Delhi District Court
Suit No.126/13 vs Delhi Development Authority on 2 January, 2015
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IN THE COURT OF SH. SHAILENDER MALIK,
LD. SCJ/RC/NW/ROHINI COURTS/DELHI
Suit No.126/13
Shamima Begum
W/o Mohd. Shoaib
R/o B466, Plot No.35A,
Village, Mubarakpur, Agar Nagar,
New Delhi. ......... Plaintiff
vs
Delhi Development Authority
Through Vice Chairman
INA Vikas Sadan, New Delhi. ......... Defendant
Date of Institution ..........31.01.2012
Date of reserving judgment ..........23.12.2014
Date of announcing judgment ..........02.01.2015
JUDGMENT
This is a suit of permanent injunction. As per the facts stated in the plaint, plaintiff claims to be the owner of plot bearing no. 35A, measuring 33 sq. yards in khasra no. 29/1 of village Mubarak Pur Dabas, Delhi, abadi known as Agar Nagar, B Block and claims to be in possession of the same since its purchase. Plaintiff stated to have raised construction over the said plot and has been residing in it since October 2006, plaintiff has also got installed electricity connection. It is stated that on 25.01.2012 officials of DDA along with mason and labors came and asked the plaintiff to vacate the premises as they are going to demolish and would take the area in their possession. Plaintiff stated that he is owner in possession of the above said property and DDA has no right to get the property vacated from him. It is stated that officials of DDA/defendant became arrogant and started adopting illegal means vacate the premises by throwing away the articles of plaintiff. They stated to have told the plaintiff that they are going to acquire the suit property. Whereas plaintiff claims to be the owner in possession of the property in question, hence the present suit was filed seeking decree of permanent injunction to restrain DDA/defendant or their officials etc. not to create any hindrance in the peaceful possession of the plaintiff in the suit property and also to restrain defendant/DDA from demolishing the structure over the suit property or also restrain it from 2 raising any fence in order to occupy the suit property.
DDA/defendant filed the WS taking the objection therein that suit is not maintainable as plaint does not disclose any cause of action as plaintiff is encroaching upon the Government land bearing khasra no. 29/1, Village Mubarak Pur Dabas. It is pleaded that plaintiff has no legal right, title or interest in the land in question as same has already been acquired vide award no. 16/0506/DC(NW) by the LAC and vacant possession of 4 bhiga 10 biswa has been handed over to defendant on 04.04.2006 vide notification under Section 22(1) of DDA Act and the remaining 6 biswa land has not been handed over to defendant by LAC and L & B. It is stated that plaintiff has no right in respect of Government Land which has already been acquired as per the Land Acquisition Act as such Civil Court has not jurisdiction to entertain the suit. Land Acquisition Act is a self contained code containing detailed procedure for challenging the various actions under the said Act. It is stated that even otherwise the suit is not maintainable as per the provisions of Specific Relief Act. While denying the case of the plaintiff on merits it has been reiterated that land in question has already been acquired and as per the revenue record the khasra no. 29/1 of Village Mubarak Pur Dabas stood acquired, if the notification of Section 4 of LA Act dated 21.03.2003 and thereafter Land and Building Department issued a notification dated 19.03.2004 and award was passed. In respect of above said land and land measuring 4 bhiga 10 biswa has already been handed over to DDA vide notification under Section 22 of DD Act and and leaving the balance land of 6 biswa which has not been handed over to DDA.
Plaintiff filed the replication wherein he reiterated his case and controverted the case of the DDA.
Upon completing the pleadings following issues were being framed by ld. Predecessor of this court on 17.10.2012:
(i) Whether the plaintiff is in possession of the suit property and that her possession is lawful? OPP
(ii) Whether the plaintiff is entitled to relief of injunction as claimed?OPP
(iii) Relief On behalf of plaintiff one witness plaintiff himself PW1 Shamina Begum was examined however no evidence was lead on behalf of DDA.
I have heard ld. Counsels for the parties and my findings on the above mentioned issue are:
3Issue no. 1 (Whether the plaintiff is in possession of the suit property and that her possession is lawful? OPP) Onus of proving this issues was on the plaintiff and in order to substantiate this issue plaintiff in her evidence by way of affidavit has testified that she is owner of property in question consisting in khasra no. 29/1, Village Mubarak Pur Dabas after purchasing the same in October 2006. Plaintiff has relied upon documents like site plan as Ex.PW1/1, GPA dated 30.10.2006 as Ex.PW1/2, agreement to sell, affidavit , receipts are Ex. PW1/3 to Ex.
PW1/10. Plaintiff has also relied upon photocopy of electricity bill and photocopy of ration card which is Mark A and B respectively. PW1 was duly cross examined.
Having appreciated the evidence of PW1 as come on the record, as discussed above plaintiff is claiming to be owner in possession of the above said suit property however from the testimony of PW1, I find that ownership of plaintiff as well as fact of being in possession could not be proved as per law. In order to establish that suit property was purchased by plaintiff on 30.10.2006, plaintiff has relief upon documents Ex.PW1/2 to Ex.PW1/8 but none of the documents as relied upon by plaintiff is registered. It is well established proposition of law that sale of an immovable property in terms of Section 54 of TP Act can be affected only by a registered sale deed when the property is worth rupees more than 100. Registration of sale deed is mandatory as per the provisions of Section 18 of Indian Registration Act. Evidently, in this case no sale deed has been executed or registered. Documents as relied upon by the plaintiff therefore, do not establish the factom of sale in favour of the plaintiff specifically in view of observations of Apex Couret in Suraj Lamps Industries Pvt. Ltd. Vs State of Haryana 2012 SCC 656.
Now, looking into the question of possession, plaintiff thought has claimed in the plaint as well as in her evidence that she has been in possession of property in question since Oct 2006 which she had allegedly purchased it. Plaintiff also claims to have raise the construction over it and has also got installed electricity connection but documents like electricity bill, ration card have not been proved as per law. In the absence of any document to establish her possession in the property I find that plaintiff has failed to establish her possession over the suit property.
It is important to note here that as per the WS of DDA, suit property in is situated on the govt land having already acquired vide award no. 16/0506/DC(NW). It is also mentioned in the WS of DDA that process of acquisition was started by notification u/s 4 of LA Act vide 4 notification dated 21.03.2003. Evidently, in the facts of the case plaintiff stated to have purchased the property in question subsequent to the notification u/s 4 of LA Act which has been repeatedly held by Apex Court that purchase of property subsequent upon to the initiate process of acquisition is bad in law. Recently in K.N. Aswathnarayana Sethi vs State of Karnataka AIR 2014 SC 279, has held in para 10 and 11 which his produced as under: "......The law on the issue can be summarized to the effect that a person who purchases land subsequent to the issuance of a Section 4 notification with respect to it, is not competent to challenge the validity of the acquisition proceedings on any ground whatsoever, for the reasons that the sale deed executed in his favour does not confer upon him, any title and at the most he can claim compensation on the basis of his vendor's title....".
".......In order to meet the menace of sale of land after initiation of acquisition proceedings, various States enacted the Acts and making such transfers as punishable, e.g. The Delhi Lands (Restriction on Transfers) Act 1972 made the sales permissible only after grant of permission for transfer by the authority prescribed therein. In absence of such permission if the sale is made in contravention of the statutory provisions it is a punishable offence with imprisonment for a term which may extend to 3 years or with fine or with both...."
".......Therefore, we do not see any cogent reason to accept any plea taken by the petitioners that they could purchase the suit land even subsequent to Section 4 notification...".
Thus, in view of above said reasons I find that plaintiff has failed to establish her ownership of possession or has also failed to establish any legal right over it. Accordingly present issue stands decided against plaintiff.
Issue no. 2 (Whether the plaintiff is entitled to relief of injunction as claimed?OPP) In view of my findings on issue no. 1, this issue can straightway be decided against plaintiff. However, taking note of the submissions made by ld. Counsel for the plaintiff, when it was argued that Government is making up a policy for regularizing the unauthorized colonies moreover, ld. counsel while relying upon notification with regard to "the National Capital Territory of Delhi Laws (Special Provisions) Act 2011, has submitted that above said act has been further amended for giving effect to unauthorized construction to be saved till 2017. Having given thoughtful consideration to such submissions made by ld. Counsel for the plaintiff and having complete understanding of the plight of the plaintiff, this court however, has to decide the suit on the basis of legal propositions. The policy of Government for regularizing the unauthorized colonies cannot take place of law until notified and such notification is relevant in deciding the present suit. It is yet to be seen whether the colony where the suit property is situated is to be regularized or not by the Government. It would be 5 highly premature to decide the present suit on the basis of policies of Government which are yet to be notified. Similarly, the provisions of National Capital Territory of Delhi Laws (Special Provisions) Act, 2011 which is stated to have been amended, can also be of no help for plaintiff so far as present suit is concerned because that Act deals with the unauthorized construction and protect the same from demolition. That Act do not legalize the unauthorized construction, it simply protect for demolition action by the MCD. Whereas in the present case issue under consideration is whether plaintiff has any legal right to enforce in respect of land which has already been acquired.
It is further argued by ld. Counsel for plaintiff that DDA in its WS has admitted that physical possession of only 4 bhiga 10 biswa of land has been handed over leaving the balance land of about 6 biswa, the possession of which has not been handed over to DDA. In such situation when it is not clear as to whether the suit property falls within 4 bhiga 10 biswa or within the land the possession of which has not been handed over, plaintiff has a right. It is argued when there is a notification of Hon'ble LG with regard to land the possession of which has not been handed over despite being acquired, such land is considered to be "private land".
Having given thoughtful consideration to this submission of ld. Counsel for plaintiff, since, the suit has been filed by plaintiff seeking relief of injunction, onus was on the plaintiff to establish by preponderance of probability that he is entitled for injunction order for the reason that the suit property does not fall in the area of land, the possession of which has already been handed over to DDA by a notification passed under Section 22(1) of DD Act. It was for plaintiff to establish that suit property is situated in a "private land" as per the notification of Hon'ble LG. It be noted that as per the notification of Hon'ble LG a land can be declared to be private only when the possession of which cannot be handed over because of construction over it despite giving notice of vacating it. In the present case in the absence of any evidence first of all showing that suit property is situated in the portion of land the possession of which has not been handed over, second of all, plaintiff has never been served with any notice and also with the fact that plaintiff has any legal right in respect of property in question. In case of failure of plaintiff to establish these facts I find that in the absence of any proof or evidence plaintiff has failed to establish any legal right in respect of land in question. Therefore, the issue stands decided against the plaintiff and in favor of defendant/DDA.
6Relief In view of my findings, issue no. 1 and 2 stands decided against plaintiff and in favor of defendant.
Consequently, suit of the plaintiff stands dismissed. File be consigned to record room.
Announced in the open court (SH. SHAILENDER MALIK)
On 02.01.2015 (SCJRC, ROHINI COURTS, DELHI)
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Suit No.126/13/12
02.01.2015
Pr. Ld. Counsel for the plaintiff with plaintiff.
None for defendant/DDA.
Vide my separate judgment of even date, suit of the plaintiff stands dismissed. File be consigned to record room.
(SH. SHAILENDER MALIK) (SCJRC, N/W ROHINI COURTS, DELHI) 02.01.2015