Delhi District Court
Shree Navyuvak Ramlila Committee ... vs Sh. Rishi Bansal on 22 December, 2014
IN THE COURT OF NAVEEN GUPTA, ADDITIONAL SENIOR CIVIL
JUDGE-CUM-JUDGE, SMALL CAUSES COURT-CUM-GUARDIAN
JUDGE, NORTH -WEST DISTRICT, ROHINI COURTS, DELHI.
Suit No. 138/09/97
1. Shree Navyuvak Ramlila Committee (Regd.)
Through its President,
Sh. Purshotam Aggarwal,
1-Ram Bhawan, Gali No. 3,
Sri Nagar, Shakur Basti,
Delhi -110034.
2. Sh. Pankaj Kapoor,
S/o Sh. N. N. Kapoor,
R/o WZ-165, Sri Nagar,
Shakur Basti, Delhi-110034. ....Plaintiffs
Versus
1. Sh. Rishi Bansal,
S/o Sh. Daya Ram Bansal,
R/o 350, Sri Nagar, Shakur Basti,
Delhi-110034.
2. Municipal Corporation of Delhi,
Through its Commissioner,
Town Hall, Chandni Chowk,
Delhi. .... Defendants
Date of Institution: 05.07.1997
Date on which judgment was reserved: 01.12.2014
Date of pronouncing judgment: 22.12.2014
JUDGMENT
1. The plaintiffs have filed the present suit praying for decree of permanent injunction restraining the defendants from demolition of the temple or the manch (hereinafter referred as 'suit property') situated in khasra no. 29/21 Suit No. 138/09/07 Shree Navyuvak Ramlila Committee (Regd.) etc. v. Rishi Bansal etc. 1/26 (3-19) and 29/22 (1-2) in the revenue estate of village Shakurpur, Delhi and from causing any interference in any manner in the peaceful use and enjoyment of worship and other religious ceremonies as being performed and carried out at the property in question.
2. Brief facts of the case of the plaintiffs are that plaintiff no.1 is a society, registered under the Societies Registration Act, which had been established for the purpose of looking after the affairs of the impugned temple. The said temple had been constructed long back by the residents of the area, after spending huge amount, over the land belonging to Gaon Sabha. There had been no objection in such construction as the land initially belonged to Gaon Sabha. Further, besides the said temple, a manch was also constructed, for ramlila and other religious purposes, by spending huge amount. Further, the persons and plaintiff society have fundamental rights to worship in the said temple and manage its (temple) affairs, respectively, under Articles 25 and 26, as guaranteed under the Constitution of India. Further, on 04.07.1997, officials of the Municipal Corporation of Delhi (MCD)/Defendant no. 2 came and stated that they were going to demolish the temple on 05.07.1997. They had also informed that defendant no. 1 had approached them for this purpose. It has been further stated that defendants had no concern with the land as the same initially belonged to the Gaon Sabha. Furthermore, in case of demolition, the right of notice and right of hearing should have been provided. Hence, the plaintiffs have approached the Court through the present suit seeking protection from demolition of the suit property etc.
3. After filing of the present suit, summons of the suit were sent to the defendants. But, defendant no. 1 did not appear after his appearance before Suit No. 138/09/07 Shree Navyuvak Ramlila Committee (Regd.) etc. v. Rishi Bansal etc. 2/26 the Court on 08.07.1997. Accordingly, he was proceeded ex-parte vide order dated 10.09.1997.
4. In the written statement filed on behalf of MCD/Defendant no. 2 (hereinafter referred as 'D-2'), it has been stated that the present suit was barred under Sections 477 and 478 of the Delhi Municipal Corporation Act, 1957 (DMC Act). Further, the suit was not maintainable in view of Sections 321 and 322 of the DMC Act as the plaintiffs have unauthorizedly encroached public land/park, which was liable to be removed as per the provisions of the said Act without service of any notice. Further, the plaintiffs had not come to the Court with clean hands, hence the suit was not maintainable in view of Sections 41 (h) and 41 (i) of the Specific Relief Act as they (plaintiffs) were unauthorized occupants of the suit site without any permission/sanction of D-2. Further, the plaintiffs had no locus standi to file the present suit as they had no right, title or interest in the suit property. It has been further submitted that no temple whatsoever existed in the impugned park [which includes the land over which suit property was allegedly situated]. Hence, the question of construction of any temple by the villagers did not arise. It was denied that the suit land belonged to the Gaon Sabha as claimed by the plaintiffs. It has been further submitted that at request of Resident Welfare Association, the park had already been divided into two portions: half portion of the park had been developed as ornamental park and rest portion was being used for marriages, ramlila and other like functions by the residents of the area. A small ramlila stage with temporary structure also existed in the park. Further, there was a small temporary room in one corner of the park just behind the ramlila stage and the room was being used as chowkidar room. The chowkidar was residing there. Further, on the night of 17.06.1997, some ramlila people, who used to hold ramlila in Suit No. 138/09/07 Shree Navyuvak Ramlila Committee (Regd.) etc. v. Rishi Bansal etc. 3/26 the park every year, came to the park and entered into room forcibly with some idols and put religious board in the park, after breaking boundary wall and grills etc. of the park. The matter was reported to the police and an FIR was lodged. The defendant no. 2 has further denied all other allegations/claims made by the plaintiffs in their plaint.
5. On the basis of the pleadings of the parties, following issues were framed by the Court vide order dated 21.02.2007:
1. Whether the suit of the plaintiff is not maintainable under the provisions of Section 321 and 322 of D.M.C. Act? OPD
2. Whether the suit of the plaintiff is not maintainable under the provisions of Section 41 (h) and 41 (i) of the Specific Relief Act? OPD
3. Whether the plaintiff has no locus standi to file the present suit? OPD
4. Whether the plaintiff is entitled for a decree of permanent injunction as prayed in the plaint? OPP
5. Relief.
Initially, issues no. 1, 2 and 3 were treated as preliminary issues. But, vide order dated 24.08.2009, the Court observed that the issue whether the plaintiff had no locus standi to file this case or not could not be decided on the basis of arguments and it required evidence. Further, Section 321 and 322 of the DMC Act, on the face of it, did not bar civil suit against an action or inaction of the defendant Corporation. Further, the counsel for defendant had not been able to draw the attention of the Court as to how Section 41 (h) and 41 (i) of the Specific Relief Act were attracted to the facts of this case. Hence, with these observations, the Court held that it would be desirable if Suit No. 138/09/07 Shree Navyuvak Ramlila Committee (Regd.) etc. v. Rishi Bansal etc. 4/26 the preliminary issues were decided amongst all the other remaining issues. Accordingly, matter was fixed for the plaintiff's evidence.
6. To prove their claim, the plaintiffs examined 7 witnesses. It is pertinent to note that initially, the plaintiffs had filed evidence affidavits of 8 witnesses (besides the testimony of official witnesses PW-4 to PW-7), but an application was moved on behalf of D-2 under Order 18 CPC read with Section 134 of the Evidence Act praying for dropping 6 witnesses out of those 8 witnesses from being examined to save precious time of the Court. Thereafter, vide order dated 05.06.2014, the Court held that PW-1 had already been examined and discharged and the plaintiff was allowed to examine not more than 2 witnesses of its choice out of remaining 7 witnesses. Further, vide order dated 23.07.2014, the Court dismissed the application moved on behalf of the plaintiffs for review of the above said order. Accordingly, the plaintiffs examined 3 witnesses (including PW-1 who had already been examined prior to the order dated 05.06.2014) out of the said 8 witnesses.
7. PW-1 is Sh. Purshotam Aggarwal. He was stated to be President of the plaintiff society at the time of filing of the present suit. He submitted almost on the similar lines as stated in the plaint. He tendered site plan as Ex. PW-1/1, photographs of the impugned site as Mark A-2, copy of letter dated 02.07.1990 written to the Registrar of Societies as Mark A-3, memorandum of association of the plaintiff society as Mark A-4, letters/receipts granting permission to the plaintiff for holding ramlila/use of park as Mark A-5 to A-18.
Suit No. 138/09/07 Shree Navyuvak Ramlila Committee (Regd.) etc. v. Rishi Bansal etc. 5/26
8. PW-2 is Sh. Pankaj Kapoor/plaintiff no. 2 and PW-3 is Sh. Ravi Gupta, who are stated to be members of the plaintiff society. They, too, submitted on the similar lines as stated in the plaint. PW-4 is Sh. Raj Bahadur. He tendered registration certificate of the plaintiff society as Ex. PW-4/1, application moved by the society for registration as Ex. PW-4/2, memorandum of association of the plaintiff society as Ex. PW-4/3 and rules and regulations of the plaintiff society as Ex. PW-4/4. PW-5 is Sh. Prem Chand and PW-6 is Sh. Asha Ram, who stated that the summoned record was not available with them/concerned department. PW-7 is Sh. Jitender Kumar. He stated that permission for holding ramlila had been given to the plaintiff society in the year 2013 with effect from 04.10.2013 to 13.10.2013. He tendered receipt to this effect as Ex. PW-7/1. Thereafter, the plaintiffs closed their evidence.
9. In its defence evidence, D-2 examined one witness. D2W-1 is Sh. Jitender Kumar, Assistant Director, Horticulture. He has submitted almost on the similar lines as stated in the written statement. He further submitted that the impugned khasra numbers 29/21, 22 in the revenue estate of village Shakurpur had already been acquired vide award no. 1951 in the year 1967. He tendered certified copy of the award and kabja karwai from the revenue department as Ex. D2W-1/A. He further tendered photograph of the suit property as Ex. D2W-1/B and rough site plan as Mark A. He further submitted that encroachment removal action had been fixed on 09.07.1997, 18.07.1997, 21.07.1997, 23.07.1997 and 30.07.1997, but due to non- availability of police force and stay from the Court, the said action could not be implemented. Thereafter, defence evidence of D-2 was closed.
10.I have heard the arguments from respective counsels of plaintiffs and defendant no. 2. I have perused the record.
Suit No. 138/09/07 Shree Navyuvak Ramlila Committee (Regd.) etc. v. Rishi Bansal etc. 6/26
11.Issue-wise findings are as follows:
Issue no. 4 The issue no. 4 has been taken up first as findings on this issue would be applicable on other issues as well. The present case has been filed in the names of Shree Navyuvak Ramlila Committee (Regd.) through its President and Sh. Pankaj Kapoor. Counsel for defendant no. 2 has argued that mandate of Section 6 of the Societies Registration Act, 1860 has not been followed while filing the present suit. Hence, the same is not maintainable.
12. Section 6 of the Societies Registration Act, 1860 provides that: 'Every society registered under this Act may sue or be sued in the name of President, Chairman, or Principal Secretaries, or trustees, as shall be determined by the rules and regulations of the society and, in default of such determination, in the name of such person as shall be appointed by the governing body for the occasion'. It is not disputed that Shree Navyuvak Ramlila Committee is a registered society having certificate of registration dated 25.10.1991 Ex. PW-4/1. The rules and regulations of the plaintiff society Ex. PW-4/4 provides through Rule 19 that society may sue or be sued in the name of President. Hence, Shree Navyuvak Ramlila Committee could have filed the present suit in the name of its President only. Although the present suit had been filed by the society through its President, but during his cross-examination, PW-1, who is stated to be the President of the society at the time of filing of the present suit, deposed that he had not filed on record any minutes of proceedings wherein he was elected as the President when the suit was filed by him in the capacity of the President. Further, during entire plaintiff's evidence, the plaintiff society did not file any document to show that Sh. Purshotam Aggarwal was its President at the time of filing of the present suit. Further, any resolution passed by Suit No. 138/09/07 Shree Navyuvak Ramlila Committee (Regd.) etc. v. Rishi Bansal etc. 7/26 governing body of the plaintiff society on this aspect was also not filed by the plaintiff.
13.Furthermore, so far as competency of Sh. Pankaj Kapoor as one of the plaintiffs in filing the present suit is concerned. He, during his examination as PW-2, admitted that the fact that he was General Secretary in 1997 had not been mentioned in the plaint. He further deposed that he could not show any document at present showing that he was the General Secretary of the society. Even if, had plaintiff no. 2 been able to prove that he was General Secretary of the plaintiff society at the time of filing of the present suit, then too, he was not one of the persons as prescribed by Section 6 of the said Act vis-a-vis Rule 19 of the rules and regulations of the society. Even in the details of members of governing body as reflected in the memorandum of association of the plaintiff society Ex. PW-4/3, Sh. Purshotam Aggarwal had been shown as Secretary and name of Sh. Pankaj Kapoor was not mentioned at all.
14. The Hon'ble Delhi High Court in Kanta Kochhar v. Sir Ganga Ram Trust Society, in CM (M) no. 521/2009 decided on 21.10.2009, has held that it is enough if the society sues through any of the persons mentioned in Section 6. In the present case, although the plaintiff society has filed the present suit through the person mentioned in Section 6. But, it has failed to prove that Sh. Purshotam Aggarwal was, in fact, President of the society at the time of filing of the present suit. However, the Hon'ble Delhi High Court, in the above said case, has further observed that irregularity in institution of proceedings is capable of being ratified. Further, the Hon'ble Apex Court in United Bank of India v. Naresh Kumar, AIR 1997 SC 3, has held that:
Suit No. 138/09/07 Shree Navyuvak Ramlila Committee (Regd.) etc. v. Rishi Bansal etc. 8/26
15. [A] person may be expressly authorised to sign the pleadings on behalf of the company, for example by the Board of Directors passing a resolution to that effect or by a power of attorney being executed in favour of any individual. In absence thereof and in cases where pleadings have been signed by one of it's officers a Corporation can ratify the said action of it's officer in signing the pleadings. Such ratification can be express or implied. The Court can, on the basis of the evidence on record, and after taking all the circumstances of the case, specially with regard to the conduct of the trial, come to the conclusion that the corporation had ratified the act of signing of the pleading by it's officer.
The Court shall examine whether there was any express or implied ratification of the act of signing of the pleading by Sh. Purshotam Aggarwal. It is pertinent to note that initially, the plaintiffs had filed evidence of as much as 7 members of the society alongwith evidence affidavit of Sh. Purshotam Aggarwal at the time of plaintiff's evidence. Although such filing of evidence affidavits does not prove that Sh. Purshotam Aggarwal was the President of the society at the time of filing of present suit or any time thereafter, yet the same provides an implied ratification to the effect that the plaintiff society wished to pursue the present case with the pleadings signed by him. Accordingly, compliance of provision provided under Section 6 of the Society Registration Act, 1860 in filing the present suit by plaintiff no. 1 /society stands proved. Reliance has also been placed upon Sonar Bangla Bank Ltd. v. Calcutta Engineering, AIR 1960 Cal. 409.
15.The plaintiffs have prayed for decree of permanent injunction seeking protection against demolition of the suit property. Firstly, Section 38 of the Specific Relief Act, 1963 provides for the circumstances wherein perpetual injunction can be granted. A perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication. Further, when the defendant invades or Suit No. 138/09/07 Shree Navyuvak Ramlila Committee (Regd.) etc. v. Rishi Bansal etc. 9/26 threatens to invade the plaintiff's right to, or enjoyment of, property, the Court may grant a perpetual injunction. From reading of the above said provision, it is evident that a perpetual injunction can be granted by a decree whereby the defendant is perpetually restrained from the assertion of a right or from the commission of an act which would be contrary to the rights of plaintiff. Except insofar as the above contingencies, no perpetual injunction can be granted against the defendant under the Specific Relief Act, 1963. Reliance is placed upon the precedent laid down by the Hon'ble Punjab and Haryana High Court in Sohan Singh v. Jhaman 1986 (1) PLR 326. Hence, for succeeding in getting perpetual injunction in their favour, the plaintiffs would have to show breach of an obligation existing in their favour or existence of any right over the suit property which had been allegedly invaded by the defendants.
16.It is case of the plaintiffs that the temple had been constructed long back by the villagers over the land belonging to Gaon Sabha. Further, there was no temple in the vicinity as well. The society had been established for the purpose of looking after the affairs of the temple. On the contrary, the stand of D-2 is that there was existence of a temporary manch and a small temporary room in one corner of the park and the said room was encroached upon by the members of the plaintiff society by putting some idols in it on 17.06.1997. Firstly, the plaintiff has failed to provide the specific date, month or year as to when the impugned temple and manch had been constructed by the villagers. Moreover, no villager, priest of the temple or any worshiper visiting it (temple) other than the members of the plaintiff society was examined by the plaintiffs so as to substantiate the version that the temple and the manch had been in existence since long back. Even the plaintiff society had been registered only on 25.10.1991 as per certificate of Suit No. 138/09/07 Shree Navyuvak Ramlila Committee (Regd.) etc. v. Rishi Bansal etc. 10/26 registration Ex. PW-4/1. Furthermore, PW-1 during his cross-examination admitted that he had not placed on record any document regarding expenses incurred or from where the funds for expenses had been arranged. Similar was the reply of PW-2 who admitted that he had not filed any document on record to show that the temple was constructed after spending money by the plaintiff. Hence, neither any person who had got the temple constructed was examined nor any document showing purchase of the material for construction of the suit property was filed by the plaintiffs to substantiate that the temple and the manch had been constructed at the impugned site by the villagers after spending huge amount. Furthermore, PW-1 and PW-3 admitted that there was one another temple just across the road at a distance of about 200 meters from the suit property. The said admission falsifies the contention that there was no temple in the vicinity.
17.Further, counsel for D-2 has argued that in the award Ex. D2W-1/A passed on 01.03.1967 for acquisition of land comprising the impugned khasra no. 29/21 and 29/22, wherein the suit property is situated, no structure at all had been shown existing over the impugned khasra numbers and further, in the kabja karwai too, the impugned land/khasra numbers had been shown as vacant land. After perusal of the above said documents, the Court is in agreement with the submission made by counsel for D-2. Further, although permission/receipts have been granted/issued in favour of Navyuvak Ramlila Committee by D-2 for conducting ramlila in the impugned park from the year 1982 onwards through mark A-5 to mark A-18; however, those documents do not prove existence of suit property at the impugned site. Furthermore, it has been claimed by the plaintiff that the society had been established for the purpose of looking after the affairs of the temple. Surprisingly, although the society had been established for the purpose of Suit No. 138/09/07 Shree Navyuvak Ramlila Committee (Regd.) etc. v. Rishi Bansal etc. 11/26 looking after the affairs of the temple only, but the aims and objects of the society mentioned in its memorandum of association Ex. PW-4/3 do not contain this aspect specifically. Rather aims and objects of the society have been shown as to hold cultural activities and religious festivals. Had the suit property been existing at the time of registration of the plaintiff society in the year 1991 and the society been established for managing the affairs of the temple, its memorandum of association must have reflected the said aspect in the aims and objects of the plaintiff society. Furthermore, the plea of D-2 in respect of 'temporary' nature of room existing at the impugned site is corroborated with one of the photographs mark A-2 filed by the plaintiffs, which shows that there is no gate at the entrance of the said room besides the wall adjacent to which the idols have been placed.
18.It is admitted case of the plaintiffs that suit property had been constructed over the land belonging to Gaon Sabha and in a way, it belonged to the residents of area. Firstly, it has already been observed that no villager who had been member of the concerned Gaon Sabha in terms of Section 151 of the Delhi Land Reforms Act, 1954 was examined by the plaintiffs. Further, it is pertinent to note that PW-1, PW-2 and PW-3 have not claimed themselves to be members of the said Gaon Sabha. Further, PW-1 during his cross-examination deposed that he did not know if any Sarpanch or Gram Pradhan had passed any resolution with regard to the temple. PW-2 admitted that no Sarpanch or Gram Pradhan had passed any resolution with regard to the construction of the said temple. PW-3, too, admitted the same suggestion as given to PW-2. As per Section 151 of the Delhi Land Reforms Act, 1954, every Gaon Sabha shall have an executive body to be known as the Gaon Panchayat. Certain duties have been provided for the Gaon Panchayat in the said Act. But, the plaintiffs have failed to produce any document whereby Suit No. 138/09/07 Shree Navyuvak Ramlila Committee (Regd.) etc. v. Rishi Bansal etc. 12/26 the Gaon Sabha or Gaon Panchayat had authorized the villagers or any other person to construct the temple or the manch at the impugned land, admittedly, belonging to the Gram Sabha. No evidence at all has been led by the plaintiffs that the alleged suit property was constructed even with the acquiescence of Gaon Sabha. Furthermore, the argument that since the land belonged to Gaon Sabha, then in a way, it belonged to the residents of the area is not tenable. The land belonging to the Gaon Sabha can not be used by any person or group of persons in the manner he/they wish/es. Above all, surprisingly, when it was case of the plaintiff that the land belonged to Gaon Sabha, then it has not been explained as to why the plaintiffs had neither impleaded Gaon Sabha as one of the parties nor examined any official/member of the concerned Gaon Sabha to substantiate their version on this aspect.
19.Accordingly, the plaintiffs have not been able to prove as to when specifically the alleged temple and manch were constructed at the impugned site and further, the suit property was, in fact, in existence in the manner claimed by them. Counsel for plaintiff has argued that during cross- examination of PW-1, some questions/suggestions had been put to him on behalf of D-2 which lead to infer that D-2 has admitted existence of temple and manch at the impugned site. Such as, PW-1 was questioned as to whether he had placed on record any document to prove his ownership of the temple. Further, a suggestion was put to him that temple was situated inside the park. Counsel for plaintiff has further argued that the witness examined in its defence by D-2 i.e. D2W-1 stated that site plan Ex. PW-1/1 was correct as per site. But, it is pertinent to note that the site plan Ex. PW-1/1 shows the existence of temple and manch in the area shown red. In this manner, D-2 has admitted the existence of temple and manch.
Suit No. 138/09/07 Shree Navyuvak Ramlila Committee (Regd.) etc. v. Rishi Bansal etc. 13/26 Furthermore, D-2 has not placed copy of FIR which was allegedly registered on 17.06.1997 in respect of the alleged encroachment into the temporary room existing at the impugned site. Counsel for D-2 has argued that a categorical suggestion had been put to PW-1 that there was no temple or they (plaintiffs) had encroached upon the government land and constructed a temple by placing idols in the room meant for chowkidar of the park.
20.From perusal of record and testimony of witnesses of both the parties, it can be made out that there was no admission on behalf of D-2 in respect of the existence of temple and manch at the impugned site, in the manner claimed by the plaintiffs. Rather it is case of D-2 that the temporary manch and temporary room existed at the impugned site for the purpose of holding ramlila and residence of chowkidar respectively. Furthermore, if the testimonies of witnesses are to be read in the manner suggested by plaintiffs, then it is worth noting that during cross-examination of D2W-1, following suggestions were put to him: that MCD had concern with the portion shown in red colour in the site plan Ex. PW-1/1; the plaintiff had encroached upon the government land; the plaintiff was not in possession of suit property; no temple was existed at the suit property and plaintiffs were habitual encroacher/land grabbers of the Government land on behest of temple. The above said suggestions are contrary to the stand of plaintiffs. If the inference is drawn from above said suggestions put to D2W-1, in that eventuality, the present case of the plaintiffs should be dismissed without looking into other aspects.
21.Although the plaintiffs have claimed that the land over which suit property is situated belonged to Gaon Sabha. But, in its written statement, D-2 had Suit No. 138/09/07 Shree Navyuvak Ramlila Committee (Regd.) etc. v. Rishi Bansal etc. 14/26 denied that land belonged to Gaon Sabha. During trial of the case, D-2 produced evidence to substantiate the above said denial. During cross- examination of PW-1, a suggestion was put that initially, the land belonged to Gram Sabha and the same had been acquired by the Government vide award no. 1951 in the year 1966-67 and the possession had been taken by the Government on 28.03.1967. Similar suggestions were put to PW-2 as well as PW-3. During cross-examination of PW-3, he was confronted with kabja karwai, which was marked as DW-1/A. Further, D2W-1 tendered certified copies of the award passed for acquisition of khasra numbers 29/21 (3-19) and 29/22 (1-2) belonging to Gaon Sabha and of kabja karwai dated 28.03.1967, wherein it has been stated that the above khasra numbers were found vacant and taken possession of. The said award and kabja karwai have been exhibited as Ex. D2W-1/A. The plaintiff has not objected to the Hindi and English translation of actual kabja karwai recorded in Urdu. The said certified copies of the above said documents shall be presumed to be genuine by combined effect of Sections 74, 76 and 79 of the Indian Evidence Act, 1872.
22. Furthermore, the stand of D-2 is further strengthened by the letter of SDM, Saraswati Vihar dated 26.05.2011 available on record, wherein it has been stated that as per record available in the office, khasra no. 29/21, 22 in the revenue estate of village Shakurpur had been acquired vide award no. 1952 in the year 1967 and the possession of land was with the government. The said letter has been written by SDM, Saraswati Vihar in his official capacity. Accordingly, presumption can be drawn in respect of genuineness of the report by virtue of provision provided under Section 114 of the Indian Evidence Act.
Suit No. 138/09/07 Shree Navyuvak Ramlila Committee (Regd.) etc. v. Rishi Bansal etc. 15/26
23.Counsel for the plaintiff has argued that D2W-1 has admitted that MCD had not got demarcation at the site to find whether there was encroachment over the park or MCD land. But, it is pertinent to note that by effect of prayer in the amended plaint itself, the case of the plaintiff is that the impugned temple and manch are situated in khasra no. 29/21 and 29/22. Hence, there was no requirement for D-2 to get demarcation at the site so as to show that the impugned temple and manch were situated in the khasra no. 29/21 and 29/22. Furthermore, D2W-1 had voluntarily stated that MCD had written a letter to SDM, Saraswati Vihar who had informed that the whole park was situated in khasra no. 29/21 and 29/22. But, the plaintiff has not produced any evidence to controvert the above said version of D2W-1.
24.Counsel for the plaintiff has argued that D-2 had no concern with the land as shown red in the site plan Ex. PW-1/1 and it had only developed the portion shown as Ramlila maidan and park in the site plan. But, it is pertinent to note that its (plaintiff's) own witness, PW-2, admitted during his cross- examination that the said park in which the temple was situated was called Tikona Park. He further admitted that they organized ramlila in the said park. Hence, this is clear admission on part of the plaintiffs themselves that the land over which the alleged temple and manch was situated was part of the park developed by D-2.
25. Counsel for plaintiff has argued that in its written statement, D-2 has stated that area of the park is 0.75 acre; while the total area of khasra nos. 29/21 and 29/22 which had been allegedly acquired by the Government amounts to five bigha and one biswa. It is pertinent to note that nowhere D-2 has taken a stand that the entire land of above said khasra numbers was Suit No. 138/09/07 Shree Navyuvak Ramlila Committee (Regd.) etc. v. Rishi Bansal etc. 16/26 converted into the impugned park. Hence, the argument on this aspect does not create any doubt in favour of plaintiffs.
26.Above all, a suggestion was put to D2W-1 that a portion of khasra no. 29/21 and 22 had been left from acquisition due to construction over it in the shape of temple and manch from the beginning. Further, the portion shown in red colour in site plan Ex. PW-1/1 was the same portion which had been left from acquisition by the Government. The said suggestions lead to infer that the plaintiffs admitted the fact of acquisition of land comprising of khasra number 29/21 and 22. But, the plaintiffs have failed to produce any evidence to substantiate their version that portion over which temple and manch existed had been left from acquisition. Accordingly, the claim of D-2, that khasra no. 29/21 and 22 which includes land over which alleged temple and manch existed had been acquired by the Government and possession of the land had been taken over by it, stands proved.
27.Counsel for plaintiff has argued that D-2 did not clarify as to who had constructed the said temporary manch and room as claimed by it (D-2). It is worth noting that the stand of D-2 is that the temporary room had been encroached upon by putting some idols in it on 17.06.1997. It is pertinent to note that primarily, it was duty of the plaintiffs to prove the existence of temple and manch at the impugned site. But, they have miserably failed to do so in view of the observations made in preceding paragraphs. The Court can not be oblivious of that fact even if D-2 had not been able to prove as to when and by whom the temporary manch and room were got constructed over the impugned site; but, the fact remains that the land over which alleged manch and room existed is the public/government land. Further, even if, for the sake of argument, it is accepted that any illegality, by way of Suit No. 138/09/07 Shree Navyuvak Ramlila Committee (Regd.) etc. v. Rishi Bansal etc. 17/26 construction of room and manch over public land, had been allowed to be committed at any time, then too, the same should not have been allowed to remain for perpetuity by granting injunction restraining D-2 from demolishing the said unauthorized construction.
28. Further, the plaintiffs have pleaded in their plaint itself that the land belongs to Gaon Sabha, which is in any manner a public land. Even if, for the sake of arguments, the plea of the plaintiffs that the temple and manch existed at the impugned site since long back is accepted, the plaintiffs have failed to raise any bonafide dispute about their right to remain in occupation over the suit land. The Hon'ble Allahabad High Court in Janak Singh Yadav v. State of U.P., 2006 (1) RCR (Civil) 40, has held that:
15. But there is complete fallacy in the submissions made by Shri Asthana as there is an embargo in law to take recourse to summary proceedings for eviction of an encroacher, only when the person in possession raises "bona fide dispute about his right to remain in occupation over the land" i.e. claims the right, title and interest in land in dispute. (Vide Government of Andhra Pradesh v. Thummala Krishna Rao, AIR 1982 SC 1081; State of Rajasthan v. Padmavati Devi, 1995 Supp (2) SCC 290 and Rame Gowda v. M. Varadappa Naidu, 2004(1) RCR(Civil) 519 (SC) : (2004)1 SCC 769 : (AIR 2004 SC 4609).
The Hon'ble Allahabad High Court has further observed that:
37.In Ram Ji Lal v. Balwant Singh, 1967 All LJ 410 this Court held that the Court cannot recognise a claim or cause of action based on a turpitude. Therefore, a person approaching the Court has to satisfy that he is in lawful possession of the premises in dispute. Otherwise, he cannot be heard. In such an eventuality, the legal maxim 'ex turpi causa non oritur actio' applies.
38.Thus, in view of the above a person claiming the right to retain the possession must show his title in the property, otherwise equitable relief cannot be granted to him on any such technical ground.
Suit No. 138/09/07 Shree Navyuvak Ramlila Committee (Regd.) etc. v. Rishi Bansal etc. 18/26
29. It has already been observed that the Government has acquired the suit land and in this manner, the plaintiffs are seeking injunction against true owner. The Court is conscious of the precedent laid down by the Apex Court in Premji Ratansey Shah v. Union of India, 1995 (3) RRR 11, wherein it has been held that:
4.[T]he question, therefore, is whether an injunction can be issued against the true owner. Issuance of an order of injunction is absolutely a discretionary and equitable relief. In a given set of facts, injunction may be given to protect the possession of the owner or person in lawful possession. It is not mandatory that for mere asking such relief should be given. Injunction is a personal right under Section 41(j) of the Specific Relief Act, 1963; the plaintiff must have personal interest in the matter. The interest of right not shown to be in existence, cannot be protected by injunction.
5. It is equally settled law that injunction would not be issued against the true owner. Therefore, the courts below have rightly rejected the relief of declaration and injunction in favour of the petitioners who have no interest in the property. Even assuming that they had any possession, their possession is wholly unlawful possession of a trespasser and an injunction cannot be issued in favour of a trespasser or a person who gained unlawful possession, as against the owner.
Pretext of dispute of identity of the land should not be an excuse to claim injunction against true owner.
30.Counsel for the plaintiff has argued that the fundamental rights of the plaintiffs provided under Article 25 and 26 of the Constitution of India shall be protected. But, it is pertinent to note that Article 25 emphasized upon the practice of religious freedom by individuals. In other words, the freedom guaranteed by Article 25 is to profess, practice and propagate religion. Further, Article 26 mandates that subject to public order, morality and health, every religious denomination or any section thereof shall have the Suit No. 138/09/07 Shree Navyuvak Ramlila Committee (Regd.) etc. v. Rishi Bansal etc. 19/26 right to establish and maintain institutions for religious and charitable purposes, to manage its own affairs in matters of religion, to own and acquire movable and immovable property and to administer such property in accordance with law. But, the above said Articles of the Constitution of India do not provide any fundamental right to any person or any religious denomination or section to trespass over public land and construct any structure for himself/itself for religious purpose or to profess, practice and propagate the religion through the same.
31.Counsel for the plaintiff has argued that the plaintiff society has been organizing ramlila in the park and D-2 uses to grant permission for holding the same every year. It is right that D-2 uses to grant permission to the plaintiff society to hold ramlila in the impugned park, but the said permission does not grant/provide any right to the plaintiffs to raise any structure whatsoever in the impugned park under the garb of the said permission.
32.Counsel for the plaintiff has argued that had the Court not been satisfied with the prima facie case made out by the plaintiffs, it would not have granted interim injunction in favour of plaintiffs vide order dated 23.09.1997. The Court is of the view that at the time of deciding temporary injunction application in such given circumstances, status quo is usually preserved and the rights of the respective parties are finally adjudicated upon only after appreciation of evidence led by the parties during trial. Hence, temporary injunction granted in favour of the plaintiffs does not create any right, or suggest to draw inference, in favour of the plaintiff.
Suit No. 138/09/07 Shree Navyuvak Ramlila Committee (Regd.) etc. v. Rishi Bansal etc. 20/26
33. In the present facts and circumstances, the Court is guided by the precedent laid down by the Hon'ble Delhi High Court in Ashok Kapoor v. Municipal Corporation of Delhi, in CS (OS) no. 2045/2008 decided on 11.03.2014, has held that:
25. The Supreme Court in S.P. Chengalvaraya Naidu Vs. Jagannath AIR 1994 SC 853 has held that today the Courts are inundated by land grabbers, tax evaders and other unscrupulous persons from all walks of life and time has come for the Courts to respond appropriately. Similarly, in Dalip Singh Vs. State of U.P. (2010) 2 SCC 114 it was held that to meet the challenge passed by the new creed of litigants who shamelessly resort to falsehood and unethical means, the Courts from time to time have to evolve new rules. Unless the Courts keep pace with the times and with the situations which they are called upon to meet today, the Courts would be failing in their duty. Hon'ble Mr. Bhagwati J. in Bandhua Mukti Morcha Vs. Union of India 1984 (3) SCC 161 echoed the same sentiment by observing that in the center of a social order changing with dynamic pace, the Court needs to balance the authority of the past with the urges of the future.
26. Once it is found that the case pleaded by the plaintiff is patently false as per the documents filed by the plaintiffs themselves, and that the plaintiffs are grabbers of and encroachers over public land, I fail to see as to why the Court should come to the rescue of such plaintiffs. It cannot be lost sight of that the plaintiffs are seeking the relief of permanent injunction against their forcible dispossession.
The Courts while granting injunctions albiet temporarily have besides the ingredients of prima facie case, balance of convenience and irreparable loss and injury have also applied the test of public interest. The grant of the relief of permanent injunction also being a discretionary one, I fail to see as to why the said test of public interest be not applied at the stage of grant of permanent injunction also. When we look at the matter in this light, what emerges is that protecting the possession of the seven plaintiffs is to the prejudice of millions of other residents of the city who are also to be served by the defendant MCD and other governmental agencies. Allowing the plaintiffs to continue usurping public land amounts to depriving the other citizens from use of the said open space, whether for a wider road or for use as a pavement / berm along with the road.
Suit No. 138/09/07 Shree Navyuvak Ramlila Committee (Regd.) etc. v. Rishi Bansal etc. 21/26
30. The plaintiffs having indulged in illegal act, this Court cannot become privy to continuation thereof.
32. The said land is thus to be dealt with in accordance with Chapter XV of Delhi Municipal Corporation Act containing Sections 298 to 330 and under which also there is no requirement for taking legal recourse for removal of encroachment on the street.
Applying the above legal position in present facts and circumstances, the plaintiffs have failed to prove existence of any right in their favour which is to be protected through grant of perpetual injunction. Hence, issue no. 4 is decided against the plaintiffs.
34.Issue No. 1:
The onus to prove this issue was upon D-2. The case of D-2 is that members of Ramlila Committee had encroached upon the temporary room existing in the impugned park and put some idols in it and further, D-2/MCD could remove the said encroachment under the provisions of Sections 321 and 322 of the DMC Act. It is right that no notice was required to be given by MCD while removing any obstruction or encroachment, under Sections 321 and 322 of the DMC Act, in the circumstances claimed by D-2/MCD. However, it is worth noting that no provision of the DMC Act bars the aggrieved party from approaching the Civil Court for seeking protection against the action taken under Sections 321 and 322 of the said Act. Hence, issue no. 1 is decided against the defendant no. 2.
35.Issue No. 2:
The onus to prove this issue was upon D-2. But, D-2 has failed to show as to what equally efficacious relief could have been obtained by plaintiffs by any other usual mode of proceeding. Admittedly, no notice of demolition had Suit No. 138/09/07 Shree Navyuvak Ramlila Committee (Regd.) etc. v. Rishi Bansal etc. 22/26 been served upon the plaintiff society by D-2, which could have provided cause of action to the plaintiff to approach Appellate Tribunal constituted under Section 347-A of the DMC Act. Section 347-E bars jurisdiction of the Courts in certain circumstances. But, the present facts and circumstances of the case do not fall under the provision of Section 347-E of the said Act. Hence, the present suit cannot be said to be not maintainable under the provision of Section 41 (h) of the Specific Relief Act, 1963. However, from the observations made while deciding issue no. 4, it is clear that the plaintiffs had come to the Court seeking protection against demolition of alleged temple and manch constructed over the public land. Accordingly, they are admittedly trespassers over the public land. It is trite law that person who claims equity must also do equity. The construction of any unauthorized structure over public land itself is not permissible. Hence, the conduct of the plaintiffs is such which disentitles them to the assistance of the Court. Hence, no injunction can be granted to them by provision of Section 41 (i) of the Specific Relief Act, 1963. Issue no. 2 stands decided accordingly.
36.Issue No. 3:
The onus to prove this issue was upon D-2. It has been already observed while deciding issue no. 4 that the plaintiffs have failed to show existence of any right in their favour which is to be protected through grant of perpetual injunction. Furthermore, it has also been observed that the memorandum of association of the plaintiff society does not bear any aim and object so as to look after the affairs of the impugned temple or manch. Hence, the plaintiff no.1/society has acted beyond its aims and objects. The competence of plaintiff no. 2 in filing the present suit has also not been proved. In these Suit No. 138/09/07 Shree Navyuvak Ramlila Committee (Regd.) etc. v. Rishi Bansal etc. 23/26 circumstances, it is held that plaintiffs have no locus standi to file the present suit. Issue no. 3 is decided in favour of D-2.
37.Relief:
The suit of the plaintiff is dismissed. Further, it has been proved that the plaintiffs have approached the Court seeking protection from demolition of the suit property (the temple and the manch) which had been raised over public land and the same was admittedly an act of trespass. The plaintiffs could not even prove existence of any right in their favour which is to be protected through grant of perpetual injunction. They enjoyed the benefits of temporary injunction for more than 17 years. The plaintiff society has initiated this litigation on the premise that it had been established for the purpose of looking after the affairs of the temple. But the said contention has been proved to be false. By filing the present case, the plaintiffs have wasted not only the time, energy and funds of a statutory body/MCD, but also precious judicial time of this Court. The Apex Court in Ramrameshwari Devi v. Nirmala Devi, (2011) 8 SCC 249, has held that:
45.We have carefully examined the written submissions of the learned Amicus Curiae and learned counsel for the parties. We are clearly of the view that unless we ensure that wrong- doers are denied profit or undue benefit from the frivolous litigation, it would be difficult to control frivolous and uncalled for litigations. In order to curb uncalled for and frivolous litigation, the courts have to ensure that there is no incentive or motive for uncalled for litigation. It is a matter of common experience that court's otherwise scarce and valuable time is consumed or more appropriately wasted in a large number of uncalled for cases.
54.While imposing costs we have to take into consideration pragmatic realities and be realistic what the defendants or the respondents had to actually incur in contesting the litigation before different courts. We Suit No. 138/09/07 Shree Navyuvak Ramlila Committee (Regd.) etc. v. Rishi Bansal etc. 24/26 have to also broadly take into consideration the prevalent fee structure of the lawyers and other miscellaneous expenses which have to be incurred towards drafting and filing of the counter affidavit, miscellaneous charges towards typing, photocopying, court fee etc.
55.The other factor which should not be forgotten while imposing costs is for how long the defendants or respondents were compelled to contest and defend the litigation in various courts. The appellants in the instant case have harassed the respondents to the hilt for four decades in a totally frivolous and dishonest litigation in various courts. The appellants have also wasted judicial time of the various courts for the last 40 years.
56.On consideration of totality of the facts and circumstances of this case, we do not find any infirmity in the well reasoned impugned order/judgment. These appeals are consequently dismissed with costs, which we quantify as Rs.2,00,000/- (Rupees Two Lakhs only). We are imposing the costs not out of anguish but by following the fundamental principle that wrongdoers should not get benefit out of frivolous litigation.
57. The appellants are directed to pay the costs imposed by this court along with the costs imposed by the High Court to the respondents within six weeks from today.
The said precedent has been followed by the Hon'ble Delhi High Court in Abhinav Outsourcing Pvt. Ltd. v. Sunita Seth, 186 (2012) DLT 689, wherein the Court has held that:
9. [T]he Supreme Court in the recent judgment of Ramrameshwari Devi & Ors. Vs. Nirmala Devi (2011) 8 SCC 249 has observed that it is high time that actual and realistic costs must be imposed in order to discourage unnecessary litigation.
Suit No. 138/09/07 Shree Navyuvak Ramlila Committee (Regd.) etc. v. Rishi Bansal etc. 25/26 This Court is also guided by the observations made by the Hon'ble Delhi High Court in case of Ashok Kapoor, supra, wherein the Court has held that:
34. The suit as well as the applications are accordingly dismissed.
Each of the plaintiffs is further burdended with costs of Rs.25,000/- payable to the defendant MCD within one month of this order as exemplary costs for filing a false case and for compensating the defendant MCD for the period of interim stay in this suit, which now, on dismissal of suit, stands vacated.
Hence, cost of Rs. 20,000/- is imposed upon the plaintiffs to be deposited by them with Prime Minister's Relief Fund within one month of this order. Decree sheet be prepared accordingly.
File be consigned to Record Room.
Announced in the open Court (Naveen Gupta)
nd
on day of 22 December, 2014 Additional Senior Civil Judge cum Judge, Small Causes Court cum Guardian Judge, North-West District, Rohini, Delhi.
Suit No. 138/09/07 Shree Navyuvak Ramlila Committee (Regd.) etc. v. Rishi Bansal etc. 26/26