Delhi District Court
Shri Bale Ram vs State (Govt. Of Nct Delhi) on 15 December, 2012
IN THE COURT OF SHRI RAJ KUMAR TRIPATHI,
SENIOR CIVIL JUDGE (SOUTH),
SAKET COURTS, NEW DELHI.
CS No. 173/11/2009
Unique Case ID No. 02406C0502512009
Shri Bale Ram
S/o late Shri Molar
R/o Village Rewala Khanpur,
New Delhi 110 043.
Plaintiff
Versus
1. State (Govt. of NCT Delhi)
Through its Secretary (Revenue)
5, Shyam Nath Marg, Delhi.
2. Block Development Officer (SW),
Najafgarh New Delhi 110 043.
3. Sub Divisional Magistrate
(Najafgarh), Delhi.
4. SHO,
Police Station Najafgarh,
New Delhi.
5. MCD (Service be effected)
through its commissioner,
Town Hall, Delhi.
Defendants
CS 173/11/09 Page 1 of 19
DATE OF INSTITUTION : 10.09.2007
DATE OF RESERVING JUDGMENT : 07.12.2012
DATE OF PRONOUNCEMENT : 15.12.2012
SUIT FOR PERMANENT INJUNCTION
JUDGMENT
1. The plaintiff Bale Ram filed the present suit for permanent injunction against the defendants wherein he prayed for restraining the defendants, their employees and associates from excavating and constructing "Nallah" in front of his property between the Phirni (thoroughfare) bearing khasra no. 116 and his property as shown in red in the site plan situated at Village Rewala Khanpur, New Delhi (hereinafter referred to as "suit property").
2. Brief facts of the plaintiff's case is that during the consolidation proceedings done under the provisions of East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 in the year 197071, the plaintiff and his family members were allotted plots bearing no. 185 (14) and 184(10) against their demand in accordance with the consolidation scheme of the village and the possession was also given to CS 173/11/09 Page 2 of 19 them. After the allotment of aforesaid plots, the plaintiff and his other family members by way of mutual family arrangement divided the plots. As a consequence of the family arrangement, the plot no. 184 was given to plaintiff while plot no. 185 was given to the other family members. Thereafter, the plaintiff constructed house on the rear side and on the front side, there is boundary wall with iron gate. The plaintiff states that his family is residing in the house and teather their cattle in the front portion and also parks the tractor. According to plaintiff, before the start of construction, he and his family members had got the demarcation of the plots no. 184 and 185 done alongwith another plot no. 102. After demarcation of both the plots, the plaintiff constructed his house and boundary wall in the year 1992. The plaintiff has stated that his property is bounded as under:
i.On the North house of Balister ii.On the South Phirni - thoroughfare.
iii.On the East plot no. 182 and 183.
iv.On the West property on plot no.185.CS 173/11/09 Page 3 of 19
3. The plaintiff has stated that the Phirni road falls on the front of his property and he and his family members have been using the Phirni as right of way since the day of allotment of the plot in the year 19701971 without any interference or obstruction from any corner. The plaintiff claims to have easementary rights over the said Phirni road. He has stated that even otherwise also the Phirni road being appurtenant to his property, he is the dominant owner. The plaintiff has stated that he has not encroached upon anybody's land. He alleged that the defendant no. 2 in collusion with the owner of agricultural land, which falls across the Phirni (thoroughfare) appears to have changed the alignment of nallah and want that nallah is constructed in front of his property. The plaintiff claims to have learnt that defendant no. 1 wants to construct a nallah adjoining Phirni and the proposal which was to be over the agricultural land across the Phirni has got changed under the influence of land owner who got the alignment of nallah changed and made the same in front of his property. The plaintiff states that he is the dominant owner for the beneficial enjoyment of the land/Phirni in front of his property. He has alleged that the defendants want to create obstruction and to diminish the value of his property and / or its use and enjoyment by constructing CS 173/11/09 Page 4 of 19 nallah in front of his property. He has further alleged that virtually he would be deprived of the use and enjoyment of his property. According to plaintiff, it will be hazardous and dangerous to him and his family members to use the property in case nallah is constructed in front of his house and his right of passage / way will be taken away. He has stated that the act of defendants for making alignment and digging of the nallah in front of his property is illegal and the defendants have no legal right to construct the same in front of his property. The plaintiff has alleged that the defendants did not issue any notice or give any opportunity of hearing to him regarding the proposed construction of the nallah. He has stated that on 24.08.2006 in his absence, the defendants came alongwith police force and two bulldozers and arbitrarily without hearing him demolished the part of the boundary wall of his house. The plaintiff raised protest with BDO/Tehsildar and SDM but they did not pay any heed to his request and demolished the boundary wall. The plaintiff has stated that he moved application for measurement and deposited Rs. 5,000/ as fee. He prayed for getting the site measured through Electronic Total Station Equipment machine but the interested villagers alongwith the revenue staff approached the company namely M/s Deeba Orthiographics (P) Ltd CS 173/11/09 Page 5 of 19 and got their report tampered. Thereafter on 12.07.2007 at about 6.00 PM Tehsildar, Punchayat Secretary alongwith defendant no. 4 came alongwith bulldozers and carried out the demolition of further part of the portion of plaintiff's property. The plaintiff has alleged that the demarcation, which was repeatedly requested by him by appointment of local commissioner or through the above mentioned equipment was not done arbitrarily. He has further alleged that the defendants are threatening to construct nallah in front of his property. On 03.09.2007, the villagers alongwith revenue staff came on the spot and disclosed that the work of construction of the nallah was to be done within a week and the said exercise will be done in front of his house.
4. The suit filed by the plaintiff has been resisted by defendants no. 2 and 3. The defendants in their written statement have contended that the suit property belongs to Gaon Sabha as per the demarcation report. The possession of suit property has already been taken and handed over to MCD for the purpose of drain. The defendants have denied that plaintiff has any easementary right on the suit property. The defendants admitted of deposition of fee for demarcation by the plaintiff. It is stated that on the request of plaintiff, the demarcation was carried out and as CS 173/11/09 Page 6 of 19 per the demarcation report the Gaon Sabha is the owner of the suit property. The defendants contended that after demolishing the structure, the possession of the property was taken over by them. Rest of the averments made in the suit has been denied by the defendants.
5. The defendant no. 5 has also contested the suit of the plaintiff by way of filing written statement wherein the preliminary objection is taken that the suit of the plaintiff is barred by the provisions of Section 477/478 of The DMC Act for want of service of statutory notice. The defendant has stated that the plaintiff has suppressed the material facts from the Court in as much as the defendant/MCD has already issued a work order no. EEVI/Plan/TC/0506/303 dated 28.03.2006 for construction of drain from Shiv Mandir to Tyagi House on Phirni road at village Rewla, Khanpur, Najafgarh, New Delhi. It is stated that the construction work of the drain from Shiv Mandir to Tyagi House on Phirni Road has already been completed for the welfare of the public at large over the public land/government after following due process of law. It is further stated that no construction work in respect of the aforesaid nallah in question has been carried out by MCD in front of the suit property. The defendant denied rest of the allegations made against it. CS 173/11/09 Page 7 of 19
6. The defendants no. 1 and 4 despite due service of process upon them failed to file their written statement to the suit of the plaintiff despite sufficient time and opportunity given to them. Therefore, their defence was struck off vide order dated 15.07.2009.
7. The plaintiff filed replication to the written statement of the defendants wherein he has controverted and denied the averments made in the written statement and has reasserted his stand as taken in the plaint.
8. Vide order dated 01.09.2010, learned predecessor of the Court framed the following issues for adjudication of the matter for trial: i. Whether suit of the plaintiff is hit by the provisions of Section 478 of The DMC Act? OPD5.
ii. Whether plaintiff has suppressed the material facts from the Court? OPD5.
iii. Whether plaintiff is entitled to the relief of permanent injunction as prayed for? OPP.
iv. Relief.
CS 173/11/09 Page 8 of 19
9. In the course of trial, the defendants no. 2 and 3 also stopped appearing in the Court. Therefore, they were proceeded exparte vide order dated 21.08.2012.
10. I have heard and considered the submissions advanced by Shri Anuj Garg, learned counsel for plaintiff and Mr. Rajiv Bhardwaj, learned counsel for defendant no. 5, gone through the testimony of witnesses and the documents proved by them during their deposition. I have also gone through the written submissions filed by plaintiff and the judgments relied upon by him. On the basis of material available on record, my issuewise findings are given as under:
ISSUE NO. 1
Whether suit of the plaintiff is hit by the provisions of Section 478 of The DMC Act? OPD5.
11. Onus to prove this issue lies on the defendant no. 5. The defendant in its written statement took the objection that the suit of the plaintiff is barred by the provisions of Section 477/478 of The DMC Act, 1957 for want of statutory notice prior to the filing of the suit. The plaintiff has filed the present suit for permanent injunction against the CS 173/11/09 Page 9 of 19 defendants wherein urgent relief of injunction has been claimed. The plaintiff alongwith his suit moved an application for exemption from issuing statutory notice. The said application of plaintiff was allowed on 10.09.2007 by the learned predecessor of the Court by observing that the allegations made by the plaintiff in his plaint was of serious and urgent nature. Moreover, in view of Section 478(3) of DMC Act, service of prior notice upon the defendant is not required when urgent relief of injunction is claimed. The defendant has failed to discharge the onus to prove this issue. Accordingly, this issue is decided against the defendant.
ISSUE NO. 2.
Whether plaintiff has suppressed the material facts from the Court?
OPD5.
12. Onus to prove this issue lies on the defendant no. 5. The defendant no. 5 has not examined any witness in support of its contentions. The defendant in its written statement has contended that the plaintiff has suppressed the material facts from the court in respect of issuance of work order EEVI/Plan/TC/0506/303 dated 28.03.2006 for construction of drain from Shiv Mandir to Tyagi House on Phirni road at village Rewla, Khanpur, Najafgarh, New Delhi. The defendant further CS 173/11/09 Page 10 of 19 stated that 75% of the construction work of the drain was already completed and only the construction of drain in front of property of plaintiff has not been carried out. The plaintiff filed replication wherein he has specifically neither admitted nor denied about the factum of construction of drain by the MCD at other parts of the Phirni. He has maintained a suspicious silence on this aspect. However, he stated that as per the admission of defendant/MCD, no construction work was carried out by MCD in front of his property. Merely because the plaintiff did not disclose about the issuance of work order by MCD and the completion of major part of work of construction of drain by the MCD, it cannot be said that the plaintiff is guilty of suppression of material facts and only on this ground, the suit of the plaintiff cannot be dismissed. The defendant has miserably failed to prove on record that the factum of issuance of work order was within the knowledge of the plaintiff and he intentionally and deliberately did not disclose the same to the Court. Thus, the defendant has failed to discharge the onus to prove this issue. Accordingly, this issue is decided against the defendant.
CS 173/11/09 Page 11 of 19 ISSUE NO. 3 Whether plaintiff is entitled to the relief of permanent injunction as prayed for? OPP.
13. Onus to prove this issue lies on the plaintiff. In order to discharge the onus to prove the issue, the plaintiff has examined himself as PW1. He also got examined his son Mr. Ajit Singh as PW2 in support of his case. The plaintiff as well as his son Mr. Ajit Singh both filed their evidence by way of affidavit wherein they have reiterated and re affirmed the same facts as stated in the plaint. The plaintiff has also got examined PW3 Mr. M.A. Chistya, PW4 Mr. L.B. VermaPatwari, PW5 Mr. Bimal Rai and PW6 Ms. Neha Yadav in support of his case. On the other hand, the defendants have not examined any witness in support of their averments as made in the written statement.
14. The plaintiff in his suit has prayed for restraining the defendants and its officials from excavating and constructing nallah in front of his property between the Phirni (thoroughfare) bearing khasra no. 116 and his property. Admittedly, the nallah is proposed to be constructed on the public land. The plaintiff has got no right, title or interest over the government land. It is not the case of the plaintiff that the defendants wanted to construct the nallah only in front of his property. The nallah CS 173/11/09 Page 12 of 19 was to be constructed on a particular stretch of land i.e from Shiv Mandir to Tyagi House on the Phirni Road at Village Rewla, Khanpur, Najafgarh, New Delhi. The drain was/is proposed to be constructed by the defendants for the welfare of the public at large over the government land. The 75% work of construction of the drain has already been completed. The plaintiff has nowhere alleged in his suit that he has only been singled out by the defendants in construction of nallah on the Phirni road. There are large number of persons whose property are situated where the proposed nallah was to be constructed. None of the other residents adjoining the place where the nallah was to be constructed have raised any grievance or made any complaint to any authority. In these circumstances, only on the instance of one or two persons, the policy of the government cannot be changed.
15. The defendant no. 2 and 3 in their written statement have categorically stated that by demolishing the structure which was encroached by the plaintiff, the possession was taken over and the same has been handed over to MCD for construction of the drain. The factum of removal of encroachment has been admitted by the plaintiff himself in his suit. In para no. 10 and 11 of the suit, the plaintiff has admitted that CS 173/11/09 Page 13 of 19 the defendants came alongwith the police force and two bulldozers and arbitrarily demolished the boundary wall of his house without issuance of any notice or giving any hearing to him. If, the demolition alleged to be carried out by defendants was illegal, the plaintiff was supposed to approach the competent authority and seek the remedy as available to him in law. The plaintiff has even not filed a suit for compensation against the illegal demolition alleged to be carried out by defendants. The plaintiff does not have any grievance in respect of the demolition action as carried out by defendants. His only prayer in the suit is to restrain the defendants from constructing the nallah in front of his property.
16. The plaintiff moved application for measurement of the site through Electronic Total Station Equipment machine and deposited Rs. 5,000/ with the concerned authority. On the request of plaintiff, the demarcation was carried out and as per the demarcation report, it was found that the suit property belongs to Gaon Sabha, therefore, the possession of the same was taken after demolition of the structure and the same was handed over to MCD for construction of drain. The allegation of plaintiff is that the demarcation report was tampered by the revenue officials. In order to prove that there was tampering in the CS 173/11/09 Page 14 of 19 demarcation report, the plaintiff has got examined Mr. M.A. Chistya i.e PW3 who conducted the demarcation and prepared the graphs. This witness has nowhere stated in his deposition that any tampering was done in his report by the revenue officials. He has stated that he conducted the demarcation and prepared the graphs with autocad format on 20.12.2006 (four pages). He categorically stated that his work was only for mustkil stones and wall lines. He stated that in his graphs, the additional work was conducted by the staff of BDO office who had come to check the drawings. He stated that the additional work was not in relation to his original work. He stated that his work was relating to wall line. He admitted that the area of fields including the Phirni area was completed upto the wall line. The built up area is beyond the wall line and there is no encroachment on the field and Phirni area of the revenue department. From the deposition of PW3, it is seen that he conducted the demarcation and prepared the report. He confined his work on the aspect which was assigned to him. The additional work, which was done by the revenue officials on the graph was shown on the drawings. This additional work was in no way related to the original work done by PW3. Thus, it cannot be said that there was tampering in the demarcation report. Even if it is CS 173/11/09 Page 15 of 19 believed to be true that there was tampering in the demarcation report, the plaintiff was expected to make complaint to the higher authorities in respect of the tampering done by the officials. The plaintiff did nothing and kept quiet. He did not make any allegation of tampering with higher authorities. Therefore, it cannot be accepted at this stage that the demarcation report prepared by the official was tampered. The plea of tampering of demarcation report appears to be afterthought and misconceived.
17. The plaintiff summoned the record of case file titled as Ashok Kumar v. Union of India and Others from the Court of learned ASCJ, Dwarka Courts, New Delhi. He got proved the certified copy of suit filed by Mr. Ashok Kumar Ex.PW1/6, the testimony witnesses Ex.PW6/2 to Ex.PW6/12 and judgment and decree dated 12.07.2012 passed in the said suit Ex.PW6/13 and Ex.PW6/14 respectively. The plaintiff has heavily relied upon the judgment passed in the case of Mr. Ashok Kumar v. Union of India. First of all, I may observe that the judgment passed in the case of Mr. Ashok Kumar is not binding upon this Court. The case filed by Mr. Ashok Kumar was decided on its own merits and this case has to be decided on the basis of facts and circumstances of the present case and CS 173/11/09 Page 16 of 19 the material available in the file. The suit property involved in the case filed by Mr. Ashok Kumar was entirely different from the property which is in dispute in this case. The plaintiff has himself stated in his replication that the suit filed by Mr. Ashok Kumar belongs to another plot while the present suit filed by him was with respect of another plot. In these circumstances, the judgment passed in the case of Mr. Ashok Kumar v. Union of India and Others has no bearing so far as the disposal of present case is concerned.
18. Vague allegations have been levelled by the plaintiff in para no. 7 of his suit. The plaintiff has failed to disclose as to when did he learn about the change of proposal for construction of nallah from agricultural land to the Phirni. He has further failed to disclose as to when the alignment of the nallah was changed and what was the earlier proposal. He has alleged that the defendant no. 2 in collusion with the owner of the agricultural land, which falls across the Phirni appears to have changed the alignment of nallah. The defendant no. 2 is a public servant. He does not have any illwill or grudge with the plaintiff. He has discharged his duties in accordance with law. The plaintiff has nowhere stated in his suit that the defendant no. 2 was having any sort of grudge or enmity with CS 173/11/09 Page 17 of 19 him. In these circumstances, this court is unable to appreciate the contention of plaintiff as to why the defendant no. 2 will collude with somebody else. The apprehension of collusion of defendant no. 2 with the owner of agricultural land appears to be misconceived and unfounded.
19. Admittedly, the construction of nallah is to be done on the public land i.e thoroughfare. The construction of drain on the public land is for the welfare of the public at large. The government has already spent a huge amount of money in completion/award of its project. More than 75% of work has already been completed. None of the residents of the projected site have objected to the construction of the nallah. The plaintiff has not been singled out in the construction of the proposed nallah. No prejudice or bias can be attributed to the acts of the defendants in the construction of the nallah. The project of the government which is for the welfare of the public at large cannot be permitted to halted at the instance of one or two persons. The plaintiff does not have any right, title or interest over the property where the nallah is to be constructed. He does not have any easementary right in the government land. He is as good a user of the Phirni (thoroughfare) as the other residents of the area. CS 173/11/09 Page 18 of 19 No right of plaintiff is being violated in construction of drain over the public land.
20. For the reasons discussed above, this court is of the considered view that the plaintiff has miserably failed to discharge the onus to prove the issue. The plaintiff has failed to make out a case for grant of permanent injunction in his favour. Accordingly, this issue is decided against the plaintiff.
RELIEF
21. In view of my findings on issue no. 3, the suit of the plaintiff is dismissed. Interim order passed on 26.03.2010 is hereby vacated. Parties are left to bear their own cost. Decree sheet be prepared. File be consigned to Record Room.
(Announced in open Court (RAJ KUMAR TRIPATHI)
on 15.12.2012) SENIOR CIVIL JUDGE (SOUTH)
SAKET COURTS, NEW DELHI.
CS 173/11/09 Page 19 of 19