Delhi District Court
Shiv Bhushan Tiwari vs Dda And Anr on 15 May, 2024
-1-
IN THE COURT OF MS. DISHA SINGH, CIVIL JUDGE-02
WEST DISTRICT, TIS HAZARI COURTS, DELHI
SUIT NO.606804/2016
CNR NO. DLWT03-000004-2002
IN THE MATTER BETWEEN:
Sh. Shiv Bhushan Tiwari (since deceased) through LRs:-
1). Smt. Vimla Tiwari
W/o Late Shiv Bhushan Tiwari
2). Sanjay Tiwari
S/o Late Sh. Shiv Bhushan Tiwari
3). Rakesh Tiwari
S/o Late Sh. Shiv Bhushan Tiwari
4). Ms. Manju Shukla
D/o Late Sh. Shiv Bhushan Tiwari
5). Ms. Anjali
D/o Late Sh. Shiv Bhushan Tiwari
..........................PLAINTIFFS
VERSUS
1). Delhi Development Authority
through Vice Chairman,
Vikas Sadan, New Delhi-110023
2). The Deputy Director (Damages)
Delhi Development Authority,
Suit No.606804/2016 Shiv Bhushan Tiwari Vs. DDA Page-1/28
-2-
Vikas Sadan, New Delhi-110023.
Sh. Shambhu Nath Tiwari (since deceased) through LRs:-
3). Smt. Hira Devi
W/o Late Sh. Shambhu Nath Tiwari
4). Sh. Ram Kirpal Tiwari
S/o Late Sh. Shambhu Nath Tiwari
5). Sh. Vijay Tiwari
S/o Late Sh. Shambhu Nath Tiwari
6). Smt. Mithlesh Shukla
D/o Late Shambhu Nath Tiwari
7). Smt. Uma Mishra
D/o Late Sh. Shambhu Nath Tiwari
8). Sh. Raj Kumar Tiwari S/o Late Sh. Shambhu Nath Tiwari
.....................DEFENDANTS
Suit filed on :- 16.04.2002
Judgment Reserved on :- 09.05.2024
Date of decision :- 15.05.2024
SUIT FOR PERMANENT AND MANDATORY
INJUNCTION
JUDGMENT
By this judgment, this Court shall adjudicate the present suit instituted by the plaintiff against the defendants seeking the Suit No.606804/2016 Shiv Bhushan Tiwari Vs. DDA Page-2/28 -3- decree of permanent and mandatory inunction. Before adjudicating upon the issues framed in the present suit, let us first state the pleadings in the present suit concisely, which are as follows:
Pleadings of the Plaintiff: -
1. The plaintiff has instituted the present suit seeking decree of permanent injunction thereby seeking restraining of the defendants from exclusively issuing letter of damages and ancillary documents in favour of Shambhu Nath Tiwari w.r.t property bearing no. 5090, House no. T-440, Ground Floor, Phatak Mishri Khan, Paharganj, New Delhi-110055 [hereinafter "Suit Property"] whereby defendant is depriving the plaintiff illegally of his lawful and legal right over the above said suit property. The plaintiff is further claiming a decree of mandatory injunction against defendants, directing them to issue letters of damages and other ancillary documents w.r.t. suit property in favour of the plaintiff.
2. It has been averred in the plaint that, the plaintiff is the owner of the property no.5090, House no. T-440, Phatak Misri Khan, Paharganj, New Delhi-110055 and is residing on the ground floor of the said property as an owner since 1970 having ration card, electricity, water, gas and telephone connection and enrolled on the electoral list of the area along with his family members. That the said Suit No.606804/2016 Shiv Bhushan Tiwari Vs. DDA Page-3/28 -4- property and the land beneath is owned by DDA and only the defendant no.2 as an employee of DDA is empowered to charge damages from the lawful occupants as is the case of the plaintiff.
3. It has been further averred that, the defendants, i.e., DDA to be specific, have been issuing letters of damages to the elder brother of the plaintiff i.e. Shambhu Nath Tiwari i.e., defendant no. 3 herein, who is residing on the first floor of the suit premises and the plaintiff as a respectful younger brother never objected to the same as he has also contributed towards the payments made by his elder brother without asking for any receipt from him.
4. That the plaintiff has written letters dated 24.05.2000, 29.11.2000 and 21.02.2002 to defendant no.2 asking for reopening of demand of damages file no.D/PNJ/FMK/443, pertaining to the property in dispute. That the plaintiff has been summoned by the Estate Officer, DDA to appear before him U/s 4 (1) and Section 7 (3) of the Public Premises (Eviction of Unauthorized Occupant), Act, 1971 [hereinafter "the PP Act"] for 17.08.2000, 08.12.2000 and 13.03.2001.
5. That the defendant came to know from certain sources that, the defendant no.2 is issuing letters of damages to his elder brother exclusively who is residing on the first floor with a view to deprive the plaintiff and his family Suit No.606804/2016 Shiv Bhushan Tiwari Vs. DDA Page-4/28 -5- members of his rightful and legal ownership of the property, in which he is residing uninterrupted since 1970 with all the civic and municipal facilities. That the exclusive letter of damages to the elder brother of the plaintiff residing on the first floor only can be used against the plaintiff in suit no.8/2002 (New No. 608149/2016) titled as 'Shambhu Nath Tiwari Vs. Shiv Bhushan Tiwari' pending in the Court of the then Ld. Civil Judge.
6. That since the matter pertaining to the suit is of urgent nature, the plaintiff was unable to comply with the provision of Section 80 CPC r/w Section 53-B of the DDA Act, 1957 and seeks exemption from observing the mandatory provisions of law. Hence, the present suit.
Pleadings of the defendant no.1/DDA: -
7. That, written statement was filed on behalf of defendant no.1 and 2/DDA wherein, inter alia, it was submitted that the suit of plaintiff is not maintainable for want of notice U/s 53-B of DD Act, 1957 which is mandatory and compulsory before filing the suit against the DDA and that the suit has not been properly valued for the sake of Court fee and jurisdiction thereof. It has been further submitted that the land underneath House no. T-440, Phatak Mishri Khan, Pahar Ganj, Delhi approx. 11 sq. yds. is under unauthorized occupation of Sh. Shambhu Nath Tiwari S/o Sh. Ganesh Datt. That is a government land and Shambhu Suit No.606804/2016 Shiv Bhushan Tiwari Vs. DDA Page-5/28 -6- Nath has been assessed for payment of damages as residential. It has been denied by defendant/DDA that plaintiff Sh. Shiv Bhushan Tiwari has been assessed for payment of damages and he is making the payment to DDA. It has been further stated that the assessment of damages has been made in the name of Sh. Shambhu Nath Tiwari as explained. That it is, however, reiterated that assessment of damages has been made in the name of Sh.
Shambhu Nath Tiwari, who has made payment of damages and outstanding balance i.e. Rs.1,333.60/- + interest. That for the period from April'1995 onwards, the demand has already been made but no information about payment has been received from the assessee. That land in question is a government land/property and due to unauthorized occupation, assessment of damages has been made in the name of Shambhu Nath Tiwari for using the government property. It has been further stated that since the damages is being assessed in favour of Shambhu Nath Tiwari on account of his unauthorized occupation over the government land and, therefore, plaintiff has no locus standi to file the present suit.
Pleadings of the defendant no.3: -
8. That, written statement was filed on behalf of defendant no.3 denying the allegations as contained in the plaint wherein, inter alia, it was submitted that the suit filed by the plaintiff is liable to be dismissed since the damage is Suit No.606804/2016 Shiv Bhushan Tiwari Vs. DDA Page-6/28 -7- being assessed by the defendant no.1 & 2 in favour of defendant no.3 on account of his unauthorized occupation over the government land and he is responsible for paying the damages to the DDA. It is further submitted that the DDA has authorized the defendant no.3 to use and occupy the premises subject to payment of damages which he is paying regularly without default.
9. It has been admitted by defendant no.3 that the land beneath the property belongs to DDA and the said authority is charging the damages from the answering defendant. Defendant no.3 is having ration card, election, water and electricity connection in his name, even in the DDA records, his name appears as an owner of the super structure of the property in question and he has been assessed for damages since long. It is further submitted that the plaintiff with malafide intention is trying to assert his right over the property in question after the defendant no.3 had refused the plaintiff to use and occupy the premises in question. That defendant no.3 has also filed the suit prior to the suit in question against the plaintiff for recovery of the possession and damages, which is pending.
It has been further stated that after the defendant no.3 has withdrawn his permission to use and occupy, the plaintiff has filed present false and frivolous. It has been further submitted that the plaintiff does not reside in the premises and the defendant no.3 has been assessed for the payment Suit No.606804/2016 Shiv Bhushan Tiwari Vs. DDA Page-7/28 -8- of damages as per DDA record. It has been further submitted that the other defendants are fully justified in issuing the letter for damages in the name of answering defendant as the premises in question has been allotted to the defendant no.3 and the defendant no.3 has been making the payment of damages as per letter of demand raised by defendant no.1 & 2 in his favour.
Replication: -
10.That, no replication has been filed by the plaintiff to the written statements of the defendants.
Issues: -
11.From the pleadings of the parties, following issues were framed in the suit vide order dated 20.07.2007 and additional issue no. 4A framed vide order dated 11.01.2024: -
(1) Whether the plaintiff is entitled to decree of permanent injunction as prayed for? (OPP) (2) Whether the plaintiff is entitled to decree of mandatory injunction as prayed for? (OPP) (3) Whether the suit is bad for want of statutory notice U/s 53B of DD Act? (OPD) (4) Whether the suit has not been properly valued for the purpose of Court fee and jurisdiction? (OPD) Suit No.606804/2016 Shiv Bhushan Tiwari Vs. DDA Page-8/28 -9- (4A) Whether this Court does not have the jurisdiction to try and adjudicate the present suit in terms of Section 15 of the Public Premises Act, 1971? (OPD) (5) Relief.
Plaintiff Evidence: -
12. In order to prove the case, plaintiff got examined three witnesses i.e. himself as PW-1, Sh. R.S. Sharma as PW-2 and Sh. Kamleshwar Upadhyay as PW-3.
a). PW-1 led his evidence by way of affidavit which is Ex.PW-1/A wherein he reiterated the averments made in the plaint. PW-1 also relied upon certain documents which are as under: -
Identification Description
Mark
Ex.PW-1/1 Original electricity bill.
Ex.PW-1/2 Original water bill.
Ex.PW-1/3 Copy of ration card.
Ex.PW-1/4 Copy of gas connection.
Ex.PW-1/5 Copy of telephone bill no. 030608718.
Mark-A Copy of duplicate ration card bearing
no.199600 (de-exhibited from Ex.PW- 1/6).
Ex.PW-1/7 to Copy of election ID of plaintiff, his wife and son.
Ex.PW-1/9 (OSR) Suit No.606804/2016 Shiv Bhushan Tiwari Vs. DDA Page-9/28 -10- Ex.PW-1/10 Application dated 04.01.1997. Ex.PW-1/11 & Reminders dated 24.05.2000 and 29.11.2000.
Ex.PW-1/12 Ex.PW-1/13 & Letters dated 01.08.2000 and 03.01.2001.
Ex.PW-1/14 Mark B-1 Copy of letter/complaint dated 21.02.2002 (de-exhibited from Ex.PW- 1/15).
Mark-B2 Copy of acknowledgement issued by DDA (de-exhibited from Ex.PW-1/16).
PW-1 was also cross-examined by the counsel for defendants at length.
b). PW-2 Sh. R.S. Sharma, Dealing Asst. from Delhi Jal brought the original record from the beginning of water connection no.32910 in the name of Sh. Siv Bhushan S/o Sh. Ganesh Dutt, H.No.5090, T-440, Pahar Ganj, New Delhi. He exhibited the original meter diary from 27.12.1996 as Ex.PW-2/1 and the bill issued by his department as Ex.PW-2/2. It was further deposed by PW-2 that payment in respect of water charges was being paid by Sh. Shiv Bhushan Tiwari, owner of the connection. It is stated by him that he cannot tell whether Sh. Shiv Bhushan Tiwari completed the necessary formalities for obtaining the new water connection. It is stated by him that he has not seen all the records and that is why he cannot say, however, DJB gives water connection to any individual on Suit No.606804/2016 Shiv Bhushan Tiwari Vs. DDA Page-10/28 -11- completion of the all necessary formalities.
PW-2 was also cross-examined at length on behalf of defendants and during cross-examination two documents i.e. meter diary and summary report were exhibited as Ex.PW-2/D1 (OSR) and Ex.PW-2/D2 (OSR).
c). PW-3 Kamleshwar Upadhyay, LDC from Food & Supply Department, Circle-23, Karol Bagh, Delhi brought the summoned record i.e. original master register for the year 1995-96 for permanent record i.e. original master register for the year 1995-96 for permanent consumer cards of Food & Supplies and Consumer Affairs Department, Delhi, containing the entries from S.No.1 to 1816. He further deposed that name Shiv Bhushan is at page no.371 against registration no.1688. He exhibited on record the attested photocopy of the said page as Ex.PW- 3/1 (OSR) bearing registration no.1688 encircled at point A. He further exhibited on record the attested copy of the computer record of the renewed ration card of Sh. Shiv Bhushan Tiwari which was renewed in the year 2005 in lieu of earlier card issued in the year 1995 as Ex.PW-3/2 (OSR).
PW-3 was also cross-examined on behalf of defendants at length.
Thereafter, the plaintiff's evidence was closed vide order dated 27.07.2011 and the matter was proceeded further for Suit No.606804/2016 Shiv Bhushan Tiwari Vs. DDA Page-11/28 -12- defence evidence.
Defendant Evidence: -
13. In defence evidence, the defendant no.1/DDA got examined two witnesses i.e. Sh. D.R. Mehto, Asst.
Director, Damage Section, Land & Management Department, DDA as DW-1 and Sh. Mohd. Aslam Khan, Retired Asst. Directors from Damage Section in Land Management Department, DDA as DW-2.
a). DW-1 Sh. D.R. Mehto, Asst. Director, Damage Section, Land & Management Department, DDA tendered his evidence by way of affidavit which is Ex.DW-1A. DW-1 also relied upon certain documents which are as under: -
Identification Description
Mark
Ex.DW-1/1 Nazul agreement, 1937.
Ex.DW-1/2 (OSR) Photocopy of demand notice dated 29.05.1995 Ex.DW-1/3 (OSR) Photocopy of Estate Officer dated 12.03.1974.
Ex.DW-1/4 (OSR) Photocopy of noting portion dated 24.09.1979 of Estate Officer file.
Ex.DW-1/5 (OSR) Photocopy of application dated 27.03.1974 sent and signed by Sh.
Shambhu Nath.
Ex.DW-1/6 (OSR) Photocopy of order of Estate Officer dated 19.08.1975.
Ex.DW-1/7 (OSR) Photocopy of order of Estate Officer Suit No.606804/2016 Shiv Bhushan Tiwari Vs. DDA Page-12/28 -13- dated 04.03.1975.
Ex.DW-1/8 (OSR) Photocopy of noting portion of Estate Officer/damage file.
Ex.DW-1/9 (OSR) Photocopy of noting portion of Estate Officer/damage file.
Ex.DW-1/10 (OSR) Photocopy of noting portion of Estate Officer/damage file.
Ex.DW-1/11 (OSR) Demand notice dated 02.11.1979 in the name of Shambu Nath.
Ex.DW-1/12 (OSR) Photocopy of list of encroachers regarding damage assessee Ex.DW-1/13 (OSR) Photocopy of notice dated 16.05.2007 in the name of Shambhu Nath.
Ex.DW-1/14 (OSR) Photocopy of notice dated 29.05.2006 in the name of Shambhu Nath.
Ex.DW-1/15 (OSR) Photocopy of statement of Sh.
Shambhu Nath before the Estate Officer recorded on 04.03.1974.
Ex.DW-1/16 (OSR) Photocopy of noting portion of Estate Officer/damage file.
Ex.DW-1/17 (OSR) Photocopy of notice dated 31.08.1995 in the name of Shambhu Nath.
Ex.DW-1/18 (OSR) Photocopy of demand notice dated 27.01.1974 in the name of Shambhu Nath.
Ex.DW-1/19 (OSR) Notice dated 08.05.1980 in the name of Sh. Shambhu Nath.
Ex.DW-1/20 (OSR) Photocopy of notice dated 28.07.1980.
Suit No.606804/2016 Shiv Bhushan Tiwari Vs. DDA Page-13/28 -14- Ex.DW-1/21 (OSR) Photocopy of notice dated 05.01.1980.
Ex.DW-1/22 (OSR) Photocopy of notice dated 29.12.1983 Ex.DW-1/23 (OSR) Photocopy of notice dated 28.03.2000.
Ex.DW-1/24 (OSR) Photocopy of notice dated 21.07.1981.
Ex.DW-1/25 (OSR) Photocopy of notice dated 22.07.2002.
Ex.DW-1/26 (OSR) Photocopy of notice dated 13.09.2002.
Ex.DW-1/27 (OSR) Photocopy of notice dated 09.09.2002.
Ex.DW-1/28 (OSR) Photocopy of notice dated 03.01.2003.
Ex.DW-1/29 (OSR) Photocopy of notice dated 03.01.2003.
Ex.DW-1/30 (OSR) Photocopy of notice dated 29.01.2003.
Ex.DW-1/31 (OSR) Photocopy of notice dated 29.01.2003.
Ex.DW-1/32 (OSR) Photocopy of notice dated 21.02.2003.
Mark-A Receipt dated 20.12.2001 in the name of Shambhu Nath.
Mark-B Receipt dated 28.04.2000 in the name of Shambhu Nath.
Mark-C Receipt dated 28.04.2000 in the name of Shambhu Nath.
Mark-D Receipt dated 04.03.1974 in the Suit No.606804/2016 Shiv Bhushan Tiwari Vs. DDA Page-14/28 -15- name of Shambhu Nath.
Mark-E Receipt dated 10.09.1987 in the name of Shambhu Nath.
Mark-F Receipt dated 20.10.1987 in the name of Shambhu Nath.
Mark-G Receipt dated 26.03.1984 in the name of Shambhu Nath.
Mark-H Receipt dated 21.08.1995 in the name of Shambhu Nath.
Mark-J Photocopy of demand notice dated 13.03.1986.
DW-1 was cross-examined at length by Ld. counsel for plaintiff. During cross-examination DW-1 exhibited certain document i.e. copy of noting as Ex.DW-1/PX, survey report Ex.DW-1/PY. Further, a document Ex.DW- 1/P1 (OSR) was also confronted to DW-1, which was earlier marked as Mark-B1.
b). DW-2 Sh. Mohd. Aslam Khan, Retired Asst. Directors from Damage Section in Land Management Department, DDA, tendered his evidence by way of affidavit exhibited as Ex. DW-2/A and placed reliance on documents already exhibited by DW-1 as Ex. DW-1/1 to Ex. DW-1/32 and marked as Mark A to J. He also brought the originals of the said exhibits.
DW-2 was cross-examined at length by Ld. counsel for plaintiff.
Suit No.606804/2016 Shiv Bhushan Tiwari Vs. DDA Page-15/28 -16- Thereafter DE was closed on behalf of defendant/DDA vide order dated 21.02.2019.
With respect to DE on behalf of LRs of defendant no.3, it has come on record vide order dated 14.05.2019 that vide order dated 21.02.2019 in connected suit no.608149/2016, it was held that evidence in one case shall also be read in the present case and thereafter the Ld. counsel for LRs of defendant no.3 had sought some time to apprise the Court as to whether they want to lead evidence of LRs of defendant no.3 in the present matter or not. Thereafter, right of LRs of defendant no.3 to lead DE was closed vide order dated 19.09.2019 on the ground that despite opportunity and levy of cost, no DE was led on behalf of LRs of defendant no.3. The said order has attained finality as no challenge has been preferred on behalf of LRs of defendant no.3 against said order till date.
Decision with reasons: -
14.The final arguments have been extensively heard on behalf of all the parties at length. Written submissions were also filed on behalf of both the sides and same is a part of record. In final arguments and written submissions, the parties have placed reliance on their pleadings and evidence led by them and further reiterated the same. Therefore, the same are not being reiterated for the sake of brevity. That, the entire record has been carefully perused.
Suit No.606804/2016 Shiv Bhushan Tiwari Vs. DDA Page-16/28 -17-
15. Now, this Court shall proceed to deliberate upon the factual matrix and evidences in the matter at hand and give its issue-wise findings thereon. However, firstly this Court shall decide its finding on issue no. (4A) being a legal issue and thereafter other issues shall be decided.
16.Issue No. (4A) -
(4A) Whether this Court does not have the jurisdiction to try and adjudicate the present suit in terms of Section 15 of the Public Premises Act, 1971? (OPD) The onus to prove this issue was upon the defendant/DDA.
The present issue was framed at the instance of DDA on the basis of the preliminary objection taken by DDA in their written statement that, this Court does not have the subject matter jurisdiction to try and adjudicate the present suit in view of the bar of jurisdiction of Civil Courts under Section 15 of the PP Act, 1971. Before adverting to discuss Section 15 of the PP Act, let us first ponder upon the case of the plaintiff and the relief sought.
The brief case of the plaintiff is that, the plaintiff is the owner of the property no.5090, House no. T-440, Phatak Misri Khan, Paharganj, New Delhi-110055 and is residing on the ground floor of the said property as an owner since 1970. That the grievance of the plaintiff is that, the DDA have been issuing letters of damages to the defendant no. 3 Suit No.606804/2016 Shiv Bhushan Tiwari Vs. DDA Page-17/28 -18- herein, who is residing on the first floor of the suit premises, while plaintiff is claiming to be the owner of the suit property and has also been contributing towards the payment of damages to DDA under the PP Act. The plaintiff as well as defendant no. 3 in their respective pleadings has further admitted that, the land underneath the suit property is owned by DDA.
That, the plaintiff in fact approached the competent authority under the PP Act, for reopening of file no.D/PNJ/FMK/443, pertaining to the property in dispute and reassessing the damages in favour of the plaintiff w.r.t. the suit property. Henceforth, the plaintiff has instituted the present suit seeking decree of permanent injunction thereby seeking restraining of the defendants from exclusively issuing letter of damages and ancillary documents in favour of Shambhu Nath Tiwari w.r.t suit property whereby defendant is depriving the plaintiff illegally of his lawful and legal right over the above said suit property. The plaintiff is further claiming a decree of mandatory injunction against defendants, directing them to issue letters of damages and other ancillary documents w.r.t. suit property in favour of the plaintiff.
In order to prove its case, plaintiff has placed on record electricity bill as Ex. PW-1/1; water bill as Ex. PW-1/2; copy of ration card as Ex. PW-1/3; gas connection as Ex. PW-1/4; telephone bill as Ex. PW-1/5; copy of election Suit No.606804/2016 Shiv Bhushan Tiwari Vs. DDA Page-18/28 -19- identity cards as Ex. PW-1/7 to Ex. PW-1/9 (OSR). The plaintiff has further placed on record several documents of correspondences, letters and notices between plaintiff and competent authorities such as Estate Officer and DDA and tendered in evidence as Ex. PW-1/10 to Ex. PW-1/14 to the effect that plaintiff wishes to reopen the damages assessment file under Section 7 of the PP Act in his favour w.r.t. the suit property.
At this stage it is pertinent to mention that the plaintiff has claimed to be the owner of the structure built over the land, which is being claimed by the DDA. However, plaintiff has not placed a single document on record to show whether the land over which the suit property has been built was given in lease to the plaintiff by DDA or allotted by DDA to the plaintiff and the same also stands admitted by the plaintiff. It is further pertinent to mention that in fact the plaintiff is occupying the suit property as a mere unauthorized occupant as per his own admissions and has in fact applied to be assessed as an assessee for paying the damages to the concerned authority under Section 7 of the PP Act.
At this stage, it is pertinent to mention that the preamble to the PP Act provides that, "An act to provide for the eviction of unauthorized occupants from public premises and for certain incidental matters". Further, Section 2 (e), defines public premises as any premises belonging or Suit No.606804/2016 Shiv Bhushan Tiwari Vs. DDA Page-19/28 -20- taken on lease or requisitioned by or on behalf of the Central Government, Secretariat of either House of Parliament, Pubic Undertaking Company, any Corporation or Local Authority established/owned/controlled by Central Government, Company which is controlled by the Central Government, State Government including Metro Railway, University, Company under Major Court Trust Act, belonging to any State Government or Government of any Union Territory including NCT of Delhi, Cantonment Board, Authorities or Councils established under NDMC Act, DMC Act and any premises belonging to Delhi Development Authority.
Further, an unauthorized occupation has been defined U/s 2 (g) as the occupation by any person of public premises without authority from such application without authority for such occupation and includes the continuance in occupation by any person of the public premises after the authority whether by way of grant or any other mode of transfer, under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoever. Hence, in the present matter, admittedly plaintiff as well as defendant no. 3 both are unauthorised occupants on the land underneath belonging to DDA.
Now in the present matter, since it is an admitted position that, the land underlying the suit property belongs to DDA, Suit No.606804/2016 Shiv Bhushan Tiwari Vs. DDA Page-20/28 -21- thereby making DDA the owner of the underlying land and everything built over it. Hence, the plaintiff and in fact defendant no. 3 are mere unauthorised occupants, as per their own admissions, thereby occupying the suit property at the mercy and sweet will of the real owner i.e., government/DDA. Therefore, as per Section 15 of the PP Act, the competent authority governing the unauthorised occupants of the public premises is the Estate Officer and not a Civil Court. The relevant provisions of the PP Act are reproduced hereunder for brevity.
"15. Bar of jurisdiction.--No court shall have jurisdiction to entertain any suit or proceeding in respect of--
(a) the eviction of any person who is in unauthorised occupation of any public premises, or
(b) the removal of any building, structure or fixture or goods, cattle or other animal from any public premises under section 5A, or
(c) the demolition of any building or other structure made, or ordered to be made, under section 5B, or [(cc) the sealing of any erection or work or of any public premises under section 5C, or]
(d) the arrears of rent payable under sub-section (1) of section 7 or damages payable under sub- section (2), or interest payable under sub-section (2A), of that section, or Suit No.606804/2016 Shiv Bhushan Tiwari Vs. DDA Page-21/28 -22-
(e) the recovery of-- (i) costs of removal of any building, structure or fixture or goods, cattle or other animal under section 5A, or (ii) expenses of demolition under section 5B, or (iii) costs awarded to the Central Government or statutory authority under sub-section (5) of section 9, or
(iv) any portion of such rent, damages, costs of removal, expenses of demolition or costs awarded to the Central Government or the statutory authority."
[Emphasis Supplied] Further, Section 7 of the PP Act reads as under:
"7. Power to require payment of rent or damages in respect of public premises. - (1) Where any person is in arrears of rent payable in respect of any public premises, the estate officer may, by order, require that person to pay the same within such time and in such installments as may be specified in the order.
(2) Where any person is, or has at any time been, in unauthorised occupation of any public premises, the estate officer may, having regard to such principles of assessment of damages as may be prescribed, assess the damages on account of the use and occupation of such premises and may, by order, require that person to pay the damages within such time and in such installments as may be specified in the order.
(2A) While making an order under sub-section (1) or sub-section (2), the estate officer may direct that the arrears of rent or, as the case may be, damages shall be payable together with Suit No.606804/2016 Shiv Bhushan Tiwari Vs. DDA Page-22/28 -23- [compound interest] at such rate as may be prescribed, not being a rate exceeding the current rate of interest within the meaning of the Interest Act, 1978 (14 of 1978).] (3) No order under sub-section (1) or sub-section (2) shall be made against any person until after the issue of a notice in writing to the person calling upon him to show cause [within seven days from the date of issue thereof], why such order should not be made, and until his objections, if any, and any evidence he may produce in support of the same, have been considered by the estate officer.
(3A) If the person in unauthorised occupation of residential accommodation challenges the eviction order passed by the estate officer under sub-section (2) of section 3B in any court, he shall pay damages for every month for the residential accommodation held by him.] (4) Every order under this section shall be made by the estate officer as expeditiously as possible and all endeavor shall be made by him to issue the order within fifteen days of the date specified in the notice."
[Emphasis Supplied] Further, an appeal from the order passed the Ld. Estate Officer under Section 7 of the PP Act shall lie before the appellate officer of the rank of a District Judge as per Section 9 of the PP Act and , every order made by an estate officer or appellate officer under this Act shall be final and Suit No.606804/2016 Shiv Bhushan Tiwari Vs. DDA Page-23/28 -24- shall not be called in question in any original suit, application or execution proceeding and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act as per Section 10 of the PP Act, which reads as follows:
"9. Appeals. - (1) An appeal shall lie from every order of the estate officer made in respect of any public premises under [section 5 or section 5B] [or section 5C] or section 7 to an appellate officer who shall be the district judge of the district in which the public premises are situate or such other judicial officer in that district of not less than ten years standing as the district judge may designate in this behalf.
(2) xxx; and (3) xxx;
(4) xxx;
(5) xxx;
(6) For the purposes of this section, a presidency-town shall be deemed to be a district and the chief judge or the principal judge of the city civil court therein shall be deemed to be the district judge of the district.
10. Finality of orders. - Save as otherwise expressly provided in this Act, every order made by an estate officer or appellate officer under this Act shall be final and shall not be called in question in any original suit, application or execution proceeding and no injunction shall be Suit No.606804/2016 Shiv Bhushan Tiwari Vs. DDA Page-24/28 -25- granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act."
[Emphasis Supplied] Hence, it is evidently clear that, the competent authority for assessment of damages under Section 7 of the PP Act against an unauthorised occupant of the public premises is an Estate Officer, against whose order an appeal shall lie before Ld. District Judge. Further, no Court shall grant any injunction upon such matters, let alone pass any directions for assessment of the plaintiff for damages w.r.t. suit property under Section 7 of the PP Act, save otherwise provided by the Act. However, no such 'otherwise' case has been made out by the plaintiff herein. Therefore, as per Section 9 of the Code of Civil Procedure, 1908, the subject matter jurisdiction in Court is expressly barred by the provisions of Section 15 of the PP Act, as discussed above and same reads as under:
"9. Courts to try all civil suits unless barred.-The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.
Explanation.-A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may Suit No.606804/2016 Shiv Bhushan Tiwari Vs. DDA Page-25/28 -26- depend entirely on the decision of questions as to religious rites or ceremonies."
[Emphasis Supplied] Hence, issue no.(4A) is decided in favour of Defendant no. 1 and 2/DDA and against the plaintiff (through LRs).
17.Issue No. (1) and (2) -
(1) Whether the plaintiff is entitled to decree of permanent injunction as prayed for? (OPP) (2) Whether the plaintiff is entitled to decree of mandatory injunction as prayed for? (OPP) The onus to prove this issue was upon the plaintiff.
Since issue no. (4A) has been decided against the plaintiff as discussed in detail herein above, therefore, for want subject matter jurisdiction in this Court, these issues are also decided against the plaintiff since no injunction can be granted in matters pertaining to Section 7 of the PP as the competent authority to pass any such orders vest with the Estate Officer or the Appellate Authority under Section 9 of the PP Act read with Section 10 of the PP Act.
Hence, issue no. (1) and (2) are decided against the plaintiff (through LRs) and in favour of the defendants.
18.Issue No. (3) and (4) -
Suit No.606804/2016 Shiv Bhushan Tiwari Vs. DDA Page-26/28 -27- (3) Whether the suit is bad for want of statutory notice U/s 53B of DD Act? (OPD) (4) Whether the suit has not been properly valued for the purpose of Court fee and jurisdiction? (OPD) The onus to prove this issue was upon the defendants. However, onus of issue no. (3) specifically lies upon defendant no. 1 and 2 i.e., DDA.
With regard to issue no. (3), it is the settled principle of law that, once DDA has accepted summons and filed written statement in the matter, the above said objection is said to be waived of.
Further, w.r.t. issue no. (4), except for raising the objection in the written statement no evidence has been led. Further, this Court is devoid of subject matter jurisdiction.
Accordingly, issue no. (3) and (4) are against the plaintiff (through LRs) as well defendants.
Issue no.(5) -
(5) Relief - In view of the findings given on issues no. (4A) and (1) to (4), pleadings of the parties, testimonies of the witnesses, evidence led by the parties and arguments made, the suit of the plaintiff is hereby dismissed. There are no orders as to costs.
Let decree sheet be prepared accordingly.
Suit No.606804/2016 Shiv Bhushan Tiwari Vs. DDA Page-27/28 -28- File be consigned to record room after completing the necessary formalities.
DISHA Digitally signed by DISHA SINGH (This judgment contains 28 pages and each page SINGH Date: 2024.05.15 17:24:08 +0530 has been signed by the undersigned) (DISHA SINGH) Civil Judge-02, West, Announced in the open Court on Tis Hazari Courts, Delhi 15.05.2024 Suit No.606804/2016 Shiv Bhushan Tiwari Vs. DDA Page-28/28