. It is stated that plaintiff have concealed material facts. While denying the case of the plaintiff on merits it is pleaded that suit land has not been property described in proper site plan. Moreover it is denied that plaintiffs are occupying the suit property since shifting of Subzi Mandi. It is pleaded that suit land has been acquired by Award no. 1545 and possession of the same was handed over by Land Acquisition Collector to DDA on 25.5.1963 and 9.9.1963. The site in question is being developed for truck parking however Page No. 3/10 member of the plaintiff association illegally and unauthorizedly encroached upon the Govt/DDA land and they are liable to vacate the same. It is pleaded that for removal of their unauthorized encroachment number of demolition programmes were fixed and even six programmes were executed successfully and unauthorized encroachment was removed from the govt./DDA land. It is stated that the land is at the disposal of the DDA and decision from the higher level has already been taken for transferring the land in question total measuring 40222 Sq. meter to Delhi Agricultural Marketing Board vide office letter dated 26.07.07.
4. WS has also been filed on behalf of defendant no. 2 and 3 (APMC) wherein preliminary objection is taken that suit is an abuse of process of law and not maintainable being devoid of cause of action. Plaintiff have concealed material facts and plaintiffs have no locus standi to institute the present suit. It is also pleaded that suit is not maintainable in view of the provision of Sec. 41(g)(h)&(i) of Specific Relief Act and also barred in view of the provision of Sec. 111 of Delhi Agricultural Produce & Marketing Act 1998 as no notice has been given prior to filing of the present suit. While case of the plaintiff has been denied on merits.
5. On the basis of pleadings as come on the record this court on 28.04.2014 framed different issues including above mentioned 2 issues, which were taken up as preliminary issues.
6. I have heard ld. Counsels for plaintiff and DDA and has gone through the record carefully. My finding on each of the above issues are following Issue no. 1.
(Whether the suit is bad for want of prior notice under Section 53 B of DD Act, if so to what effect?) Page No. 4/10 This issue has been framed on the objection taken on behalf of defendant/DDA regarding non service of prior notice under Section 53B of DD Act. It be noted that it is a suit for injunction simplicitor therefore, in terms of Section 53 B(2) of DD Act, when suit is for injunction, suit may not be dismissed for want of prior notice under the above said provision, therefore, I find that suit can still be maintained even if no prior notice in terms of Section 53 B of DD Act was served to DDA 6 months prior to the filing of the suit.
Issue no. 2 (Whether the suit is barred under Section 9 CPC as property in question is acquired land under Land Acquisition Act and civil suit is not maintainable?)
7. Having considered the facts arising out of pleadings as discussed above, it would be clear from the reading of plaint that plaintiff association i.e. M/s Purana Bardana Merchant Association has filed the present suit through its representative Bhim Prakash seeking relief of injunction on the basis of being in possession of land adjacent to Azadpur Subzi Mandi as shown red in the site plan. Plaintiff claim to be in possession of such land continuously since old Subzi Mandi was shifted to Azadpur Subzi Mandi in 197576. Plaintiff association claim to be carrying out business of old wooden box/bardana which is ancillary to Vegetable trading in the area. First of all it be noted that during the course of proceedings it has already come on the record in the shape of WS of DDA as well as by way affidavit of Sh. E. Raja Babu, Director, Land Management of DDA to the effect that land in question has already been acquired vide award no. 1545 and possession of the same was also handed over to DDA on 25.05.1963 and 09.09.1966 and notification in terms of Section 22 of DD Act was also issued on 05.09.1964 as said land was put under the disposal of DDA. Thereafter same was Page No. 5/10 transfered to engineering department of DDA for 30.11.1965 and 30.08.1966 for developing Ideal Truck Parking. Plaintiff association or members of purana bardana were unauthorized occupants of such land and therefore under a demolition programme carried out by DDA unauthorized encroachment was removed and huge side shed were also removed by DDA as unauthorized sheds were constructed on that land. That being the factual position if the land in question is acquired land and demolition programme was already carried out once as stated in the affidavit of Director DDA, I find that arguments of ld. Counsel for the plaintiff that present suit being filed for civil right of plaintiff association as they are in possession therefore, suit is very much maintainable under Section 9 of CPC, is not legally sustainable because no doubt, as per Section 9 CPC a civil suit can be filed in respect of civil right unless the cognizance of the same has been expressly or impliedly barred. Where taking of cognizance of a matter by civil court is expressly barred, in that situation civil court cannot proceed with the suit. In this case also when it has already come on record that land in respect of which plaintiffs have filed the present suit is already acquired and vest in Government/DDA. Status of plaintiffs being no less than encroacher on the Government land, in such situation I find that in view of the judgment of apex court, it is clear that when land has already been subjected to acquisition and has been put to the disposal of DDA in such situation civil court has no jurisdiction to entertain the suit for injunction at the instance of those who are occupying the acquired land of Government. In State of Bihar vs. Dhirendra Kumar, 1995 (4) SCC 229, it was held by Apex Court as under:
8. "The question is whether a civil suit is maintainable and whether ad interim injunction could be issued where proceedings under the Land Acquisition Act was taken pursuant to the notice issued under Section 9 of the Act and delivered to the beneficiary. The provisions of the Act are Page No. 6/10 designed to acquire the land by the State exercising the power of eminent domain to serve the public purpose. The State is enjoined to comply with statutory requirements contained in Section 4 and Section 6 of the Act by proper publication of notification and declaration within limitation and procedural steps of publication in papers and the local publication envisaged under the Act as amended by Act 68 of 1984. In publication of the notifications and declaration under Section 6, the public purpose gets crystallized and becomes conclusive. Thereafter, the State is entitled to authorize the Land Acquisition Officer to proceed with the acquisition of the land and to make the award. Section 11A now prescribes limitation to make the award within 2 years from the last date of publication envisaged under Section 6 of the Act. In an appropriate case, where the Govt. needs possession of the land urgently, it would exercise the power under Section 17(4) of the Act and dispense with the enquiry under Section 5A. Thereon, the State is entitled to issue notice to the parties under Section 9 and on expiry of 15 days, the State is entitled to take immediate possession even before the award could be made. Otherwise, it would take possession after the award under Section 12. Thus, it could be seen that the Act is a complete code in itself and is meant to serve public purpose. We are, therefore, inclined to think, as presently advised, that by necessary implication the power of the civil court to take cognizance of the case under Section 9 of 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 and declaration under Section 6, except by the High Court in a proceeding under Article 226 of the Constitution. So, the civil suit itself was not maintainable."
9. Same view was taken in Laxmi Chand vs. Gram Panchayat, Kararia, 1996 (7) SCC 218 when, it was held that validity or otherwise of Page No. 7/10 the acquisition proceedings cannot be questioned before the civil court. Observation of Apex Court in paras 2 and 3 are being reproduced below :
10. ".......It is seen that Section 9 of the Civil Procedure Code, 1908 gives jurisdiction to the Civil Court to try all civil suits, unless barred. The cognizance of a suit of civil nature may either expressly or impliedly be barred. The procedure contemplated under the Act is a special procedure envisaged to effectuate public purpose, compulsorily acquiring the land for use of public purpose. The notification under Section 4 and declaration under Section 6 of the Act are required to be published in the manner contemplated thereunder. The inference gives conclusiveness to the public purpose and the extent of the land mentioned therein. The award should be made under Section 11 as envisaged thereunder. The dissatisfied claimant is provided with the remedy of reference under Section 18 and a further appeal under Section 54 of the Act. If the Government intends to withdraw from the acquisition before taking possession of the land, procedure contemplated under Section 48 requires to be adhered to. If possession is taken it stands vested under Section 16 in the State with absolute title free from all encumbrances and the Government has no power to withdraw from acquisition.
11. It would thus be clear that the scheme of the Act is complete in itself and thereby the jurisdiction of the Civil Court to take cognizance of the cases arising under the Act, by necessary implication, stood barred. The Civil Court thereby is devoid of jurisdiction to give declaration on the invalidity of the procedure contemplated under the Act. The only right an aggrieved person has is to approach the Constitutional Courts, viz., the High Court and the Supreme Court under their plenary power under Articles 226 and 136 respectively with selfimposed restriction on their exercise of extraordinary power. Barring thereof, there is no power to the Civil Court."
Page No. 8/1012. Reference can also be given judgment of Apex Court in Commr., Bangalore Development Authority v. K. S. Narayan AIR 2006 SC 3379 wherein it was held that where plaintiff is assailing validity of acquisition proceedings on the ground that notice under S. 17(5) of LA Act was not served upon plaintiffs and its effect, same can only be examined in writ petition filed under Art. 226 of Constitution before High Court and not by Civil Court.
13. It is also very much evident from the judgment of Delhi High Court in Bahadur Singh and ors. Vs. Union of India and ors 122 (2005) DLT 586 (DB) ; Raj Kishore and ors Vs. DDA 204 (2013) DLT 606 and in Sukhbir Singh Vs. Lt. Governor of Delhi and ors. Manu/DE/3680/2011 wherein it has been held by Hon'ble High Court of Delhi while referring to different judgments that if after symbolic possession in pursuance to acquisition is taken, even if the person to whom the land belonged earlier continuous in possession, he enjoys the possession as a trustee on behalf of public at large and that by itself cannot be considered to be a ground to contend that possession is not taken. It is also held that one cannot subsequently come to the court to say that actual possession has not been taken. I find that ratio of these judgment squarely apply to the facts of the present case also and therefore, I find that this court has no jurisdiction to entertain the present suit for injunction when the land has already been acquired and vested with DDA.
14. Ld. Counsel for the plaintiff has relied upon a judgment reported in AIR 1995 SC 2001 regarding the expression word "civil" and "civil nature"
as used in Section 9 of CPC. That judgment is altogether on different factual aspect, moreover, in that case court was drawing distinction between issues relating to civil matter and religious matters. Similarly, judgment reported in Page No. 9/10 AIR 2003 SC 2508, Ramesh Chand Vs. Anil Panjwani, in that case also Hon'ble Apex Court was considering the issue regarding exclusive jurisdiction conferred to special tribunal under Rajasthan Cooperative Society Act. Evidently those judgments are completely out of factual context and thus can be of no use to plaintiff.
15. Thus for the reasons discussed above I find that suit is not maintainable in civil court and accordingly issue stands decided against the plaintiff and suit stands dismissed being not maintainable. File be consigned to record room.
Announced in open court on 02nd June, 2015 SHAILENDER MALIK (SCJRC, ROHINI COURTS, DELHI) Page No. 10/10